Read the full article by Pat Rizzuto (Bloomberg Law)

“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.

‘Worth Tracking’

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.

The American Law Institute is crafting a ‘restatement of the law’ on torts. Restatements describe common law as it stands or might appropriately be stated by a court, the institute says.

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.

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 Wolverine World Wide Inc., which allegedly dumped PFAS-laden waste across the street from her house, and The 3M Co., which once manufactured some of those chemicals. She seeks damages including medical costs, continued medical monitoring, and the funeral expenses for her husband, Joel R. Stelt, who died of liver cancer on March 26, 2016.

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 against Wolverine and 3M brought by 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.”…