PFAS Litigation May Bring Down More Companies

your host David Schultz. Per and polyfloral alcohal substances, also known as p FASS, have affected countless lives, both the people who were exposed to them and the people who made them. These so called forever chemicals are some of the most durable and water resistant substances known to man. Unfortunately, as their nicknames suggests, they also almost never break down the environment, instead accumulating in the soil, in water, and

in the human body. We hear at Bloomberg Law have been covering Fast for several years now, but a new story from our colleague Andrew Wallander indicates that this legal

saga may have moved into a new chapter. Andrew looked at data on thousands of p FAST lawsuits, and he found that the scope of the plaintiffs targets is widening not just to the early p facet adopter DuPont, but also to other companies, including the chemicals a manufacturing giant three M. The playing field for all of these suits is something called multi district litigation or m d L, which is definitely not to be confused with a class

action suit, very very different. I asked Andrew to explain to me how this is affecting the trajectory of all these lawsuits and also just exactly what multi district litigation actually is. Yeah, so it's a bit of a complicated topic, but essentially the goal is when you've got a number of lawsuits on the same topic, it's a process meant

to standardize simplify it a bit. So if you've got two or more lawsuits on the same topic filed in at least two different federal courts, one of the parties in the lawsuits can move to centralize all those proceedings um in sort of one docket overseen by one judge in a single district, and that's meant to quicken up all the pre trial motions, the hearings, the discovery um and make it so that you don't have a bunch of different decisions being made by different courts on the

same topic. Uh. And so you know, unlike class action lawsuits where everyone has the same injury, with multi district litigation cases, it's often, you know, the same thing that's causing an injury, but the injury to parties can be different and it can vary. Yeah. That's one thing that really confused me initially when I was covering this is that we're not talking about a class action here, which is lots of people suing one party over the same thing.

This is lots of people suing a similar party over different things, but they're all related, and you know, all the suits are buying just for efficiency's sake. It's exactly exactly. So, you know, it makes sense, or at least it sounds like it makes sense. But there are some people who criticize this multi district litigation or mdls it's called. Can you talk a little bit about that, about some of

the criticisms of it. Yeah, So some of the people I talked to, and especially those on the defendant side, brought up concerns that with multi district litigation, it encourages plaintiffs attorneys to file uh. And it attracts more lawsuits uh than otherwise would be filed uh and and and their criticisms were that where that you know, it's easy for these people to come in and join this multi

district litigation when the discovery is already underway. A lot of the heavy lifting, the heavy leg work is is taking place already um. And so their criticism was that these people kind of come in and UM joined the lawsuit and try to get part of a settlement before one comes out. Whether that's true or not to be seen, but that's one of the criticisms. So it kind of lowers the bar for filing a suit. And you know, when you lower the bar, I guess you get some

suits that maybe aren't with merit right. And that's that's the argument, is that that you know, there's not a high bar to bring some of these cases and and you can directly file into an MDL as well. UM. Of course, as the case goes on, some of those cases will be weeded out and and and dismissed or transferred out of the MDL. So let's talk about the the MDL for p Fast or should I say the latest one, because we've already had to here's the third. Uh.

It's very confusing, as p F as always is. Can you sort through, um, how this one is different from the other two? Yeah? Absolutely, So the other two we had one in the mid to late two thousand's. UM. That one was only a few dozen cases, not very big. It focused on teflon uh. And so that was primarily against DuPonts uh and the tents around or So uh. And and for the years after that, there was a number of lawsuits filed over pollution from a plant in

West Virginia, UM, also against DuPont. And that was one specific site. That was one specific site exactly. UM. And so now a different company, more zones that plant. UM. But you're you're probably familiar with it. UM. There are a number of movies that came about from from that case, Dark Waters, The Devil we know Star Dark Water starring Mark Ruffalo Yep, yep, exactly. Uh. And by the way, uh, the man that Mark Ruffalo played uh in that movie, Rob a Lot, was a former guest on this very podcast.

