As litigation involving per- and polyfluoroalkyl substances (PFAS) continues to rise, manufacturers of PFAS-containing products face significant legal and financial risks. Plaintiffs, including individuals, communities, Non-Governmental Organizations (NGOs), and governmental entities, are increasingly filing lawsuits alleging personal injury, property damage, and environmental harm due to PFAS exposure.
For manufacturers, defending against these claims requires experienced counsel to navigate complex scientific, regulatory, and legal landscapes. This article explores some key strategies and challenges in defending PFAS claims, offering insights for legal practitioners and corporate stakeholders.
Understanding the Legal Landscape of PFAS Claims
PFAS-related litigation typically involves claims under products liability, toxic tort, and environmental law, such as:
- Failure to Warn: Plaintiffs may argue that manufacturers knew or should have known about the potential risks of PFAS but failed to provide adequate warnings.
- Design Defects: Claims may allege that PFAS-containing products were inherently dangerous due to their chemical composition.
- Negligence: Plaintiffs may assert that manufacturers breached their duty of care by releasing PFAS into the environment or failing to prevent contamination.
- Nuisance and Trespass: Property owners may seek damages for PFAS contamination that interferes with the use and enjoyment of their land.
Manufacturers may want to consider developing tailored defense strategies to address the specific allegations and jurisdictions involved.
Challenging Causation
One of the most effective defense strategies is often to challenge the plaintiff’s ability to prove causation.
- Scientific Evidence: Highlighting gaps or uncertainties in the scientific literature linking PFAS exposure to specific health effects. Manufacturers can present expert testimony to counter plaintiffs’ claims and emphasize alternative causes of harm.
- Exposure Pathways: Arguing that the plaintiff’s exposure to PFAS cannot be definitively traced to the defendant’s products, particularly given the widespread presence of PFAS in the environment.
Preemption and Regulatory Compliance
Manufacturers can argue that their actions were consistent with applicable regulations and standards at the time, potentially preempting liability, including:
- Compliance with Federal and State Regulations: Demonstrating adherence to regulatory requirements, such as those under the Toxic Substances Control Act (TSCA), the Resource Conservation Recovery Act (RCRA), the Clean Air Act (CAA) or the Clean Water Act (CWA).
- Government Contractor Defense: In cases involving products manufactured for government use (e.g., firefighting foam), manufacturers may assert immunity under the government contractor defense.
Statute of Limitations and Latency Issues
Many health effects have long latency periods, complicating the timing of claims. Manufacturers may argue that:
- Claims Are Time-Barred: Asserting that the statute of limitations has expired, particularly if the plaintiff’s exposure occurred decades ago.
- Discovery Rule Limitations: Challenging the application of the discovery rule, which tolls the statute of limitations until the plaintiff knew or should have known about the harm.
Proportional Liability and Contribution
In cases involving multiple defendants, manufacturers may seek to allocate liability proportionally, including:
- Third-Party Claims: Filing claims against other parties, such as suppliers or waste disposal companies, that may share responsibility for PFAS contamination.
- Bankruptcy Trusts: Seeking contribution from bankruptcy trusts established by other manufacturers of PFAS or related chemicals.
Settlement and Alternative Dispute Resolution
Given the potential high costs and risks of litigation, manufacturers may consider settlement or alternative dispute resolution (ADR) as a strategic option. This approach can:
- Reduce Litigation Costs: Potentially avoiding protracted legal battles and hopefully minimizing reputational damage.
- Provide Certainty: Resolving claims in a predictable and controlled manner.
Challenges in Defending PFAS Claims
Defending against PFAS claims presents several challenges for manufacturers:
- Evolving Science: The scientific understanding of PFAS and their potential health effects is continually evolving, making it difficult to predict how courts will evaluate evidence.
- Public Perception: PFAS litigation often attracts significant media attention, which may create reputational risks for manufacturers regardless of the legal outcome.
- Regulatory Uncertainty: The lack of comprehensive federal regulation of PFAS can complicate efforts to establish clear standards of liability and compliance.
- Jurisdictional Variability: Differences in state laws and judicial interpretations can lead to potentially inconsistent outcomes across jurisdictions.
Proactive Risk Management and Mitigation
To reduce potential exposure to PFAS claims, manufacturers may want to adopt proactive risk management strategies, including:
- Product Stewardship: Conducting thorough risk assessments and implementing measures to minimize PFAS emissions and exposure.
- Transparency and Communication: Engaging with stakeholders, including regulators, customers, and communities, to address concerns and demonstrate commitment to safety.
- Research and Development: Investing in the development of alternatives to potentially harmful chemicals and supporting independent scientific research.
Defending manufacturers against PFAS claims requires a comprehensive and strategic approach that addresses the scientific, regulatory, and legal complexities of these cases. By challenging causation, leveraging regulatory compliance, and exploring settlement options, manufacturers can mitigate liability and protect their interests. At the same time, proactive risk management and engagement with stakeholders are essential for reducing future exposure to PFAS-related litigation. As the legal and regulatory landscape continues to evolve, manufacturers must remain vigilant and adaptable to navigate the challenges posed by PFAS claims.
- Cordner, A., & Richter, L. (2020). “PFAS Litigation: Legal and Scientific Challenges.” Environmental Health Perspectives, 128(6), 064001.
- Giesy, J. P., & Kannan, K. (2001). “Global Distribution of Perfluorooctane Sulfonate in Wildlife.” Environmental Science & Technology, 35(7), 1339-1342.
- Lerner, S. (2021). The War on PFAS: Litigation, Regulation, and the Fight for Accountability. The Intercept.
- U.S. Environmental Protection Agency (EPA). (2023). “PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024.”
- Vogel, S. A. (2022). “Toxic Torts and the Politics of PFAS Litigation.” Journal of Environmental Law and Litigation, 37(1), 1-45.
