Legal Newsline

Tuesday, April 7, 2020

Tort reform head says PFAS issue could cause runaway litigation

Attorneys & Judges

By John Sammon | Nov 20, 2019


WASHINGTON (Legal Newsline) – The president of the American Tort Reform Association told members of Congress on Tuesday that litigation could get out of hand unless federal regulators adopt a commonsense, fair approach to dealing with the PFAS chemicals that activists claim are poisoning the nation’s water supplies.

“PFAS are the subject of a fast-growing number of lawsuits brought by individuals as class actions as well as cases brought by state and local governments,” Sherman Joyce told members of the Committee on Oversight and Reform. “We may be seeing the tip of the iceberg as far as litigation goes.”

ATRA is a national organization concerned with reforming the civil justice system.

PFAS is a group of chemicals used in firefighting foam and consumer products like non-stick cookware, paints, cleaning products, water repellent and waterproof clothing. They are labeled “forever chemicals” because they can last over time in the human body.

Joyce’s comments came during a panel hearing with expert witnesses providing testimony on how to lay out a case for federal regulation of PFAS by the Environmental Protection Agency. The EPA has announced action to determine federal regulations under the Safe Drinking Water Act but has not gone beyond issuing advisory levels.

Activists claim that thousands of drinking water supplies used by more than 100 million Americans are contaminated, due to leaching from toxic waste sites and military use of firefighting foam. They maintain the chemicals have been dumped into the nation’s water supplies particularly around military bases with little or no control or limits from government agencies such as the EPA.

Millions of Americans reportedly have PFAS chemicals in their blood from drinking water, though the exact effects are unknown. Some claim there are links to diseases like kidney and testicular cancer, while others say the science is nowhere near settled.

A judge has allowed a lawsuit brought by a man with no injury to proceed but stopped short of certifying a nationwide class. The U.S. Senate is considering classifying PFAS as a "hazardous substance" under the federal Superfund law, creating more targets for lawyers to sue.

Joyce said he was appearing at the hearing as an advocate for lawsuit reform.

“ATRA has no position on the scope of this process how to proceed and how to conclude,” he said. “But we want it to be based on scientific consensus. It is wrong for a business to be liable because a microscopic amount of its product can be found in the air and water. It is counterproductive to impose (liability) on manufacturers who provide products that provide substantial benefits, based on fear.”

Joyce said some of the chemicals developed were requested by the government decades ago, for example, foam to fight fires on ships during the Vietnam War. He said such products have saved lives.

“To the U.S. Navy, this has been critical,” Joyce said. “Science has gotten in front of the litigation. We’re seeing improved technology that has offered greater detection (of chemicals). It has become the catalyst for more litigation involving these products.”

Joyce said there is no exact consensus how the broad category of PFAS chemicals has injured the public.

“Yet, litigation moves forward,” he said. “Lawsuits should not be out in front of science.”

Representative James Comer (R-Ky) said he was not against fair compensation for people injured by the chemicals. However, he said a scenario in which big law firms are taking an overwhelming cut of the money should be avoided. Comer asked Joyce if there had been a spike in lawsuits pursued by state attorneys general on behalf of their states against companies that use the chemicals.

“Yes,” Joyce said. “That kind of litigation is becoming more common in a lot of areas extending beyond states to individual communities, counties and cities.”

“What are they (big law firms) paid?” Comer asked.

“Contingency fees,” Joyce said. “That’s the typical process.”

To that point, states like Michigan, New Hampshire and New Jersey have hired private lawyers on contingency fees, previous Legal Newsline coverage has shown.

Joyce indicated the role of the government is to serve people. Lawyers can have a profit motive that at times makes the two incompatible, he added.

ATRA earlier adopted a position against medical monitoring, claiming it results in damages that drive up the value of settlements, allowing profit-motivated lawyers to take a bigger percentage and awarding compensation for people who aren't even injured. Much of the science cited on PFAS came as a result of a medical monitoring program funded by DuPont to resolve lawsuits in West Virginia and Ohio.

One of the panelists at Tuesday’s hearing was Mark Ruffalo, an actor who is the star of a movie titled “Dark Waters” set to premiere next week. The film portrays the PFAS chemicals situation as a dire crisis.  

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Organizations in this Story

American Tort Reform AssociationU.S House of Representatives