Early research has determined that approximately 97 percent of all Americans have perfluoroalkyl and polyfluoroalkyl substances (PFAS) in their blood. As more studies emerge on the prevalence and health effects of these “forever chemicals,” more litigation is also emerging against the companies that produced and distributed them. Your company may face steep legal consequences in the coming years as legislation emerges and businesses are held accountable for the cleanup efforts.
If your West Virginia company used or continues to use PFAS compounds, you should prepare for the legal ramifications. Contact Orndorff Mowen PLLC to discuss your defense options and learn how you can prepare your company for the legal fallout from these chemicals.
What are PFAS?
Perfluoroalkyl and polyfluoroalkyl substances (PFAS) are synthetic chemicals used in consumer products since the 1950s. Companies use them to create non-stick coatings on food packaging and cookware, stain-resistant clothing and carpeting, firefighting foam, and more.
PFAS are extremely stable compounds that do not break down easily into the environment, so they gradually collect in soil, groundwater, and air. In addition, companies are still creating new PFAS chemicals, making it more difficult to ascertain the amounts and future effects.
Human exposure to PFAS varies based on occupation and geography. Certain industry workers, such as firefighters and chemical manufacturer employees, are more at risk for high levels of exposure. The location also plays a major role. Most exposure happens through consuming PFAS-contaminated food and drinking water, breathing PFAS-contaminated air, or using products that contain PFAS.
The National Institute of Environmental Health Sciences (NIEHS) seeks to understand how specifically exposure to PFAS affects human health and how to alleviate those effects. Since the chemicals do not break down easily, they can accumulate in the body and allegedly cause significant health issues.
Today, over 9,000 known polyfluoroalkyl substances are used in various industries and products. This fact alone makes definitive research difficult, yet you can expect to see a search for more detailed findings in the near future as several personal injury claims are filed on behalf of plaintiffs.
What are the Health Risks of PFAS?
Current research on the impact of PFAS on human health is ongoing and incomplete. However, some research has indicated potential links between PFAS exposure and health effects such as altered metabolism, increased diabetes risk, reduced fertility, increased cancer risk, and impaired immune system responses.
However, determining these links and effects is an ongoing process. At the same time, environmental and toxicology programs are trying to find better ways of protecting the public from hazardous substance exposure, including:
- Pinpointing geographic locations at most risk
- Educating surrounding communities on how to reduce their exposure
- Fostering innovation in ways to decrease the risk
- Supporting discoveries of how best to remove PFAS at particular sites
Other studies are focusing on how the body reacts and responds to the chemicals. With this understanding, the provision of preventive measures and treatments can be expanded.
Current State of PFAS Litigation
Starting in 1980, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authorized the Environmental Protection Agency (EPA) to clean up hazardous and chemical waste sites. This act began decades of environmental litigation related to chemical PFAS contamination and health risks.
Recently, regulatory and environmental law legislation in the United States has started targeting PFAS directly.
For example, in 2021, the EPA began designating certain PFAS as hazardous substances under CERCLA, also known as the “Superfund” law. In 2022, the EPA issued a memo amending the Clean Water Act to include perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), two of the most prominent PFAS compounds.
The EPA now has a defined Strategic Roadmap for addressing PFAS, with set timelines for taking certain actions and a commitment to finding ways to protect the public.
States are also becoming involved in finding ways to legislate PFAS. For example, the West Virginia legislature passed PFAS legislation earlier this year, taking steps to identify PFAS contamination and recommend actions for public water supply systems. However, this act specifies identifying the chemicals, not requiring their removal or remediation by property owners.
Another step taken by the West Virginia legislature involves an amendment to the current Fire Prevention and Control Act, inserting a requirement to limit the use of fire-suppressing foam, which contains PFAS.
As PFAS regulations increase, both on the federal and state level, more lawsuits will emerge to address these forever chemicals and the liability of the companies that manufactured and distributed them. We will continue to see individual toxic tort claims and potential class actions involving medical monitoring.
Legal Standards for Toxic Tort Liability in West Virginia
A toxic tort is a lawsuit involving injuries caused by toxic substances. These torts frequently fall under the doctrine of product liability. Under such tort claims, a plaintiff must be able to demonstrate the following four points:
- They encountered exposure to a toxic substance.
- They have been injured from exposure to the substance.
- Exposure to the substance is the proximate cause of their alleged injury.
- The defendant was legally responsible for the plaintiff’s exposure to the toxic substance.
In cases of environmental contamination where many people are affected, sometimes a class action, or mass toxic tort case, is filed. Mass tort litigation outside of class actions, such as that in federal multidistrict litigation, may also be appropriate when dealing with a large number of claimants.
In certain jurisdictions, toxic tort cases require expert testimony because the case relies so heavily on proving causation. Even if not required, expert testimony is a common aspect of a toxic tort case. Expert witnesses such as environmental scientists and medical experts testify on the harm caused by the chemical, the exposure level required to harm humans, and the exposure level of the victims.
Defense Strategies for PFAS Toxic Torts
If your West Virginia company becomes involved in PFAS toxic tort litigation, understanding the potential defense strategies will be essential to your case.
Causation
One defense against a toxic tort is to prove that the plaintiff’s injuries or death were not caused by your company or exposure to the alleged toxic substance. Presenting scientific evidence will play a huge role in this type of defense and will commonly require expert witness testimony.
Statutes of Limitation
There is a time limit on when plaintiffs can file a lawsuit. For West Virginia, this statute of limitation is two years.
Comparative Negligence and Assumption of Risk
If a plaintiff was negligent in their use of the alleged toxic substance, you can argue that they caused their own injuries. This also applies if a plaintiff understood the potential for injury and assumed the risk of using the alleged toxic substance anyway. These defenses may mitigate a plaintiff’s alleged damages and reduce liability against a defendant.
Product Liability Waivers and Warning Labels
Some products may include warning labels or waivers of liability. These can protect a company from being sued if the product causes damage. This can be used to protect against lawsuits or to force confidential arbitration, which can be much less costly than a lawsuit.
Government Contractor Defense
This approach is a defense argument that limits manufacturers’ liability when producing military products to government specifications. Using this defense strategy may also assist in arguing removal to federal courts under federal officer jurisdiction.
Settlement Negotiation and Alternative Dispute Resolution
There may be business considerations that support the resolution of claims outside of litigation. For this, you can use an alternative dispute resolution method. A knowledgeable West Virginia toxic torts attorney can represent you and assist in negotiating a more favorable settlement.
Hire a Lawyer to Mitigate Risks
Even if you have not yet faced litigation, you should seek legal advice as soon as possible if your company was involved in the production or distribution of PFAS at any time. Doing so can help protect your company while mitigating any damage that future lawsuits may cause.
A toxic torts attorney will review your circumstances and advise on ways to mitigate the risks of a lawsuit. If one is filed, your legal team will be familiar with your company already and be able to determine which PFAS defense strategy is applicable to defend you.
Brace Your Business for Forever Chemical Litigation
Being and staying prepared for future regulations and potential lawsuits is an imperative and proactive approach to protecting your company. To help brace your business for what may be ahead when it comes to forever chemical litigation, seek legal advice and guidance from the West Virginia toxic tort attorneys with the law firm of Orndorff Mowen PLLC. To find out how we can assist your company in mitigating risk, call us today at 866-481-2765 or submit our convenient online contact form to schedule an initial consultation.
