The Coming Increase in Toxic Tort PFAS Litigation

Expert witnesses have long played a crucial role in toxic tort and environmental litigation. Most notably, the passage in 1980 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authorized the Environmental Protection Agency (EPA) to clean up “Superfund” hazardous and chemical waste sites.  This of course has led to decades of litigation involving who is a Potentially Responsible Parties and the costs of clean up and remediation. 

 

In the last several years the EPA has prioritized the regulation of Per- and polyfluoroalkyl substances (PFAS). Perfluorooctanoic acid (PFOA) and perflourooctanesulfonic acid (PFOS) are the most prominent PFAS compounds. PFAS have been used in a wide array of products such as paper products, insulation, surface coatings, firefighting foams, and in shampoos, cosmetics, and other personal care products.

 

PFAS are also used to make Teflon, and Dupont has been subject to lawsuits regarding its use. For example, in January 2021, Dupont, Cortvea, and Chemours announced that they had entered into a $4 billion cost-sharing agreement to support and manage the settlement of future PFAS liabilities. Likewise, in 2017, Dupont agreed to pay more than $650 million involving the alleged leak of PFAS used to make Teflon.

 

The EPA’s website identifies categories of individuals that are a higher risk of exposure to PFAS. These include firefighters and those who are involved in chemical manufacturing and processing as well as those who have drank water or eaten foods containing PFAS, such as fish.

 

The Biden Administration is taking steps to increase the regulation of PFAS. For example, in April 2022 the EPA proposed the first Clean Water Act aquatic life criteria focusing on PFOA and PFOS. In December 2021, EPA published the final fifth Unregulated Containment Monitoring Rule, which will require monitoring of drinking water at certain sites. And in June 2021, EPA started the process of designating PFOA and PFOS as hazardous substances under CERCLA. It is expected that some of these rules will be finalized and come into effect in the next year. The precise timing is not clear, but together these regulations will lead to more lawsuits involving PFAS.

 

 

Toxic tort litigation against manufacturers, distributors, and property owners generally include a variety of damages and potential recoveries. As a result, defending PFAS litigation requires a range of expert witnesses, including medical, environmental, and economic.

 

• Medical Experts: PFAS lawsuits are increasingly seeking medical monitoring costs for those who are alleged to have been exposed to PFAS but who have yet to exhibit symptoms. The associated costs include monitoring blood levels.
  
  
• Environmental Experts: Because PFAS can be found in water, air, and soil, specific litigation can involve a range of expert witness including toxicologists, soil experts, geologists, and hydrologists.
  
  
• Economic Experts: PFAS suits often involve allegations that individuals or entire communities lost wages or had that the value of their homes or other property reduced because of alleged exposure to PFAS.

 

 

John C. Fetzer

 

 

John C. Fetzer has extensive knowledge in developing new analytical chemistry methods in chromatography and spectroscopy in environmental analyses. He can also provide characterizations of petroleum and its refined products, petrochemicals, polymers, and other materials. John has acted as an expert witness for 16 years, providing testimony in depositions and trials.

 

 

LITILI’s network of 8,000 expert witnesses include medical, environmental, and economic experts.

 

 

To find out more about how Litili can help defend PFAS and other toxic tort cases, email us at casemanagers@litiligroup.com to speak to one of our dedicated case managers.