CHARLESTON, S.C. (Legal Newsline) - A bellwether trial of PFAS claims against 3M that was scheduled to begin Monday morning was halted to give more time for the parties to reach “a final binding agreement” to end litigation by hundreds of municipalities over the so-called “forever chemicals” in drinking water.
The City of Stuart, Fla., sought more than $100 million from 3M to pay for systems to filter PFAS out of its drinking water. The results of that case, combined with other bellwether trials, would have served to determine the potential liability of 3M for making firefighting foam and other products that contain the long-lived molecules, which leach into drinking water supplies and can be detected in human tissue for years.
3M and other manufacturers dispute the health effects of PFAS, but studies have shown statistical links between PFAS exposure and several conditions including cancer and high cholesterol. The judge overseeing multidistrict litigation, U.S. District Judge Richard Gergel in South Carolina, last year stripped 3M of its most potent defense by ruling the company couldn’t argue it was merely following government instructions when it produced firefighting foam containing PFAS. Fire departments and airports around the country used the foam in training exercises for decades.
The City of Stuart said it is owed $105 million in damages for future operation of its PFAS treatment system. Like many other municipalities, Stuart is represented by private attorneys including Motley Rice, Napoli Shkolnik and Baron & Budd, who stand to collect a share of any money they win from PFAS manufacturers. Last week, Napoli Shkolnik announced a tentative $1.2 billion settlement with DuPont, Chemours and Corteva over PFAS contamination of public water supplies.
The South Carolina trial would have been the first of multiple bellwether trials ordered by Judge Gergel to try and resolve PFAS litigation. In addition to rejecting 3M’s government contractor defense, the judge last month refused to allow 3M to argue Linda Birnbaum, a former director of the National Institute for Environmental Health Sciences, had become an “advocate” after joining the plaintiff team as an expert.
The defendants argued Birnbaum advocated policy and regulatory change based on "uncertain" scientific evidence while working for the federal government. But Judge 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."