PARKERSBURG, W.Va. (Legal Newsline) – Chemicals in a group known as PFAS have been in the headlines a lot lately, from congressional hearings to a new film starring Mark Ruffalo that follows a class action lawsuit against DuPont in the Parkersburg area.
Part of that case created a research project that plaintiffs lawyers have used to back subsequent lawsuits, though Steve Milloy - a lawyer, founder of the website JunkScience.com and a member of President Trump's EPA transition team - said the issue has been largely overblown.
"The epidemiology is awful," Milloy said in an interview. "It doesn’t show that anyone has been harmed. I think that, yes, people have been exposed, but exposure and detection isn’t the same as toxicity."
PFAS was used in firefighting foam and consumer products like non-stick cookware and waterproof clothing. They have been dubbed "forever chemicals" because they don’t leave the human body once they make it in.
The aforementioned research draws a link to PFAS (which nearly every American has been exposed to) and diseases like kidney and testicular cancer, though many argue the science is incomplete. As the federal Environmental Protection Agency considers setting a maximum contaminant level that would be more precise than its 70 parts per trillion health advisory, Democrats in the House took the unusual step of attempting to include PFAS in the Superfund law.
As Legal Newsline has reported, doing so would have increased liability exposure for many types of businesses, including hospitals. Their effort recently failed.
But lawsuits remain, many of which are consolidated in a multidistrict litigation proceeding in South Carolina federal court. Other cases that resulted from DuPont's medical monitoring settlement were heard in an Ohio MDL.
Personal injury lawyers and DuPont had agreed to a plan that created a so-called “science panel” and had the company pay for the medical monitoring of residents around the plant. Medical monitoring is a controversial claim for relief on behalf of uninjured plaintiffs that would drive up the cost of a settlement and with it, the amount their lawyers could recover.
The majority of states don't allow such claims. By 2012 and after studying more than 30,000 participants, the science panel said there was a probable link to six diseases. The cases paid off for lawyers in 2017, when DuPont ponied up $671 million to settle 3,500 lawsuits.
But still debated is whether those science panel findings are applicable to other groups of people around the country.
"I don’t have a problem with (DuPont funding the research)," Milloy said. "If you can show me where they’re doing something wrong or someone is unhappy with the results or says they’re lying or cheating or something, that would be different.
"I think the science is really lousy and there is nothing there. Activists just keep pumping this stuff."
The C-8 Science Panel found a probable link between PFOA, part of the PFAS family, and pregnancy-induced hypertension, kidney cancer, testicular cancer, thyroid disease, ulcerative colitis and high cholesterol and PFAS.
It has spurred lawsuits, as well as regulations. States are coming up with their own toxicity levels to enforce, though they haven't come to a consensus. States are imposing limits around 10-25 parts per trillion, as well as hiring private lawyers on contingency fees to file lawsuits.
One notable class action seeks compensation for everyone in the country but doesn't allege any actual diseases have been suffered as a result of PFAS exposure. A judge recently allowed the case to move forward.
Richard Trzupek, a chemist who has worked as an environmental consultant for more than 25 years, said the levels of PFAS being found in groundwater now probably couldn't have been detected 20 years ago.
"These are very exotic molecules and, as it often happens in the industry, the only people who can test to find them are the people who are familiar with them, and there are very few companies that work with PFAS so they tend to do their own work," Trzupek said in an interview.
"It’s hard for me to get excited about parts-per-trillion about anything."
Trzupek said those who are jumping on the "PFAS bandwagon" are looking at the fact that these are large molecules with molecular weights of 500 to 1,000.
"They're much larger than what people normally deal with," Trzupek said. "What the environmental community sees when they see those is that these are bio-accumulators and they’re never going to break down because they are so big. Yeah, I get that, but, from my perspective, I’m not particularly worried about bio-accumulators in the parts-per-trillion level."