Fantastic Just to brag a little bit. UM. But I get the sense that you know, for the third md L, which is the one that we're talking about here. It's not just one site, it's not just one location. This is way bigger and exactly exactly so, so this multi district litigation case is focused on a type of firefighting foam called aqueous film forming foam or a triple uh. And so it is a much bigger case because it involves a number of companies. It's not just DuPont that's

being sued. It's it's three m keim Guard, all these different other companies. Uh, anyone that made p fast that went into products or that um produced the secondary products, actually made the foam or sold the phone, they're being sued as well. So there's a lot more parties involved. The scope is much wider. This is of course nationwide because uh, for years the military has required a triple left to be used at military bases and airports as well. They are they follow mill spec uh, and so they

have to have a triplet at airports Mill spec. That's uh, you know, the the specifications that you know, stuff that the military uses has to meet exactly to put it sort of in our fully um and you know we should talk about you know, this key fast is of course not good for the environment, not good for human health. But you know, it's worth repeating that this is some of the only stuff that can put out fires on

air force bass on airports in a safe way. I mean, this is this is this is vital stuff that can't be substituted. Yeah, absolutely so, I mean, and that that's why this has been used so widely and been required by the military. Is is um. This type of foam is used for liquid fuel fires that are fueled by by oil gas and those fires get so hot that water is ineffective. It just evaporates before it can have

an effect. Um. And so this this foam also it will cover a fire, it will deulse it um suffocated essentially with with this foam. And it's because of the fast and the way that it's so um durable, it doesn't it doesn't break down easily, uh, that it's able to have this effect. But oh yeah, So there's been work under way to figure out other other ways to fight these fires, not using p FAST, and there's some substitutes that are being looked at now, but for the moment,

p fast has still been widely used. So for your story, you did some you know, real data diving, and you looked into the thousands and I mean thousands of p FAST lawsuits that have been filed thus far. And it sounds like one of the conclusions that you found is that, you know, initially almost all of the suits were against DuPont and most of them were related to that site that we talked about in West Virginia. Not the case anymore. It sounds like three M is now a major player

and it's getting sued a lot more. Tell me about this data, how you collected it, and what it means. Yeah, so this this story came about with just the simple question of looking at liability with p fast. Who bears the most liability right now for for contamination And so we decided to get into that by looking at lawsuits.

And so we went and we used our Boomberg Law platform uh to to do a few targeted searches to find cases that mentioned p Fast that we're dealing with with p Fast and then also looking at those three md ls we mentioned, um those multi district litigation cases. UH there's a list of you know, lawsuits that are member cases that are attached to that, so we're able to grab those as well. UM put all the cases we found into a database uh, standardized some of the names. Uh,

you duplicated some of the entries. UH, and then analyzed, you know, the trends over time and and what was happening with these lawsuits. Uh. And yet, like you mentioned, it was very much so do POMP being sued early on. Uh. They were sort of the go to target for p fast litigation. And UH. Now with this this new wave that we're seeing of litigation over p fast, UH, there's a lot more parody and who's being sued. It's not just DuPont Um, but Uh, yes, three M is is

certainly one of the most talked about defendants. UM. A number of the people I spoke to UM shared that they did at all. They made all the different UM components of of they made p fast, but then they also made the finished products that P fast went into and sold it and UM, so they have a lot

of liability. And also one of the interesting things I learned reporting on this too is one of the allegations in the lawsuit, or in the lawsuits that are being filed, is that three M made a specific type of p fast p f os and they were the only ones who made that type of p fast And so the argument in the in the lawsuit is is that you

can pinpoint where three M products specifically have polluted certain sites. Um, and you can say, oh, if that that p FOS, that p FOSS is there, you know it was three M. It's like it's like a chemical signature, exactly, like a chemical signature, UM, three M. For their party, they said that that's not true that others also made this type of p fas. But that's that's one of the things that's been looked at in lawsuit. Well let's talk let's

get it a little bit more into the defense here. Um. You know, it sounds like one of the main defenses that the defendants are putting forth is, like you said, Millspeck, that essentially they made these products for the military, for the government, and there's something called the government contractor defense, which states that more or less, if you make a product for the government or for the military, you are immune from most product liability lawsuits resulting from that product.

