CHARLESTON, S.C. (Legal Newsline) - Defendants in the coming bellwether trial over chemicals known as PFAS will not be able to test the motivations of one of the plaintiff's experts.
Companies like 3M who face enormous liability over PFAS wanted to portray Linda Birnbaum, the former director of the National Institute for Environmental Health Sciences, as an advocate when she takes the stand for plaintiff City of Stuart, Fla.
Stuart's trial is the first in a multidistrict litigation proceed in in South Carolina federal court. One group of plaintiffs consists of municipalities suing to recover PFAS cleanup costs in their water systems, and another group has individuals alleging personal injury.
PFAS regulation and litigation are the subjects of hot debate. They are found in firefighting foam and consumer products like non-stick cookware and are in the bloodstreams of virtually all Americans. They have been dubbed "forever chemicals" due to the body's inability to break them down.
But the exact health effects aren't known, despite states - which have also hired contingency fee private lawyers to sue - imposing their own maximum contaminant levels. The federal EPA has announced its own MCLs, while groups like the American Chemistry Council speak out against regulations based on what it feels is incomplete research.
The City of Stuart's lawyers say it is owed $105 million in damages for future operation of its PFAS treatment system. They've enlisted Birnbaum as an expert witness and recently asked the MDL court to prevent defendants from what they call inflammatory political attacks on her.
She was accused by two U.S. congressmen of violating anti-lobbying laws after she published an editorial in 2017 called "Regulating toxic chemicals for public and environmental health."
She wrote: "Closing the gap between evidence and policy will require that engaged citizens, both scientists and nonscientists, work to ensure our government officials pass health protective policies."
No finding was ever made as to whether the statement violated any anti-lobbying law. Instead, she did not receive a pay increase in the year following the editorial and had to have her public statements approved by a supervisor.
Defendants in the PFAS case argue her "call for scientists to serve as advocates for policy change, as well as the congressional backlash and employment repercussions, are proper subjects for cross-examination."
They say Birnbaum advocated policy and regulatory change based on "uncertain" scientific evidence while working for the federal government.
But Judge Richard Mark Gergel ruled against the defendants on May 12, writing they failed to show the line of inquiry is of any probative value - "especially given that no finding of wrongdoing was ever issued against Dr. Birnbaum."
The trial is scheduled to start June 5.