GRAND RAPIDS, Mich. (Legal Newsline) - A Michigan judge has cleared the way for his state’s lawsuit to proceed against numerous manufacturers of PFAS, a family of chemicals that leach into groundwater and persist in the environment for years or decades.
The ruling by Kent County Circuit Court Judge Jay Quist eliminated the last barrier before proceeding to discovery, the fact-finding process in which Michigan will seek documents detailing what companies including 3M, Dow Chemical, DuPont and others knew about the health risks of PFAS while they kept selling the chemicals used in a profusion of products from non-stick pans to airport firefighting foam.
Michigan Attorney General Dana Nessel's office is represented by private lawyers who are pursuing the litigation in hopes of garnering a share of the proceeds as contingency fees.
Michigan also announced two new lawsuits in state and federal court against the makers of PFAS-containing firefighting foam. As with the previous suit, the state accuses companies of concealing dangers associated with the chemicals, which are used at civilian and military airports around the country and leach into soil after being sprayed on the tarmac in training exercises or accidents.
All of the lawsuits represent attempts by the state to recover costs associated with detecting and mitigating the compounds, which critics have dubbed “forever chemicals.” The lawsuits portray health risks associated with PFAS as scientific fact that chemical companies hid from the public.
Industry representatives say studies so far have not produced conclusive evidence the chemicals are toxic, however, and have opposed adding PFAS to the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), which includes provisions to identify and designate Superfund cleanup sites.
Michigan’s lawsuits proceed as a federal court in South Carolina is overseeing federal multidistrict litigation by hundreds of plaintiffs who also claim they have been exposed to PFAS. A federal court in Ohio, meanwhile, is considering a proposed class action that would include virtually every person in the country since testing has found trace amounts of PFAS present in most adults.
Other defendants in the Michigan case include DuPont spin-offs Chemours Co. and Corteva Co., Dyneon LLC, Archroma entities, Archema entities, ACG Chemicals Americas, Daikin Industries entities, Solvay Speciality Polymers and Asahi Kasei Plastics North America. The lawsuit alleges 74 sites in Michigan have been contaminated but offered no dollar estimate for remediation.
Unlike traditional pollution cases, PFAS litigation generally doesn’t include allegations companies illegally disposed of the chemical. They are instead accused of legally selling a chemical they knew would contaminate groundwater and was toxic.
Michigan’s contingency fee lawyers, identified as special assistant attorneys general, include veteran litigator Richard Fields; attorneys from Keating Muething & Klekamp of Cincinnati; and DeCello Levitt Gutzler of Chicago.