COLUMBUS, Ohio (Legal Newsline) - DuPont has agreed to split an expected $4 billion litigation bill over the environmentally pervasive chemical PFAS with Chemours and Corteva, former business units that DuPont spun out in 2015 and 2019.
Under the terms of the binding memorandum of understanding announced Jan. 22, DuPont and Corteva, its former agriculture unit, will cover half of PFAS expenses for the next 20 years. The agreement settles a Delaware lawsuit Chemours filed in 2019 to claw back a $3.2 billion dividend it paid to its former parent DuPont so it could cover legal costs related to the so-called “forever chemical.” Chemours was forced into arbitration after a Delaware judge dismissed the lawsuit in a decision upheld by the Delaware Supreme Court.
The agreement among the three companies could accelerate settlement negotiations over PFAS contamination, which is widespread due to the chemical’s solubility and tendency to migrate into groundwater supplies. Plaintiff lawyers allied with state attorneys general have filed lawsuits seeking billions of dollars in damages, even though the Centers for Disease Control has found that evidence the chemicals cause cancer “remains sparse.”
At the same time as it announced the settlement with its former business units, DuPont also said it settled all remaining cases before a multidistrict litigation court in Ohio for $83 million in cash. DuPont paid $335 million in 2017 to settle about 3,550 claims in that MDL.
PFAS was used in firefighting foam and consumer products like non-stick cookware and waterproof clothing. They got the moniker "forever chemicals" because they persist in the environment and are present in trace amounts in virtually every U.S. adult.
Litigation over the chemicals got a jump-start after DuPont paid $671 million to settle 3,500 lawsuits in West Virginia and agreed to set up a science panel to assess claims PFAS could cause disease. That panel ultimately found a probable link to six diseases including testicular and kidney cancer and pregnancy-induced hypertension. The findings fueled the Ohio MDL as well as similar litigation before a federal court in South Carolina.
Some have criticized the science panel’s conclusion as unreliable, because they are based upon correlations derived from epidemiological studies as opposed to actual scientific evidence the chemicals can cause disease. Most exposures are in parts per trillion, levels that some scientists consider too low to be dangerous.
Another federal court in Ohio is mulling whether to certify a nationwide class action on behalf of every U.S. adult exposed to PFAS, or virtually the entire population. Plaintiff Kevin Hardwick, represented by prominent Florida lawyers Levin Papantonio and Ohio firm Taft Stettinius, both active in government-driven opioid litigation, is seeking a nationwide medical monitoring program. In a recent order, U.S. District Judge Edmund Sargus gave Hardwick an extension until March 12 to file additional materials in support of his motion for class certification.
Defendants, including DuPont and Chemours, oppose certifying a mandatory class of more than 300 million Americans over exposure to any of more than 5,000 chemicals, subject to different laws in the 50 states.
“Any sort of medical monitoring would necessarily be individualized, given the extraordinary number of substances involved and the class members’ varying circumstances,” the defendants said in a December filing. “And the same is true of any sort of nationwide study of the 5,000 substances involved.”