SAN FRANCISCO (Legal Newsline) - Plaintiff lawyers, having tried and failed to assemble class actions over Teflon pans and dental floss, are now targeting disposable plates and bowls with PFAS litigation.
A trio of lawsuits pending in California against Amazon, Kroger and other companies claim consumers were misled by claims that disposable eating items were “compostable.” While the products might break down over time, the lawsuits claim, they contained durable PFAS compounds that last for decades in the ground.
The lawsuits are seeking class action status on behalf of consumers who were allegedly defrauded under California’s liberal consumer protection statutes. By making consumer protection claims, the lawyers hope to bypass difficulties in assembling class actions on behalf of people who were supposedly injured by exposure to PFAS.
The chemicals have been linked (though some aren't buying the science) to several diseases including kidney and testicular cancers, but personal injury claims present individualized questions that rarely suit themselves for class treatment.
“What we’re seeing is an approach that doesn’t depend upon health effects,” said Thomas Waskom, a partner Hunton Andrews Kurth in Richmond, Va. who defends companies in toxic tort litigation. When there’s no requirement the plaintiff prove a health-related claim, Waskom said, “it makes the burden so much lower.”
Plaintiff lawyers tried to assemble a series of class actions against DuPont over nonstick Teflon pans more than a decade ago but the effort floundered after a judge rejected certification on a number of grounds including the fact it was difficult to determine who owned the products and whether they relied upon DuPont’s statements when they bought them.
A lawsuit against Procter & Gamble over its Oral B dental floss also fizzled last year after a judge granted the company’s motion to dismiss. Plaintiff lawyers seized upon an article in the Journal of Exposure Science and Environmental Epidemiology suggesting dental floss containing PFAS could have been the source of the chemical in blood samples taken from pregnant mothers involved in another study.
As with the latest cases, the plaintiff sued under California’s consumer protection statutes and said he wouldn’t have bought P&G’s Oral B floss had he known it had PFAS. The only problem was P&G said there is no PFAS in the floss and the article only suggested floss might contain the chemical, without offering any evidence to back up the claim.
Lawyers have had much more success suing companies on behalf of people who were exposed to PFAS in groundwater and some have even suggested the ubiquitous chemical could be “the next asbestos.” Virtually everyone in the U.S. has traces of the chemical in their body because it was used in everything from nonstick pans to firefighting foam and persists in the environment for decades without breaking down.
DuPont settled an early case in 2004 on terms that included funding a study of some 69,000 residents in West Virginia to uncover effects of PFAS. That study found statistical association with six diseases including testicular and kidney cancer, ulcerative colitis, thyroid disease and high cholesterol. Lawyers have since used those findings to mount other lawsuits, including a proposed class action on behalf of every adult in America. A motion for class certification is pending before a federal judge in Ohio in that case, Hardwick v. 3M.
With the disposable serving dish litigation, plaintiff lawyers hope they’ve figured out a way to sue over PFAS without getting dragged into a dispute over whether the chemicals are dangerous or injured anyone in the class, Waskom said.
“They don’t have to go through the process of showing there is a risk,” he said.