NEW YORK -- Defense lawyers are raising concerns about an emerging “second wave” of PFAS litigation against water suppliers, grocery stores and other downstream PFAS users that are being targeted by plaintiffs despite not having produced the chemicals, underscoring the renewed call for protections against liability for such parties.
“In a case where you bring a product liability action against the manufacturer, that company has created the product, designed the product, sold and profited from that product, and probably has some knowledge about the characteristics of that product,” John Galvin, partner at Thompson Coburn, said during a May 30 session of the American Conference Institute’s “PFAS Regulation, Compliance and Litigation” annual conference here.
“So, suing that company under product liability theory, at least it makes logical sense to us. It’s intuitive, there is arguably some culpability there for a company that is involved in that way.”
Galvin continued, “But now we’re seeing the second wave of cases come forward, the next wave of cases against companies that did not manufacture PFAS. They didn’t design it, they didn’t create it, they didn’t profit from the sale of PFAS, per se -- it may have been included in their products intentionally or sometimes unintentionally.”
In some cases, Galvin noted, defendants in per- and polyfluoroalkyl substances (PFAS) contamination suits have more “robust” allegations against them, but some are “truly innocent sellers.” He noted such entities being targeted include food manufacturers and packaging companies, cosmetic companies, grocery stores and water suppliers.
Others are noting similar trends. “The entity whose name is on the package or on the advertising is the one most often named, though retailers are named if the product is a store brand, and the plaintiff wants to put pressure on the manufacturer,” lawyers at Steptoe & Johnson note in a June 10 article, “PFAS Lawsuits on the Rise: Trends, Risks & Takeaways.”
As such, note attorneys with law firm Morgan Lewis, companies should be taking proactive steps to defend themselves against liability or prepare for legal action.
“Litigation risk is spreading beyond traditional defendants to include retailers, importers, and secondary manufacturers,” the Morgan Lewis attorneys write in a June 2 blog post.
‘Creative Theory’
While such cases may be proliferating, the lawyers note that product liability cases against PFAS manufacturers are already difficult as plaintiffs often struggle to illustrate the injury that resulted from the contamination, whether there was economic harm, or even what specific PFAS was in the product they purchased and were harmed by.
The Steptoe article also noted that “most judges are less familiar with PFAS matters than the more typical cases on their dockets.”
But cases against secondary manufacturers or other downstream users can be even more difficult, lawyers said, because the arguments are not always straightforward.
“In a lot of ways, it’s trying to fit a square peg into a round hole,” Galvin said. “What we’re seeing is it can’t be a straightforward product liability theory. So, we see more creative theory, some trespass and nuisance, particularly local manufacturing, where there’s air emissions and things like that. But otherwise, a lot of things like . . . consumer fraud cases, [where the defendant] represented that this would be a safe and clean product, but in fact it had these chemicals in it. . . . They’re harder than a straightforward product liability case.”
For example, Galvin discussed a water supplier in Connecticut that was sued because of PFAS contamination in its water, even though the supplier was not the original source of the contamination.
“They’re trying to provide potable water to people, somebody else has contaminated that water, and now we’ve got a situation where a water company is being sued for providing water to its customers,” Galvin said, “and that just doesn’t comport with our usual idea of who should be culpable, who should be responsible in a lawsuit. But we’re seeing this sort of extension of liability theory to try to go against other types of people in different parts of the supply chain.”
The Steptoe article added, “The claims that are typically asserted include negligence or gross negligence, private and public nuisance, trespass, strict liability (failure to warn, abnormally dangerous activity, or design defect), and violation of state and federal environmental laws.
Galvin noted that in a firm survey of 100 PFAS cases against consumer companies over the past five years, only 22 are still active, and only eight have progressed past the “motion to dismiss” stage, with some being voluntarily dismissed, owing, in part, to the difficulty in establishing arguments in such cases. -- Pavithra Rajesh (prajesh@iwpnews.com)
