Sandy Wynn-Stelt knew she’d been drinking startlingly high amounts of a potentially harmful group of chemicals known as PFAS from her contaminated home well for years.
Still, she was surprised last year when her doctor said that exposure made it “prudent” to do some thyroid tests as they investigated the cause of her chronic throat problems. Thyroid disease is among the illnesses associated with some per- and polyfluoroalkyl substances, or PFAS, commonly referred to as “forever chemicals.”
Four months later her surgeon removed a cancerous thyroid and 20 lymph nodes.
“I’m more blessed than I deserve to be,” she said in a recent interview.
Her experience epitomizes the reasons why Wynn-Stelt and other people living in communities contaminated by PFAS are suing to force companies that make or use the chemicals to pay for medical tests to monitor their health. Guidance coming from legal and medical professionals may bolster their cases.
The dangers of PFAS contamination are spurring policies at the highest levels of government. The White House last week announced a multiagency plan to cut PFAS pollution. House and Senate Democrats, meanwhile, have introduced legislation allowing people exposed to PFAS to sue manufacturers to pay for medical monitoring.
Wynn-Stelt said she was lucky to get a good doctor. Not everyone is so fortunate.
“I might not have had the blood tests that showed my PFAS concentrations. My doctor might not have made the connection between my exposure and symptoms, or he could have dismissed my hoarse voice as typical of my age,” said the 61-year-old Belmont, Mich., resident.
Two hurdles people living in PFAS-exposed communities typically face are: courts reluctance to grant medical monitoring requests, and physicians lack of knowledge about the chemicals and available tests to monitor PFAS-exposed patients’ health.
Two documents under development by independent legal and medical committees could change that.
For the first time, the attorneys, judges, and legal scholars drafting the restatement have proposed language describing situations where court-ordered medical monitoring could be warranted, according to a draft copy reviewed by Bloomberg Law.
Meanwhile, a committee convened by the National Academies of Sciences, Engineering, and Medicine, which advises federal agencies, is preparing advice for clinicians about whether they should use medical tests for some PFAS-exposed patients, situations that could justify the tests, and how to communicate information to patients. A Centers for Disease Control and Prevention (CDC) agency that works with state health agencies asked for the advice, for a possible update to its existing clinicians guidance.
The committee members’ expertise and their breadth of independent viewpoints makes them highly influential resources for courts and the broader legal community even though their advice won’t be binding, said John Gardella, a trial attorney and shareholder with CMBG3 Law, who advises companies about PFAS liability.
“They’re another piece in the arsenal that proponents could use. They’re worth tracking,” he said.
Bar Remains High
Wynn-Stelt is suing shoemaker
Neither Wolverine’s attorneys nor those defending other companies named in PFAS litigation agreed to be interviewed, but lawyers specializing in corporate defense litigation did.
Securing court-approved medical monitoring petitions remains novel, even though such claims have been made and sometimes granted for years, said Mark A. Behrens, co-chair of Shook, Hardy & Bacon L.L.P.'s Public Policy Practice Group in Washington, D.C.
There’s no clear trend for this type of tort claim that’s predominantly handled by states, he said.
Michigan, for example, doesn’t recognize medical monitoring claims. The state’s Circuit Court, Kent County, in May 2020 approved a confidential PFAS settlement between Wolverine and 3M and some members of Wynn-Stelt’s community. Before doing so the court denied their medical monitoring request citing Henry v. Dow Chemical Co.
In Henry, the Supreme Court of Michigan acknowledged that plaintiffs might face financial losses by paying for medical tests to track their health. But state law “requires an actual injury to person or property,” the court ruled. Yet “we recognize that the common law is an instrument that may change as times and circumstances require,” it said.
About half of states permit medical monitoring as either part of a broader injury or a standalone claim while about half do not, Behrens said. He summarized states’ tendencies in an October 2020 Defense Counsel Journal article.
The idea of medical monitoring—physical exams and clinical tests that help healthcare professionals track their patients’ health—is to flag disease onset early when the patient’s own behavior can improve his or her prospects or treatment can prevent the disease from getting worse.
While courts traditionally have required a physical injury before ordering defendants to pay for medical tests, there are exceptions, said Megan Noonan, a Vermont attorney whose article on medical monitoring and PFAS appeared in the Vermont Law Review. If an event exposes an individual or group to significant increased disease risk, and testing could make a difference in their future, some courts will grant monitoring in the absence of current injury, she said.
That idea was embodied in the 1984 case Friends for All Children v. Lockheed Aircraft Corp., in which a plane crashed while carrying infant Vietnamese orphans to the United States. The D.C. Circuit required Lockheed to set up a fund for diagnostic expenses to test the babies over time to find out if they later developed nervous system disorders.