Do I have that right? And if so, is that a defense that could win the day for for three M DuPont in these other Yeah. Yeah, So the companies are are putting out this this government contractor defense and and that's that's a defense that was recognized in the late eighties by the Supreme Court UH in a in a separate case. And UH, basically, like you said, it says that companies can't be held to state's product liability laws if they made products provided them to the military

and they were to military specification. And so UH, there's basically three prons to that defense that have to be met for it to be used. And one being that the the government specified, uh, what a product needs to look like. Sounds like that applies here, it sounds yep, yep. And then um, second, the product actually has to conform

to those specifications that companies making sure. And then third, and this is kind of the big one that's really being looked at, um now with with p fas, is that the companies had to warn the government about any dangers with the products that they knew of that the government did not know of. Yeah, So that that's that's that's what a lot of the UH pre trail stuff is focusing on right now is looking at did the company's warn the government about all the dangers with p

fas before this mill spec a triple F came about. Uh, And you know, some of the reporting that's been done previously has shown that DuPont three M had internal studies going back to the to the sixties showing that they knew that p FAS was harmful to human health and mom lasting in the environment. But I guess you know, even if they knew, did they tell the government? Did they tell the military that that this could be a problem? Exactly? Yeah,

that's fascinating, yep. So there's lots of discovery going on right now. There's millions of documents being produced in this this multi district litigation case. Uh, lots to sort through, and in the coming months, um, over the summer, we should get a response, uh from from the court showing if they're able to use this government contractor defense um. And even if even if they are, you know, it's still there's a lot of sites where it doesn't evolve

military basest, civilian airports and things like exactly. Yeah. Uh, finally, where are we heading here? And the reason why I ask is because you know, DuPont still exists as a going concern, but it is not the same company that it was just ten years ago. I mean, it has been merged and spun off and you know, not all of that is because of these p fast liabilities, but

it did play a role. Are we going to see that with every one of these companies that is a defendant in these cases where they're gonna this is actually going to like cause them to not exist as we know them today, including three M which is a pretty big company. Yes, I mean that, let's let's to be seen. Um, I'm not sure if we'll see you know, any any major foldings or anything like that, um anytime soon. But it definitely is a major concern for for some companies,

some more than others. Uh And And there was a quote in a story that included from a proceeding UH in the md L back in nineteen where the judge overseen all these cases essentially told the companies, you're facing an existential threat. If one or two motions don't go your way, this could be very bad for your business. There could be a lot of liability on the line. So to be seen, it's a it's a big question. Um,

I'm not I'm not quite sure. And of course, you know three MS a massive company, and and so I don't I don't think we'll be seeing them fold anytime soon. But um, it definitely is a major concern for them. It's it's taking up a lot of their and a report listing all these liabilities. Uh, and it's something that they're very they're very focused on. But to be seen, we'll see. To be seen well, if and when we do see that, we'll have Andrew Wallander back on the

podcast for now. That was Andrew Wallander speaking with me about p Fast. Thank you so much, Thank you for having me. Just great. And that's it for today's episode of Parts per Billion. If you want more environmental news, check us out on Twitter. We use it pretty easy to remember handle is at environment just that at environment, nothing else. Today's episode of Parts of Billion is produced

by myself, David Schultz. Partner Billing was created by Jessica Combs and Rachel Dagle and is edited by Zach Sherwood and Chuck McCutcheon. Our executive producer is Josh Block. Thanks everyone for listening. Those nine justices in Washington that could be pretty hard to keep track of. That's where we come in. I'm Jordan Reuben and I'm Kimberly Robinson. On our podcast Cases and Controversies. We give you a week by week accounting of the Supreme Court, the filings, the arguments,

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