The defense lawyer minced no words as he addressed a room full of plastic-industry executives. Prepare for a wave of lawsuits with potentially “astronomical” costs. Speaking at a conference earlier this year, the lawyer, Brian Gross, said the coming litigation could “dwarf anything related to asbestos,” one of the most sprawling corporate-liability battles in United States history.
Mr. Gross was referring to PFAS, the “forever chemicals” that have emerged as one of the major pollution issues of our time. Used for decades in countless everyday objects — cosmetics, takeout containers, frying pans — PFAS have been linked to serious health risks including cancer. Last month the federal government said several types of PFAS must be removed from the drinking water of hundreds of millions of Americans.
“Do what you can, while you can, before you get sued,” Mr. Gross said at the February session, according to a recording of the event made by a participant and examined by The New York Times. “Review any marketing materials or other communications that you’ve had with your customers, with your suppliers, see whether there’s anything in those documents that’s problematic to your defense,” he said. “Weed out people and find the right witness to represent your company.”
A spokesman for Mr. Gross’s employer, MG+M The Law Firm, which defends companies in high-stakes litigation, didn’t respond to questions about Mr. Gross’s remarks and said he was unavailable to discuss them.
A wide swathe of the chemicals, plastics and related industries are gearing up to fight a surge in litigation related to PFAS, or per- and polyfluoroalkyl substances, a class of nearly 15,000 versatile synthetic chemicals linked to serious health problems.
PFAS chemicals have been detected almost everywhere scientists have looked: in drinking water, in rain falling over the Great Lakes, even in Antarctic snow. They are thought to be present in the blood of nearly every American. Researchers have linked exposure to PFAS to testicular and kidney cancers, developmental delays in children, decreased fertility, liver damage and thyroid disease. The man-made chemicals are so long-lasting that scientists haven’t been able to reliably identify how long it might take for them to break down.
PFAS-related lawsuits have already targeted manufacturers in the United States, including DuPont, its spinoff Chemours, and 3M. Last year, 3M agreed to pay at least $10 billion to water utilities across the United States that had sought compensation for cleanup costs. Thirty state attorneys general have also sued PFAS manufacturers, accusing the manufacturers of widespread contamination.
But experts say the legal battle is just beginning. Under increasing scrutiny are a wider universe of companies that use PFAS in their products. This month, plaintiffs filed a class-action lawsuit against Bic, accusing the razor company for failing to disclose that some of its razors contained PFAS.
Bic said it doesn’t comment on pending litigation, and said it had a longstanding commitment to safety.
The Biden administration has moved to regulate the chemicals, for the first time requiring municipal water systems to remove six types of PFAS. Last month, the Environmental Protection Agency also designated two of those PFAS chemicals as hazardous substances under the Superfund law, shifting responsibility for their cleanup at contaminated sites from taxpayers to polluters.
Both rules are expected to prompt a new round of litigation from water utilities, local communities and others suing for cleanup costs.
“To say that the floodgates are opening is an understatement,” said Emily M. Lamond, an attorney who focuses on environmental litigation at the law firm Cole Schotz. “Take tobacco, asbestos, MTBE, combine them, and I think we’re still going to see more PFAS-related litigation,” she said, referring to methyl tert-butyl ether, a former harmful gasoline additive that contaminated drinking water. Together, the trio led to claims totaling hundreds of billions of dollars.
PFAS were an industrial marvel when chemists at Dupont in the 1940s synthesized the material, a remarkably durable compound resistant to water, stains, heat and grease. It quickly became a mainstay in DuPont’s Teflon nonstick pans and 3M’s Scotchgard fabric protector. A powerful fire suppressant, it helped firefighters battle flames. Today, they are used for everyday items as varied as microwave popcorn bags, shampoos, raincoats and firefighting foam.
But the very qualities that have made PFAS so valuable have also prevented them from breaking down naturally in the environment. As PFAS entered the environment from factories, products and landfills, the chemicals have started to accumulate in water, air and soil.
