Judge Asks for Crash Course in the Science of PFAS Chemicals (1)

One judge in South Carolina is recognizing his own shortcomings, at least when it comes to science: Before embarking on a major “forever chemicals” case, he’s asking lawyers to arrange a crash course.

Judge Richard M. Gergel held the so-called “Science Day” Oct. 4, before he begins to hear testimony in a wide-ranging product liability trial involving PFAS, or per- and polyfluoroalkyl substances that are linked to a host of health problems.

Several scientists who study these chemicals came to the judge’s courtroom in the U.S. District Court for the District of South Carolina to educate him about how the substances work, how they’re used, and what dangers they could pose.

The experts for the plaintiffs were Dave Macintosh, Chris Higgins, and Robert Bahnson, and the experts for the defendants were Philip Guzelian, Avram Frankel, and Michael Larranaga, plaintiffs’ attorneys said.

Judges holding these types of science days in their courtrooms is a relatively recent phenomenon, said Allan Kanner, attorney with the firm Kanner & Whiteley, who is representing Vermont in this case.

“Judges are increasingly being asked to deal with novel scientific questions and novel technology questions,” especially in product liability suits, said Kanner, who previously worked on the Deepwater Horizon oil spill litigation.

“A lot of judges were saying, ‘Hey, I went to law school because I wasn’t good at science!’ A science tutorial is one of many ways that a judge can educate themselves.”

PFAS Chemicals

Gergel’s science day may be one of the first courtroom debates over the safety, or lack thereof, of PFAS chemicals.

The lawsuit he’s presiding over revolves around the environmental fallout from using firefighting foam with PFAS. The defendants are companies that made the foam, or supplied the PFAS that went into the foam: 3M Co., as well as subsidiaries of Johnson Controls, United Technologies Corp., and others.

Paul J. Napoli, a New York-based attorney with the firm Napoli Shkolnik who is representing the plaintiffs, said because nearly every previous PFAS lawsuit has ended in a settlement, this could be the first time the safety and use of these chemicals—also widely used in nonstick coatings—will be debated in open court.

What Is a Science Day?

The testimony at the science day is solely for Gergel’s benefit and won’t be transcribed, which means it can’t be used later as evidence in the case.

“It is not a trial and the judge will make no rulings,” said Scott Summy, another plaintiffs attorney in the case, with the firm Baron & Budd. “It is informational only.”

However, that doesn’t mean the attorneys should take this lightly, said R. Brent Wisner, an attorney with the firm Baum, Hedlund, Aristei & Goldman.

Wisner recently worked on a large product liability suit over the weed-killing chemical glyphosate, which also involved a science day. He said plaintiffs attorneys can use the science day to say to the judge: “Hey look, we’re not messing around here. We have real experts and we have a real handle on the scientific complexity of the case.”

“If a lawyer is ill-prepared,” Wisner added, “it sets a really poor tone for the rest of the litigation.”

Courts have also called for scientific guidance in litigation involving climate change. In 2018, the U.S. District Court for the Northern District of California held a climate science “tutorial” in a set of cases brought by California municipalities seeking to hold energy companies financially accountable for the impacts of rising global temperatures.

Strong Bonds

In addition to firefighting foam, PFAS chemicals have been used in the manufacturing of Scotchgard, Teflon, and other nonstick coatings.

They earned the nickname “forever chemicals” because their chemical bonds are extremely strong, making them resistant to biodegrading in the environment, or in the human body. The chemicals have been linked to health problems including thyroid problems and certain cancers.

The makers of firefighting foam are being sued by people who say their illnesses were caused by PFAS, and by municipalities and water utilities that are struggling to clean the chemicals from underground aquifers.

Attorneys representing these companies in the dozens of consolidated lawsuits being heard in South Carolina didn’t respond to questions, or couldn’t be reached.

Science Discrepancies

In a July 24 order, Gergel laid out six categories of questions he hopes will be answered on the science day, which was originally scheduled for Sept. 6 but postponed because of Hurricane Dorian.

Among them are questions about why the EPA and states have set different safety thresholds for levels of PFAS in drinking water, what specific types of ailments PFAS can cause, and whether there are any replacements for these chemicals that are as effective at putting out fires.

Wisner said that defendants in product liability cases typically have the upper hand, since science days usually occur before discovery begins.

“From a plaintiffs’ perspective, I don’t like science days. The defendants usually know more about science,” he said. “They make the product. They have the in-house experts. They’re usually very well prepared.”

The case is In Re Aqueous Film-Forming Foams Prod. Liab. Litig., D.S.C., No. 18-02873, 10/4/19.

—With assistance from Ellen M. Gilmer.