The bar to secure that type of monitoring—before a physical disease manifests—remains high, however, Noonan and other attorneys told Bloomberg Law.
VIDEO: What are “Forever Chemicals,” and how is the race to regulate and litigate them shaping up across the country?
Picking up the Tab
Paying a community’s medical monitoring costs can take a bite out of a company’s bottom line. E.I. du Pont de Nemours, Inc. agreed in 2005 to pay up to $235 million in medical monitoring costs as part of a settlement in a case involving PFAS exposure in Ohio and West Virginia.
A proposed class-action settlement with Saint-Gobain Performance Plastic Corp. involving PFAS would cap medical monitoring for a Hoosick Falls, N.Y., community at $22.8 million.
Yet liability doesn’t end with monitoring. “In our case, if you get a disease you can file a subsequent claim for damages,” said James J. Bilsborrow, who represented Hoosick Falls residents and specializes in class action, environmental litigation, and product liability at Seeger Weiss LLP.
DuPont and its spin-off,
To Wynn-Stelt, however, it’s a matter of justice.
People who drank contaminated water and individuals working in industries with high exposures should have their PFAS blood concentration and other tests paid for “by insurance or the polluter, not by us. We didn’t do this,” she said.
1,000 Times Higher Exposure
Wynn-Stelt’s home is located across the street from a forested area that Wolverine says was licensed by the state and used to dispose of tannery waste. Wolverine allegedly used some PFAS because they are prized for their effectiveness in waterproofing.
A DuPont chemist unintentionally discovered a type of PFAS in 1938. Eventually marketed as Teflon, it was considered a miracle product that has special electrical properties and resists heat, oil, water, and corrosion making it useful for thousands of industrial and consumer products—including non-stick pans.
3M’s variations of the chemicals led to their widespread use in similar applications along with carpets and specialized firefighting foams. But the properties that make the chemicals so effective are the same ones that raise concerns. The chemicals degrade so slowly that some of them are estimated to be in the blood of 97 percent of Americans.
Yet scientists studying people exposed to the chemicals have found they can increase cholesterol, decrease infant birth weight, weaken the immune system, disrupt thyroid function, and increase the risk of cancer.
Wolverine is removing PFAS and other wastes under an agreement overseen by the U.S. Environmental Protection Agency and Michigan’s Department of Environment, Great Lakes, and Energy.
Meanwhile concentrations of just one PFAS chemical, perfluorooctanoic acid (PFOA), reached 71,000 parts per trillion in Wynn-Stelt’s well in 2018, according to a complaint filed by her attorneys in Michigan’s Kent County Circuit Court. That concentration is more than 1,000 times higher than the 70 parts per trillion recommended limit set by an EPA health advisory.
Total PFAS levels in her well reached 88,000 parts per trillion, which is “believed to be the highest concentration of PFAS ever found in drinking water in the United States,” according to her lawsuit.
Her attorneys urged her to have her blood concentrations measured. At the time few laboratories could do that, but eventually she found one and paid $800 for the tests, she said.
Wynn-Stelt’s PFAS levels were more than 500 times higher than most U.S. residents, the complaint said. Her subsequent care largely has been paid by her insurance, but other people in her neighborhood haven’t been so lucky, she said.
Part of Personal Injury
Fears of potential illnesses and anger at feeling invaded by PFAS due to corporate irresponsibility, are fueling thousands of lawsuits filed by individuals, communities, and firefighters across the country.
Medical monitoring can be sought by individuals, like Wynn-Stelt, or through class action lawsuits. The petition is typically part of a personal injury lawsuit, said Don Foty, founding partner Hodges and Foty, LLP, who’s representing firefighters in multidistrict litigation against companies making firefighting foam with PFAS.
Plaintiffs must prove allegations including negligence and the presence of injurious amount of PFAS in the blood, he said. That’s often done with testimony from medical and scientific professionals and information about the level of PFAS states have deemed hazardous in drinking water, which varies, Foty said.
Originally many of the cases targeted 3M and DuPont, but increasingly companies like Lockheed Martin Corp., Tyco Fire Products LP, and Wolverine that allegedly purchased, used, and released PFAS, are being sued.
When medical testing is granted, the results of subsequent tests can support later individual injury claims if disease manifests, said Paul Napoli, of Paul Napoli Law PLLC, who’s representing plaintiffs in the multidistrict firefighting foam and other PFAS litigation.
One characteristic some PFAS have—their ability to remain in the body for years—makes it easier to prove exposure than with other chemicals, he said.
Making the Connection
But making the connection between the chemicals and disease isn’t as simple or clear as connecting asbestos exposure to the lung disease mesothelioma, Napoli said.