Industry documents released through litigation show that manufacturers found adverse health effects from PFAS exposure as early as 1961. But it wasn’t until the early 2000s that questions increasingly emerged in public about their safety. In 2005, the E.P.A. fined DuPont $10 million, at that time the largest administrative fine ever levied by the agency, for failing to disclose PFAS’s adverse effects.
All that has set the stage for a potential legal storm. Unlike tobacco, used by only a subset of the public, “pretty much every one of us in the United States is walking around with PFAS in our bodies,” said Erik Olson, senior strategic director for environmental health at the Natural Resources Defense Council. “And we’re being exposed without our knowledge or consent, often by industries that knew how dangerous the chemicals were, and failed to disclose that,” he said. “That’s a formula for really significant liability.”
Sandy Wynn-Stelt of Belmont, Mich., brought one early case. A year after she lost her husband to liver cancer in 2016, she discovered that the Christmas tree farm in front of her home, which had seemed such an idyllic setting, had been a dumping ground for PFAS-laden tannery waste from Wolverine World Wide, the maker of Hush Puppies shoes.
Wolverine had been among the first to license 3M’s Scotchgard for its waterproof footwear. Mrs. Wynn-Stelt got her blood tested, and found PFAS levels hundreds of times the norm. In 2020, she was diagnosed with thyroid cancer.
She sued Wolverine and 3M, and reached a settlement in 2021. Separately, nearly 2,000 local residents settled a class-action lawsuit against Wolverine. The region’s water source remains polluted with PFAS.
“Those lawyers are exactly right. This is going to be huge, now that people are starting to hold companies accountable,” Mrs. Wynn-Stelt said.
Wolverine declined to comment. 3M said it continued to “address PFAS litigation by defending itself in court or through negotiated resolutions.”
Much of the course of future litigation hinges on the evidence over PFAS’s health risks. There is broad scientific consensus that certain PFAS chemicals are harmful. “There’s a weight of evidence,” said Linda Birnbaum, a toxicologist and the former director of the National Institute of Environmental Health Sciences. “Multiple studies by different investigators, and in different populations.”
Max Swetman, another MG+M partner who presented with Mr. Gross at the February industry conference, addressed the research in his remarks to the group. “There’s a whole lot of new science being created,” he said. “It’s not the best for us.”
Still, some of the research could be vulnerable to criticism, he said. Getting the right experts to testify was crucial, he said. “Epidemiologists, if you get the right one, is always going to be your best expert in trial.”
Mr. Swetman was unavailable to comment on his remarks, according to his law firm.
One challenge facing medical research lies in the sheer number of different PFAS chemicals that have now entered the environment, each of which can have slightly different health effects, said Steph Tai, associate dean at the University of Wisconsin’s Nelson Institute for Environmental Studies and an expert in the use of science in environmental protection and litigation.
“The other thing, too, is that it takes a long time for health effects to show up,” Dr. Tai said, so the only way that scientists have been able to assess those effects is through long-term studies. Researchers must essentially look for what is referred to as “natural experiments,” she said, comparing people who are naturally less exposed to PFAS with those who are more exposed. That inevitably leads to some uncertainties.
The industry has scored some major victories. Last November, the United States Court of Appeals for the Sixth Circuit tossed out a lawsuit that would have covered every Ohio citizen in a major case over exposure to PFAS, ruling that a firefighter who brought the lawsuit failed to prove that the PFAS found in his blood specifically came from the companies he sued.
3M phased out most uses of two of the most widely used PFAS chemicals, PFOS and PFOA, in the early 2000s, and DuPont in 2015 stopped using PFOA. 3M has said it will phase out PFAS chemicals by the end of next year, though that’s contingent on the company finding substitutes.
“As the science and technology of PFAS, societal and regulatory expectations, and our expectations of ourselves have evolved, so has how we manage PFAS,” 3M said.
DuPont referred inquiries to Chemours, the company that was spun off in 2015. Chemours declined to comment.
A long and difficult cleanup is beginning. President Biden’s 2021 infrastructure law provides $9 billion to help communities address PFAS contamination, and the E.P.A. has said $1 billion of that money would be set aside to help states with initial testing and treatment. Meantime, new kinds of PFAS are still being released into the environment. Scientists are working to learn more about them.
