Read the full article by Marina Schauffler (The Maine Monitor)
“Shortly after hearing from the Maine Department of Environmental Protection that their well should be tested for per- and polyfluoroalkyl substances (PFAS), a Fairfield couple watched the movie ‘Erin Brockovich,’ a true-life legal drama set in the 1990s. Julia Roberts portrays a struggling single mother of three young children who, in her newfound work as a legal aide, uncovers evidence that a Pacific Gas and Electric plant in Hinkley, Calif., was poisoning the community’s water source, prompting a successful lawsuit against the corporation.
Following the movie, the couple wondered, ‘What if that happens here? What if this is us?’
By early 2021, Brockovich, who became a community health advocate, had begun to work with Fairfield-area residents, mobilizing a legal team and water experts.
The Maine Legislature subsequently took a critical step to ensure that legal actions would not be hampered by these chemicals having been in the environment for decades. In June 2021, Gov. Janet Mills signed a law clarifying that Maine’s six-year statute of limitations applies to the time of PFAS discovery rather than its initial occurrence on a property.
The statute of limitations is one of many complicating factors in legal cases involving toxic chemicals, where extensive time can elapse between initial exposure and evidence of medical harm. PFAS pose particular challenges even relative to compounds like asbestos and mercury because so much about them remains unknown.
While PFAS are often labeled ’emerging contaminants,’ it’s the scientific and toxicological understanding of them that’s emerging, not the compounds themselves. They have been produced since the 1950s and manufacturers knew of their dangers a half-century ago.
‘An explosion of litigation’
Evidence of early corporate awareness about the chemicals’ toxicity came largely from cases brought by Ohio attorney Robert Bilott, a partner at Taft Stettinius & Hollister LLP. His 22-year legal battle with DuPont, captured in the movie ‘Dark Waters‘ and his book ‘Exposure,’ has secured more than $1 billion for PFAS-affected clients.
Bilott’s first PFAS suit, settled in 2001, unearthed more than 110,000 pages of evidence that he synthesized into a 978-page public letter shared in 2001 with the U.S. Environmental Protection Agency.
A subsequent settlement in 2004 required DuPont to fund an independent scientific panel assessing links between PFAS exposure and medical conditions in roughly 70,000 people whose drinking water was contaminated with PFAS from one of the chemical company’s manufacturing plants. That seven-year study helped link PFAS exposure to medical conditions such as ulcerative colitis, thyroid disease, and testicular and kidney cancer.
Now Bilott is seeking a broader-scale scientific panel to assess medical impacts in a class action suit filed in 2018 in U.S. District Court Southern District of Ohio that could include tens of millions of U.S. citizens with PFAS in their blood (according to CDC research, that applies to nearly every American). The panel would look at potential health damage from multiple PFAS, including the second-generation (GenX) chemicals that manufacturers began producing when pressured to stop making ‘legacy’ (or long-chain) PFAS compounds. ‘They can’t bring out new PFAS chemicals and then say there’s insufficient evidence as to whether they’re harmful or not,’ Bilott said.
It’s not clear whether residents of other states will be included with the more than 10 million represented in Ohio. ‘In coming months,’ Bilott added, ‘the Sixth Circuit Court of Appeals will be taking briefs about whether the case can proceed on behalf of such a class.’
That suit might only be open to residents of states that recognize medical monitoring as a legal claim. In toxic tort cases, plaintiffs often claim a need for medical monitoring, such as annual blood work or other periodic tests, to aid in early detection of diseases related to their chemical exposures. While 16 states recognize medical monitoring to some extent, a 2020 summary in Vermont Law Review by Megan Noonan noted that Maine does not do so explicitly and past cases make its treatment unclear.
In recent years, awareness ‘has grown markedly that these compounds are not only a national problem but a global one,’ Bilott said. Now there’s ‘an explosion of litigation’ not only among states but among municipalities, water providers and affected citizens.” …