PFAS Inspired Litigation: An Increasing Number of Entities are at Risk

Posted by on May 8, 2019

Poly- and per-fluorinated alkyl substances (PFAS) are a group of synthesized chemicals that have been used for more than 50 years across many types of industries. For instance, PFAS compounds are widely used in non-stick products (e.g., Teflon), water- and/or stain-proof fabrics (e.g., clothing, furniture), food contact materials (e.g., certain types of cardboard), firefighting foams, cleaning products, and paints, among many others (Buck 2011).

PFAS are thought to be chemically stable and therefore persistent in the environment which means that they have the potential to accumulate in animals and humans. There exist both Federal and State programs that regulate PFAS, including maximum values permitted for groundwater, drinking water, surface water/effluent, and soil.

Scientific studies have sought to examine the relationship between PFAS exposure and any potential association to various human adverse health effects. But the science thus far is not supportive of a causal link between exposure to PFAS and any adverse human health effect. Further, accurate identification and quantification of PFAS have proven to be an analytical challenge since PFAS occur in complex mixtures that can change over time. Furthermore, because PFAS is ubiquitous and persistent, collected samples can be inadvertently contaminated with PFAS (e.g., arising from a scientist’s clothing, laboratory plasticware, etc.) despite using the utmost precautions in sampling technique.

Indeed, based on the reported findings of the C8 Science Panel (which was formed as part of a Settlement Agreement in a class action lawsuit against a PFAS manufacturer), the appointed researchers reported a probable link to only six human diseases/conditions among the more than two dozen that were considered. It is worth noting that by concluding that the link was “probable,” the evidence by this panel did not even reach a threshold to be classified as an association.

Overall, the six health conditions highlighted by the C8 Science panel are:

  1. Kidney Cancer
  2. Testicular Cancer
  3. Ulcerative Colitis
  4. High Cholesterol
  5. Thyroid Disease
  6. Pregnancy-induced Hypertension (including preeclampsia)

The conclusions of the C8 panel, among other reasons, have initiated a flood of lawsuits against manufacturers of PFAS, as well as other parties along the chain of custody. Many of the cases allege that plaintiffs’ exposure to PFAS via drinking water was the cause of their injury. Other cases relate to alleged property damage that was caused by industrial sites or from the use PFAS-containing firefighting foams.

Who else is at risk?

Given the ubiquitous presence of PFAS in the environment, coupled with the heightened scrutiny of activists, regulators and scientists, companies may be at risk for PFAS-inspired litigation and might be caught off-guard if they do not adequately prepare. For instance, after the release of a report sponsored by various activist groups, Whole Foods (owned by Amazon) removed from its stores food contact papers that were purported to contain PFAS (based on fluorine content of the packages) some of which were containers being used in the salad and hot-food bars. Other targeted companies were found to have fewer items that tested positive according the study’s criteria. While this report suffered from several important limitations and would not likely withstand rigorous peer-review, it generated a fair amount of negative media attention and resulted in Whole Foods pulling products from their shelves.

Experts and scientific literature are key

As these lawsuits make their way through the courts, defense attorneys will have to retain credentialed experts across a variety of specific disciplines to effectively counter the allegations being made by plaintiffs. While each case will have nuances that will require a unique cadre of experts, we envision that a mix of the following disciplines might be required:

    • Groundwater Scientist (Hydrogeology; fate and movement; remediation)
    • Analytical Chemist (familiar with the methods of detection for PFAS)
    • Various Medical Disciplines (Oncologist, Lipidologist, OBGYN, Immunologist, etc.)
    • Environmental Engineer
    • Epidemiologist
    • Toxicologist

Further, the literature on PFAS is burgeoning at an incredible pace. Maintaining an awareness of the scientific literature will be key to mounting an effective defense.

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