Is the European PFAS Litigation Wave Beginning?
For the past few years, the European PFAS litigation has largely escaped being at the forefront of PFAS news articles, as the EU and member states’ efforts to enact regulations and the U.S. PFAS litigation dominated the daily updates. Recently, however, PFAS manufacturer 3M agreed to settle PFAS environmental pollution claims brought by Belgium for $581 million. The sum does not include any sort of settlement for personal injury to citizens of Belgium. Those familiar with the history of the U.S. PFAS litigation will see similarities between the settlement with Belgium and the inception of the litigation in the U.S. It is certainly apt to ask, therefore, whether the most recent European PFAs litigation settlement will open the floodgates to additional litigation akin to the U.S. litigation.
PFAS Litigation Landscape To Date In The U.S.
Thus far, the PFAS litigation has centered on lawsuits filed against PFAS manufacturers (primarily, Dupont and 3M) for environmental cleanup and remediation, with a number of lawsuits against these companies for personal injury claims. The settlements and damages awarded in these cases have been eye-opening to many, and we have predicted for quite some time (and the litigation is beginning to show this) that downstream commerce companies that utilized PFAS would be the next targets in litigation.
By way of background, in 2010, Minnesota brought the first PFAS pollution claim against 3M for negligently discharging PFAS used in the manufacture of Scotchgard into sources of drinking water. The lawsuit resolved in 2018 for $850 million, which the state used to fund drinking water and water sustainability projects in the areas affected by contamination. Several states have since followed suit, including Michigan, whose Attorney General sued 17 companies that manufactured PFAS in January 2020 alleging causes of action under the Natural Resources and Environmental Protection Act, the Michigan Fraudulent Transfer Act, and Michigan’s laws of negligence, trespass, public nuisance, and unjust enrichment. Similar lawsuits have arisen in other states throughout the United States, including Alaska, Wisconsin, Georgia, Tennessee and Alabama.
On the personal injury front, the most well-known personal injury PFAS lawsuit (featured in the blockbuster film Dark Waters) was brought by Attorney Rob Bilott against DuPont on behalf of citizens in Parkersburg, West Virginia. Ultimately, the case settled for $670 million in 2017. What is most notable about the lawsuit, however, is the precedent it set when the court permitted (and the parties agreed to) the convening of a three person independent science panel (the so-called C8 Science Panel, C8 being another name for PFOA) to investigate the potential links between PFOA exposure and the effects on human health.
The C8 science panel concluded that there were probable links between PFOA exposure and the development of kidney and testicular cancer, ulcerative colitis, thyroid disease, pregnancy-induced hypertension, and high cholesterol. The science panel and resulting medical monitoring agreement for the 70,000 citizens that participated in the lawsuit cost DuPont over $100 million in this case.
Shortly after the C8 science panel findings, Attorney Bilott and Dupont began litigating each person’s case one by one in West Virginia. Three cases went to verdict, each resulting in a plaintiffs’ verdict: (1) $1.6 million compensatory reward for a kidney cancer plaintiff; (2) $5.1 million compensatory and $500,000 punitive award to a testicular cancer plaintiff; and (3) $2.1 million compensatory and $10.5 million punitive reward for a testicular cancer plaintiff. It was shortly after the third verdict that Dupont settled all of the pending claims in the class action for the $670 million sum. Since then, two other cases went to verdict against Dupont in Ohio – one was a hung jury and will be retried, the second resulted in a $50 million award to a testicular cancer plaintiff.
In addition, a Multi District Litigation (MDL) was set up in South Carolina for claims of environmental pollution and personal injury related to aqueous film forming foam (AFFF). While the MDL does involve both Dupont and 3M, it also involves several manufacturers of AFFF that used PFAS as a component of their AFFF. Today, there are over 2,500 cases pending on the MDL.
European PFAS Litigation – Belgium Settlement
For several decades, 3M owned a PFOS manufacturing plant in Antwerp, Belgium. In 2021, citizens began testing soil and their own blood for PFAS, which led to a discovery of elevated PFOS counts. Belgium’s government intervened and ultimately reached an agreement with 3M by which 3M will pay $581 million in environmental remediation costs. The agreement does not cover personal injury claims that citizens could bring and the Belgian government is still actively pursuing an environmental criminal investigation in the matter.
It is likely that at some point, personal injury lawsuits on a large scale will follow the remediation settlement out of Belgium. These will certainly serve as test cases in Europe for large scale personal injury PFAS litigation, similar to what we saw in the U.S. in the litigation that resulted in a $670 million settlement several years ago. It is this settlement, plus the environmental remediation settlement out of Minnesota for $850 million that are largely seen as the catalysts for the PFAS litigation that exists today in the U.S. It is certainly not inconceivable to imagine a similar future for European PFAS litigation.