As scientists continue studying the links between PFAS and disease, Foty and Napoli think attorneys will be able to connect the dots and convince courts to grant monitoring even in the absence of current injury.
Meanwhile, doctors treating patients whose jobs or drinking water have exposed them to high levels of PFAS don’t have to wait for a signature disease like mesothelioma, said Alan Ducatman, a physician and professor emeritus with West Virginia University.
Most diseases that can result from exposures to something in the environment don’t have signature outcomes, yet physicians know that benzene, for example, can increase the risk of leukemia, he said.
Society also has figured out ways to recognize increased risk and offer compensation, said Ducatman, who has been paid by plaintiffs’ attorneys.
‘Never Heard of Them’
If plaintiffs’ attorneys succeed and a court grants medical monitoring for a community, there’s another challenge the lawyers face, Bilsborrow said. Few doctors are familiar with PFAS and available tests used to track patients’ health, Bilsborrow and several physicians said.
Knowledgeable doctors need to design the medical monitoring program and educate the physicians and clinics that will care for the community, he said. “Plaintiffs lawyers shouldn’t be designing medical monitoring. Neither should defendants,” he said.
Andrea Amico, a Portsmouth, N.H., resident who has helped her community grapple with its PFAS water contamination since 2014, described her reasons for working with universities and federal agencies to get them to issue guidance for health care providers.
“Physicians didn’t know what PFAS were. They’d never heard of them, didn’t know potential health effects, couldn’t give good guidance on how to get them out of the body, and didn’t know what tests were available,” she said.
Wynn-Stelt, who works on PFAS with communities nationwide, said she knows she was lucky that her doctor was eager to educate himself about the chemicals and available tests.
“There needs to be more awareness by doctors,” said John Adgate, a public health professor teaching at the University of Colorado, who’s studying El Paso County, Col., residents exposed to PFAS chemicals in their drinking water. And some successful efforts are emerging: a coalition of research institutes and communities issued concise, scientifically accurate, and useful guidance for doctors in July, he said.
Guidance to Help Claims?
Awareness could rise if the National Academies of Sciences, Engineering, and Medicine recommends clinicians test some PFAS-exposed patients and if the agency revises its guidance accordingly.
“The existence of such guidance will help claims seeking medical monitoring,” Foty said.
If the National Academies recommends medical tests for some PFAS-exposed patients, and the American Law Institute’s restatement describes conditions when medical monitoring can legally be justified, that would have a combined impact, Gardella said.
“Not only are the utmost legal experts saying this, but the utmost medical experts say this would benefit patients,” he said.
That could open the door to judges granting medical monitoring in courts that are on the fence or disinclined to grant it, Gardella said.
It also could spur legislators in states that bar medical monitoring to adopt laws allowing it, Foty said.
But the academies recommendations could cut the other way, Kevin Mayer, a partner and defense attorney with Norton Rose Fulbright US LLP. The panel could recommend against testing, or it could face tremendous criticism, he said.
And while the availability of clinical tests is an essential part of granting medical monitoring claims, it alone doesn’t mean courts will or should do so, Mayer said.
‘We Didn’t Want This’
Until the guidances are released, it won’t be clear what impact they may have on physicians treating PFAS-exposed patients or courts rulings. The academies expects to publish its recommendations in the spring. The Law Institute declined to give any timeline by which it aims to finish its restatement.
Gardella thinks companies involved with PFAS should think about whether agreeing to medical monitoring would make sense for their particular situation.
“There are pros and cons,” he said. It could mean spending money in the short term, but avoiding a lot of litigation later on if injuries don’t manifest, he said.
Yet “we don’t want to pay everybody who has an exposure, because of the concern that it drains resources away that may be needed to compensate people in the future that do become sick,” Behrens said.
Monitoring makes sense to Wynn-Stelt. Her doctors never said PFAS caused her cancer, but the awareness that the chemicals increased her risk and the subsequent tests and surgery prevented the tumor from getting bigger and spreading more.
The medical community needs to recognize the increased risk PFAS pose, and insurance should pay for people with higher-than-normal exposures to be tested just as it would pay for a child’s blood lead levels to be measured, she said. Her experience showed the results can may save someone’s life, she added.
“Nobody wants Teflon in their blood,” she said. “It’s not like I was intentionally drinking bad water. I didn’t see my tap water turning fluorescent orange,” Wynn-Stelt recalled. “You can’t taste it you can’t smell it.”
“We just wanted waterproof shoes, we didn’t want this in our veins, our blood, our organs. I wasn’t licking my shoes,” she said. “I shouldn’t have this rolling around in my blood stream.”