3M, DuPont Face PFAS Liability Risks Beyond Drinking Water Offer

The $11 billion settlements being discussed in a multidistrict PFAS litigation case won’t discharge the broader potential liabilities that leading defendants face in that case and others, attorneys say.

The 3M Co. is negotiating a possible settlement of at least $10 billion over water pollution claims in the multidistrict litigation case, In Re Aqueous Film-Forming Foams Products Liability Litigation. DuPont de Nemours Inc., Chemours Co., and DuPont spinoff Corteva Inc. have offered $1.19 billion to drinking water utilities facing treatment cleanup costs due per- and polyfluoroalkyl substances (PFAS).

The two settlements would constitute the largest PFAS pacts in the US and one of the biggest mass tort deals ever. Even so, the decadeslong use of some PFAS in thousands of products means that many other cases are likely.

“The genie may be impossible to get back in the bottle,” said Michael Walsh, a senior counsel at Clark Hill PLC who focuses on toxic exposure, product liability, and other commercial matters.

Even if the proposed settlements go forward, the four companies will face other types of toxic tort claims that are part of the multidistrict litigation (MDL), Walsh and other attorneys said. And state attorneys general and other plaintiffs have filed and will continue to file lawsuits in other state and federal courts, they said.

Piece of the Puzzle

The drinking water litigation that the $11 billion tentative settlements would address is “just one piece of an international and large puzzle that the companies need to resolve,” said Ally Cunningham, a partner with Lathrop GPM LLP focused on environmental, toxic tort and other crisis-related litigation.

The Environmental Protection Agency’s proposal to designate two particular PFAS—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)—as hazardous substances under the Superfund law increases the chemical manufacturers’ potential liability, said John Gardella, a shareholder, CMBG3 Law LLC, who chairs the firm’s PFAS, Environmental, Risk Management & Consulting, and ESG practice group.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or Superfund law would give the EPA and states additional authorities to go after “direct polluters,” or who released the chemicals into the air or water or onto land. Normally the EPA wouldn’t target the PFAS producers unless the pollution stemmed directly from their factories, Gardella said.

“However, what will happen is that most if not virtually all companies brought into such costly cleanup actions will turn around and look for monetary contribution from the PFAS makers,” he said. The $11 billion potential settlements revealed on June 2 “wouldn’t cover any of these issues, so by no means are DuPont or 3M free and clear after this when it comes to PFAS.”

‘Litigation Fire’

The “wildcard” in the burgeoning PFAS litigation is health effects and personal injury claims along with medical monitoring requests when allowed by state law, Walsh said.

Exposure to the chemicals is relatively simple to prove with blood tests that measure them, he said. But the medical science isn’t as settled an issue compared to the more predictable treatment needs and costs to reduce PFAS in drinking water.

Blood tests can prove exposure, but “then it’s a question of causation—who are your defendants—there’s a whole universe of downstream users,” he said, referring to companies that have used PFAS to produce products.

The number of personal injury claims in the MDL case alone is growing. Since June 1 the US Judicial Panel on Multidistrict Litigation transferred at least two dozen more lawsuits into the aqueous film-forming foam (AFFF) MDL.

Of those, 19 make personal injury claims, mostly from firefighters, against 3M, DuPont, Chemours, Corteva and other defendants. The firefighters said they were exposed to PFAS from AFFF, a fire suppressant that used PFAS for decades, and from their gear. PFAS repel moisture and heat and provide other protection.

Walsh described the settlements as “attempting to extinguish a litigation fire with paper money.”

Yet “the risk of having a jury make sense out of the complex legal and scientific issues leaves industry little choice but to pay a ransom,” he said.

The case is In Re Aqueous Film-Forming Foams Products Liability Litigation, D.S.C., No. 18-mn-02873, 6/5/23.