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Environment & Energy Report

PFAS Plaintiffs Stranded as Virus Bogs Down High-Stakes Lawsuits

June 1, 2020, 10:00 AM

Trial dates are off the calendar, discovery is delayed, and plaintiffs’ attorneys are getting creative as the coronavirus pandemic disrupts complex PFAS litigation.

Though stay-at-home orders are easing up in some parts of the country, many court cases will take months or longer to get back on track.

The delays mean further uncertainty for the already slow-moving mass of hundreds of lawsuits targeting manufacturers and users of the so-called forever chemicals—and leave litigants in limbo while they wait for proceedings to restart.

“These aren’t just chess pieces on a board,” said Alabama-based plaintiffs’ attorney Jon C. Conlin. “These are people, and the consequences affect their lives.”

The delays could also create a disadvantage for those affected by PFAS contamination.

“The conventional wisdom is that delays do not favor the plaintiffs,” said Tallahassee, Fla.-based Baker Donelson attorney Ralph A. DeMeo, who has represented clients on both sides of environmental tort cases.

Per- and polyfluoroalkyl substances, or PFAS, are a class of human-made chemicals, commonly used in cookware, firefighting foams, and other products, that spread through waterways and the environment.

Some PFAS types have been linked to cancer and other serious health problems, prompting a nationwide swell of lawsuits over exposure and cleanups.

Cancer Trial on Hold

In-person court proceedings have so far faced the most significant pandemic-related disruptions.

In Ohio, a federal court bumped from its calendar a long-awaited jury trial featuring six sets of plaintiffs with cancer and other ailments allegedly linked to a type of PFAS released from a DuPont manufacturing site.

The U.S. District Court for the Southern District of Ohio, which is overseeing the case as part of a broader bundle of litigation focused on the DuPont facility, postponed all trials through June 1, the planned start date for the proceeding.

Clients who have been waiting years to litigate their claims against E.I. DuPont de Nemours & Co. are disappointed to see “the light at the end of the tunnel"—and then have the trial pushed back, said Conlin, a Cory Watson Attorneys principal who represents several of the plaintiffs.

DuPont declined to comment on the postponement. The court is expected to reschedule proceedings later this year.

Shifting Leverage

Delays like that aren’t welcome news to plaintiffs, said DeMeo, the Tallahassee lawyer.

“It gives the defendants that much more time to come up with strategies, bring in additional experts, think of additional discovery,” he said.

Trial delays can disadvantage plaintiffs by weakening pressure on defendants to make attractive settlement offers, said Jason W. Jordan of Jordan Herington & Rowley, a personal injury lawyer who isn’t involved in the Ohio case.

The power dynamics shift, and defendants are less likely to come to the bargaining table when “there’s no hammer over their head,” said Jordan, who’s also vice president of the Colorado Trial Lawyers Association.

But delays are better for both sides than attempting to conduct a jury trial by video conference, as at least one court has done, said King & Spalding LLP attorney Douglas A. Henderson, who often represents corporate defendants in environmental torts.

With a virtual trial over Zoom, “so much of it gets lost in the screen,” the Atlanta lawyer said.

‘Not Living in a Perfect World’

In South Carolina, the pandemic is throwing off the timeline for gathering documents and interviewing corporate officials in complex litigation involving PFAS in firefighting foam.

Hundreds of cases focused on makers and users of aqueous film-forming firefighting foam are consolidated in multidistrict litigation in the U.S. District Court for the District of South Carolina.

Lawyers for DuPont and two of its spinoff companies have resisted committing to upcoming deposition dates for corporate representatives unless stay-at-home orders are lifted, or other pandemic-related circumstances change.

Bartlit Beck LLP attorney Katherine L.I. Hacker told the court in a remote May 1 status conference that DuPont and related corporate entities, including its spinoff Chemours Co., are open to doing some remote depositions, because “we’re not living in a perfect world right now.”

But they want to ensure lawyers can do in-person prep work with witnesses who are speaking on behalf of the companies, she said, according to a court transcript.

The plaintiffs filed a May 6 motion asking the court to step in, arguing “these issues are simply too important to wait.”

“We’re trying to move the case forward and sometimes the defense may want to stall. I’m not saying they’re doing that, but that can be a strategy,” New Orleans attorney Mike Stag told Bloomberg Law. “Justice delayed, justice denied, you know what I mean?”

The Stag Liuzza lawyer is part of the leading group of plaintiffs’ attorneys in the case.

Who’s Exposed to PFAS?

On the front end of PFAS litigation, Covid-19, the disease caused by the coronavirus, is affecting how lawyers zero in on contaminated areas.

Florida attorney DeMeo said delayed environmental assessments in the Sunshine State are bogging down his ability to figure out who might need a lawyer.

Law firms often rely on state and local government testing to identify polluted locations and affected individuals who might want to file suit. But with skeleton crews conducting on-the-ground testing at potentially polluted sites, and lab work facing delays, lawyers will have to wait, DeMeo said.

Other states, including Michigan and Ohio, have also suspended or slowed PFAS-related testing because of precautions due to Covid-19.

Ann L. Al-Bahish, an attorney for Haynes and Boone LLP in Houston, said some states may have to divert resources for the foreseeable future from PFAS-related spending in order to focus on the pandemic.

But in the long-term, she said the pandemic is creating increased public awareness of health issues, which could translate to judges, juries, and potential litigants in PFAS litigation “more attuned to the public health impacts on people,” said Al-Bahish, who has a Ph.D. in public health.

Embracing Zoom

The pandemic also makes it harder for plaintiffs’ lawyers to recruit potential clients. While a lot of client recruitment already happens online and through third-party advertisers, that’s not always the case for PFAS contamination lawsuits.

Plaintiffs’ attorneys tend to rely on in-person community meetings to connect with people affected by local-level environmental damage, said University of Georgia law professor Elizabeth Chamblee Burch, who studies mass torts. That includes PFAS contamination, which often stems from individual industrial facilities.

Lawyers are now relying heavily on Zoom and other online platforms, which can be technologically challenging at times, said Earth and Water Law Group attorney Brent Fewell. But they also allow lawyers to avoid the time and expense of travel, said Fewell, who is part of a four-firm partnership called the PFAS Advisory & Litigation Group.

Stag, the plaintiffs’ attorney from New Orleans, said he learned the hard way how to carry on during a crisis. After Hurricane Katrina shuttered his office in 2005, he and his colleagues were forced to “commando” into the building to retrieve their computer server. The firm temporarily rented warehouse space and used makeshift desks from cardboard trash cans and unfinished doors.

The law firm has since adopted remote-work plans to ensure it can navigate any disruption, including the pandemic.

“We’ve been ready for this,” Stag said. “And waiting for the next one.”

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergindustry.com

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