Influx of ‘Forever Chemical’ Claims Expected

| Jul 8, 2020 | Toxic Torts

Dangerous chemicals can lead to lawsuits by injured parties. And in some cases, one claim triggers a deluge of other complaints.

We could very well start seeing this trend play out with regard to perfluorooctanoic acid, or PFOA. This is a human-made chemical burned off when making certain products. And businesses using PFOAs could start facing legal action by victims claiming the contamination has caused injury.

PFOA: A “forever chemical”

According to recent reports like this one, numerous claims are in the works related to PFOA and water contamination. And many more are expected to emerge.

The cases refer to PFOAs as a “forever chemical,” which is a chemical that does not breakdown in nature or the human body. People can be exposed to them from many sources, from drinking from contaminated water sources to working at a company manufacturing fluoropolymer coatings, as the chemical has properties that repel grease, oil, and water. While the PFOAs are often burned off during manufacturing of the products, products like cardboard food containers, Teflon and fabric protectors like Scotchguard can still expose a person to PFOAs.

The plaintiffs allege that the companies named in the lawsuits knew that the chemicals were dangerous and that they failed to report concerns to the Environmental Protection Agency.

Proliferation of cases likely in California

For several reasons, we expect there to be numerous other cases to follow those recently filed – particularly here in California.

To begin with, California has some of the most aggressive rules in the country for testing and notification with regards to PFOAs found in wells. If even a minute amount of PFOAs is found, California State Water Resources Board requires water agencies to notify their governing board, which then notifies consumers served by the contaminated well.

For reference, in 2016, the U.S. Environmental Protection Agency recommended that municipalities be notified if testing reveals PFOA levels of 70 parts per trillion in public water supplies. In 2019, the Division of Drinking Water in California dropped that notification level to just 5.1 parts per trillion.

With increased testing and low thresholds for notification, more people will know about their exposure to PFOAs.

Further, although companies have largely been phasing out PFOAs, people can still find them in virtually every environment. And again, they do not breakdown naturally. So even though companies stop using them, any PFOAs previously found in water supplies, landfills and manufacturing sites can still pose a threat.

Complications expected in these cases

Allegations in cases like these often appear relatively straightforward: A company knowingly released dangerous chemicals that caused damage.

In reality, however, each element of that statement can be challenged.

For starters, The American Cancer Society notes that nearly every person has at least some PFOA in their blood. Low levels can also be in drinking water, food, and various stain-resistant products. Therefore, confirming the reason why one person may have elevated levels of PFOA can be incredibly complicated.

There also is not consensus among agencies about how toxic PFOA is.  While multiple federal agencies have conducted studies and have not concluded definitively that PFOA is carcinogenic, states like California have determined PFOA exposure, particularly in drinking water, does pose an increased risk of developing adverse health effects, including cancer.

In addition to the dispute regarding the effect of the chemical on human health, the exposure level at which it poses a risk is still the subject of ongoing research. For instance, the presence of PFOA in a person’s blood is not a guarantee that a person will get sick. If someone does, however, there could be many factors contributing to a person’s illness; and some people remain asymptomatic. These details could be used to challenge allegations that PFOAs are the cause of a person’s illness and that the person should receive compensation.

Uncertainty in the legal landscape

Another consideration that can complicate legal claims involving PFOAs is the extent to which companies must comply with regulations. There can be enormous costs and logistical challenges in terms of bringing a company into compliance with updated notification levels. Clean-up efforts can also be expensive and extremely complicated.

The fact that we have yet to see definitive answers regarding just how dangerous PFOAs could be only adds to the uncertainty that businesses and consumers face when it comes to assessing legal liability.

We will continue to follow developments concerning the legal landscape of this issue. In the meantime, parties navigating this highly complex and unstable legal matter should be cautious when making any sort of assumption, concession, or guarantee without first consulting an attorney.