Trial Magazine

Imagine a town’s water supply poisoned by a pervasive toxic chemical; deformed, sick, and dead livestock; residents and workers with mysterious illnesses; and a brazen corporate cover-up by the chemical’s manufacturer. This is not fiction, but a real-life horror story from West Virginia featured in the recently released movie “Dark Waters.” The manufacturer, DuPont, not only knew that it was likely poisoning the town’s water supply with the chemical PFOA—it also spent two decades denying the truth.

Most Americans only recently became aware of the risks associated with PFOA, but so many of you know how this story goes: Corporations exposed the public to harm and then covered it up. PFOA is one chemical in a class of man-made chemicals called per- and polyfluoroalkyl substances (PFAS), which also include PFOS and GenX. PFAS have been used in many industries in the United States since the 1940s and can be found in food and product packaging, household goods, industrial processes such as chrome plating—and now in drinking water. Known as “forever chemicals,” they don’t break down easily and stay in our bodies and in the environment for decades.

A 2007 U.S. Centers for Disease Control and Prevention study estimated that PFAS could be detected in the blood of more than 98% of the U.S. population. According to the advocacy organization Environmental Working Group, these chemicals are likely detectable in all major water supply systems in the United States.

Studies show that PFAS are linked to infants’ low birth weights, immune system disorders, cancer, and thyroid hormone disruption. However, the chemicals are not properly regulated, and people remain unprotected.

AAJ has long supported efforts to hold PFAS manufacturers responsible through litigation and through legislation requiring the EPA to craft limits for these chemicals. The agency is working to publish formal conclusions about PFAS toxicity and finalize a rule under the Toxic Substances Control Act to limit new uses of these chemicals.

PFAS also should be regulated as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Doing so will offer the best chance to clean up existing PFAS contamination and prevent it in the future. In January, the House of Representatives passed the “PFAS Action Act of 2019,” which would designate PFAS as hazardous substances under CERCLA. The Senate has not acted on the bill, but AAJ continues to work hard to ensure that these toxic chemicals are properly regulated.

AAJ provides many resources for members handling toxic exposure cases. In this month’s Trial, read about overcoming obstacles in PFAS water contamination cases (p. 36), assessing a workplace toxic exposure claim (p. 42), Daubert-proofing your experts (p. 18), strategies for trying a pesticide case (p. 28), and details on emerging ethylene oxide litigation (p. 48).

Another great resource is the Section on Toxic, Environmental, and Pharmaceutical Torts (STEP), which provides education programs, business meetings, a secure list server, and a document library. Related Litigation Groups include PFC Water Contamination, Herbicides and Pesticides, Asbestos, and Benzene/Leukemia, as well as the new Ethylene Oxide Litigation Group. Learn more at www.justice.org/litgroups. The AAJ Exchange also has relevant Litigation Packets, including Roundup^® Herbicide, and is releasing a new packet on ethylene oxide. Find these and more at www.justice.org/litigationpackets.

And if you’re new to toxic torts or would like to take on more of these cases, check out the Everything You Want to Know About Mass Torts Seminar (available via livestream) in Washington, D.C., on July 10, the day before Annual Convention begins.

AAJ will continue to fight to protect the public from toxic chemicals and to hold corporations accountable when these chemicals hurt people and the environment. Join that fight by contacting your senators to urge them to support the PFAS Action Act of 2019.

Bruce H. Stern is a shareholder at Stark & Stark in Lawrenceville, N.J. He can be reached at bruce.stern@justice.org.