CHICAGO (Legal Newsline) - Lawyers accused of filing a class action lawsuit with no proof are fighting a call for punishment made by the company they sued.
The Children's Place, a maker of school uniforms, said in September that lawyers at Aylstock, Witkin, Kreis & Overholtz and Bradley/Grombacher ignored the results of testing for PFAS, a group of chemicals found in firefighting foam and consumer products.
A motion for sanctions by TCP said lawyers tested only two of 21 products purchased by plaintiff Angala Garland. Results showed that one of them was PFAS-free and the other showed extremely low, trace levels of one member of the PFAS family.
That result was flagged with two indicators the test was unreliable, TCP said. Plus, both garments had been worn and washed at least once. Many water districts have sued companies like DuPont and 3M for PFAS in water.
Plaintiff lawyers call the motion for sanctions a "house of cards that collapses under the weight of its own false underpinning." They say the allegations in the complaint had sufficient evidentiary support like independent lab testing, scientific publications on PFAS in children's school uniforms sold by TCP and research on the dangers of PFAS.
"Defendant may seek to challenge Plaintiff's testing methodology, analysis, literature or experts, and it will have ample opportunity to do so," the response says. "Rule 11, however, is not the proper forum for such arguments."
TCP has no shot of, at this stage, meeting the Seventh Circuit's standard for sanctions - "a callous disregard for governing law or the procedures of the court."
Lawsuits blame PFAS for a variety of health problems, some of which were linked by a health study that was part of a settlement with DuPont. But others say the science on how PFAS affect the human body is incomplete.
They have been dubbed "forever chemicals" because of the human body's inability to rid itself of them. Lawyers have jumped on the chance to sue dozens of companies, with some scoring contingency-fee contracts with government officials and others pursuing consumer protection claims.
TCP's motion for sanctions criticized the timing of the complaint and the lawyers' public statement to the media, which occurred during the back-to-school-shopping season.
"Plaintiff's counsel should have continued its investigation - but they did not," the motion says. "At a bare minimum, they were obliged to retest the one item to remove the qualifiers that their own lab said made the results unreliable and test a new version of the item that had not been repeatedly washed or exposed to months of contamination.
"Instead, based on nothing more than an acknowledged suspect test result for one worn shirt containing a barely detectable amount of one type of PFAS chemical, Plaintiff and her counsel filed a complaint broadly disparaging all of Defendant's 'School Uniforms' - i.e., disparaging over 1,500 products including the one that tested PFAS-free."