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Saturday, August 24, 2019

Plaintiffs lawyers - and their experts - are gaining power in Michigan on PFAS issue


By John O'Brien | May 14, 2019

LANSING, Mich. (Legal Newsline) – Plaintiffs lawyers likely have their eyes on Michigan, as the new attorney general there wants to sue companies over chemicals known as PFAS but doesn’t think her staff will be able to handle it.

Instead, Michigan Attorney General Dana Nessel is soliciting pitches from private lawyers who would fund the litigation in exchange for a percentage of any verdict or settlement. She reached this decision as the State considers regulating PFAS with the help of a three-member panel that features two scientists who have been expert witnesses for the plaintiffs bar.

PFAS are found in products like nonstick cookware and waterproof clothing, as well as in firefighting foam used routinely on military bases. The science on their toxicity is challenged by some while lawsuits pile up during an absence of federal regulation.

Some trial lawyers and scientists allege PFAS exposure leads to an increased chance of illnesses like kidney and testicular cancer. Lawsuits aren’t alleging those problems have happened, just that PFAS have been found in drinking water and in people.

For example, one recent class action seeks to represent everyone in the country who has been exposed to PFAS. Instead of seeking damages for any specific health problems, it seeks damages for battery, as well as negligence and conspiracy. The lawyers are Taft Stettinius of Columbus, Ohio, and Levin Papantonio of Florida.

New Jersey, meanwhile, has taken the lead in regulating the amount of PFAS in drinking water and in hiring private lawyers to file lawsuits against DuPont and 3M.

Now, Michigan will follow suit. The State has already created the Michigan PFAS Action Response Team, which established the Science Advisory Workgroup.

On that panel are Dr. David Savitz of Brown University and Dr. Jamie DeWitt of East Carolina University.

DeWitt is listed as a plaintiffs witness in a Michigan PFAS case against 3M brought by the law firm Varnum LLP. They list 35 other possible witnesses, including representatives of the Science Advisory Panel that DeWitt serves on.

Savitz has submitted an affidavit in favor of certification of a New York class action against Taconic. He previously served on the science panel created by West Virginia and Ohio lawsuits against DuPont.

Those cases resulted in a medical monitoring plan for individuals who lived near a DuPont plant in West Virginia. As a result, the C8 science panel decided there is a link between PFOA, a chemical included in the PFAS classification, and six diseases.

“After the completion of my work on the C8 science panel, I was contacted by counsel for plaintiffs in this and another case involving PFOA drinking water contamination and asked if I would update the research done by the panel regarding probable links between PFOA exposure and human disease and provide my opinions on this topic,” Savitz wrote.

Plaintiffs lawyers had an interest in switching the state AG’s office from the Republican regime of Bill Schuette to the Democrat Nessel. Campaign finance records show the Michigan Association for Justice (the state’s trial lawyers group) gave $30,000 to Nessel last year.

(The law firm Miller Canfield, which is defending 3M on PFAS claims, gave $10,000 to Nessel. Lawyers there gave more than $35,000 to Nessel’s Republican opponent, Tom Leonard.)

Another noteworthy contributor was billionaire environmental advocate Tom Steyer, who gave $6,800 as part of an apparent plan to target AG races.

Plaintiffs lawyers who donated to Nessel included:

-Jay Eisenhofer of Grant & Eisenhofer, which files securities lawsuits on behalf of state pensions, gave $6,800;

-Maya Saxena and Joseph White, the founders of securities firm Saxena White, each gave $6,800; and

-William Jackson, an attorney at Kelley Drye, gave $2,500.

Kelley Drye is representing New Jersey in its four PFAS lawsuits, so it would make sense if the firm tried to add Michigan to its client list.

Kelley Drye’s contract with New Jersey stipulates a tier system for its payment that takes into account when the case was resolved and for how much.

If the case is resolved before trial, it would make 10% of any amount recovered more than $300 million.

From $100 million to $300 million, it would make 15%. From $3 million to $100 million, it would make 20%.

Those percentages increase slightly if the case is concluded after a trial begins.

In February, the U.S. Environmental Protection Agency announced it would this year begin setting limits on PFAS chemicals and kicked into motion a process that eventually will supposedly lead to adding PFAS as hazardous substances under the federal Superfund law.

Aside from the draft profile and the EPA's promises that there will be established limits, there remains no federal determination about what levels of PFAS are actually toxic. New Jersey passed its own limits, and Michigan is doing the same.

Other firms active in PFAS litigation include lawyers that have, in the past, teamed with government officials for other causes.

In a federal multidistrict litigation proceeding with more than 100 lawsuits in it, two of the co-lead counsel firms are:

-Baron & Budd, hired by state AGs for cases concerning the advertising of Avandia and alleged contamination of water by chemicals called PCBs; and

-Motley Rice, of tobacco settlement fame.

Napoli Shkolnik, which has plenty of government clients for opioid lawsuits, is also listed as co-lead counsel for the PFAS MDL, as is Douglas and London.

One lawsuit in the PFAS MDL was filed by the state of New York, which chose to use its own lawyers. They recently asked that the lawsuit, which seeks cleanup costs related to PFAS at four sites, be sent back to a New York state court.

New Mexico has sued the U.S. Air Force over PFAS and similarly chose to use its own lawyers to handle the case.

From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.

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Organizations in this Story

3M Baron and Budd DuPont Michigan Office of the Attorney General Motley Rice LLC Napoli Shkolnik PLLC

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