PFAS Litigation Updates

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The world of PFAS litigation is quickly evolving. As regulatory scrutiny of these compounds increases, so, too, will the body of associated case law. From class actions to multidistrict litigation, this section will regularly highlight developments in PFAS-related litigation.

Content in this section does not reflect the opinion of Alston & Bird or its attorneys.

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More State AG Suits Against PFAS Manufacturers

Arizona, Arkansas, Maryland, New Mexico, Oregon, Pennsylvania, and Washington joined Rhode Island and other states that had previously filed lawsuits against PFAS manufacturers. Alleging harm to their natural resources and property as well as threats to public health and safety, these states seek to recover mounting costs associated with investigating, testing for, and remediating PFAS in drinking water and in the environment more broadly. They assert common law tort claims such as nuisance and negligence as well as state statutory claims under consumer protection and environmental laws.

State of Arkansas v. 3M Company et al., No. 72CV-23-1583 (Washington Cnty. Circuit Ct. June 5, 2023)
State of Oregon v. 3M Company et al., 23CV21902 (Multnomah Cnty. Circuit Ct. May 31, 2023)
State of Maryland v. 3M Company et al., 24C23002528 (Baltimore City Circuit Ct. May 30, 2023)
State of Maryland v. 3M Company et al., 24C23002529 (Baltimore City Circuit Ct. May 30, 2023)
Commonwealth of Pennsylvania v. EIDP, Inc. et al., 259 MD 2023 (Commonwealth Ct. May 30, 2023)
State of Washington v. 3M Company et al., No. 23-2-09821-8 SEA (King Cnty. Super. Ct. May 30, 2023)
State of New Mexico et al. v. 3M Company et al., D-101-CV-2023-01158 (Santa Fe Cnty. Dist Ct. May 26, 2023)
State of Arizona v. 3M Company et al., No. CV2023-008075 (Maricopa Cnty. Super. Ct. May 26, 2023)

Rhode Island Initiates PFAS Litigation

The Rhode Island Attorney General recently filed suit against 3M Company, Dupont de Nemours Inc., and other companies in the Superior Court of Providence County, Rhode Island seeking damages for the cost of investigating and remediating PFAS contamination.  While referencing the many applications of PFAS, Rhode Island’s complaint specifically alleges that state agencies, working with Brown University, have detected “significantly elevated” concentrations of PFAS in numerous public water systems and private wells located near fire stations, airports, and military bases where PFAS-containing aqueous film-forming foam (AFFF) was used.  The Rhode Island Attorney General maintains that the named defendants should be liable for the State’s costs under failure to warn, design defect, public nuisance, trespass, and unjust enrichment theories, and also under the State’s environmental, pollution, and deceptive trade practices statutes.

State of Rhode Island v. 3M Company et al., No. PC-2023-02452 (Bristol Cnty. Super. Ct. May 25, 2023).

Court Greenlights Pet Food Packaging Case

A putative class action against Smucker alleges that Smucker falsely represented pet food products are healthy when in fact the food allegedly contains titanium dioxide, and the packaging “contain (or risk containing)” PFAS. The pet owner’s claims—including consumer protection, false advertising, fraud, and negligent misrepresentation claims—survived Smucker’s motion to dismiss. As in other consumer class actions targeting PFAS on food packaging, the plaintiff in this case alleges that PFAS migrate onto the food and thereby pose health risks, yet the presence of PFAS is not disclosed to consumers.

Humphrey et al. v. The J.M. Smucker Company, No. 3:22-cv-06913-WHO (C.D. Cal. May 22, 2023)

AFFF MDL Court Says (Mostly) No to Summary Judgment

The bellwether municipal drinking water case in the AFFF multi-district litigation was brought by the City of Stuart, Florida, based on PFAS in the city’s water supply. The city’s bid for damages from the AFFF manufacturers was strengthened last month when the court largely denied the manufacturers’ motions for summary judgment. The manufacturers sought summary judgment on the city’s private nuisance claim and certain damages claims, including future operation and maintenance costs and soil remediation costs. Additionally, DuPont/Chemours argued that the city could not tie its PFAS to DuPont/Chemours’ products specifically, and that DuPont/Chemours, as an “upstream manufacturer,” had no duty to warn under the “sophisticated user” doctrine. The court rejected all the defendants’ arguments except as to private nuisance, reasoning that Florida law does not allow a nuisance claim based on the design, manufacture, and distribution of a lawful product. Recently, it has been reported that DuPont/Chemours and 3M Company have reached settlement deals with Stuart and similarly situated municipalities in the AFFF litigation, but those deals are not yet final.

In re: Aqueous Film-Forming Foams Product Liability Litigation, MDL No. 2:18-mn-2873-RMG (D.S.C. May 5, 2023; May 19, 2023)

EPA and DuPont Stipulate to Dismiss a Third-Circuit-Appeal Following EPA Releasing DuPont From Test Order Requirements

Counsel for the EPA and DuPont submitted a joint stipulation of dismissal for an appeal filed in the Third Circuit involving an EPA Test Order that previously required DuPont to comply with testing deadlines and other requirements for 6:2 FTSB and HFPO – different types of PFAS chemicals. The EPA released DuPont from the testing requirements after the chemical company successfully established that: (a) it does not manufacture or process the relevant PFAS chemicals; (b) it does not intend to manufacture or process and has not manufactured or processed the relevant PFAS chemicals during the 10 years preceding the Test Order; (c) it is not responsible for any historic or ongoing activities involving the relevant PFAS chemicals; and (d) it is not a “corporate successor in interest” that may be responsible for satisfying the Test Order’s requirements.

May 18, 2023 | In re: Aqueous Film-Forming Foams Products Liability Litigation Case No. 2:18-mm-2873-RMG (D.S.C.)