Read the full article by John O’Brien (Legal Newsline)
“CHARLESTON, S.C. (Legal Newsline) – It’s just a fact of life that companies can get tangled up in expensive litigation that goes on for years before they can start defending themselves.
That’s the opinion expressed at an Aug. 7 hearing by South Carolina federal judge Richard Gergel, who showed his unwillingness to grant motions to dismiss in the multidistrict litigation concerning chemicals known as PFAS. The MDL was formed 20 months ago but defendants have not been able to attack the claims made by plaintiffs yet.
Hundreds of cases are consolidated in the MDL over water pollution claims while the debate continues on what the toxicity levels of PFAS chemicals are and as private lawyers continue to shoot for big government clients.
The companies facing these lawsuits wouldn’t be named as defendants if there weren’t good reasons for it, Gergel feels, adding he has to view the allegations in the light most favorable to the plaintiffs.
‘(T)hese guys on the plaintiff’s side are talented lawyers,’ Gergel said as one company made its argument that it shouldn’t be named as a defendant in these cases.
‘I would be – you know, I would think that the chances that they’re going to leave it in a way that there’s no basis for liability would, you know – I’m just – I haven’t seen it. I’m just going to suggest that that’s a – that can be a tall order for a defendant at a motion to dismiss stage.’
In December 2018, PFAS cases were consolidated before Gergel, a President Barack Obama-appointee who spent decades representing plaintiffs in personal injury cases at his firm Gergel, Nickles & Solomon in Columbia.
Twenty months later, the only motion to dismiss was filed by BASF Corp. as a procedural move to finalize a tolling agreement with the plaintiffs firm Napoli Shkolnik. This is in contrast to other high-profile MDLs in which companies began their defense in about six months like the opioid MDL and the Deepwater Horizon oil spill MDL.
Four months after the PFAS MDL was created, Gergel denied all motions to dismiss in cases that were transferred to him without prejudice. Since then, a new briefing schedule has not been determined…”