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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Michigan PFAS Contamination Suit against 3M, Wolverine Moves Forward

Plaintiffs, a group of Michigan residents, alleged that 3M and Wolverine’s PFAS-containing Scotchgard products polluted their drinking water and lowered property values. The companies moved to dismiss the complaint, which alleged claims for negligence, private nuisance, and public nuisance and sought medical monitoring, monetary damages, and remediation funding. The court ruled that the plaintiffs did not allege any actual physical injury capable of sustaining a negligence claim, as fear of a future injury does not suffice. The court, however, allowed the remaining claims to proceed.

June 8, 2021 | Zimmerman et al. v. 3M Co. et al., No. 1:17-cv-01062-HYJ-SJB (W.D. MI.)

Judicial Panel on Multidistrict Litigation Sends Michigan PFAS Suit to Multidistrict Litigation in South Carolina

The Judicial Panel on Multidistrict Litigation (JPML) rejected Michigan’s attempt to keep its PFAS lawsuit, filed in January 2020 (Nessel v. Chemguard, Inc., 2021 WL 744683, at *3 (W.D. Mich. Jan. 6, 2021)), in Michigan, instead sending the suit to multidistrict litigation in South Carolina. The JPML determined that Michigan could not separate its claims purportedly not related to aqueous film-forming foams (AFFF) from similar suits involving the foams. The JPML noted that the State’s claims targeting groundwater contamination involve sites allegedly contaminated with both AFFF and non-AFFF PFAS and therefore, must be transferred to the multidistrict litigation involving AFFF in South Carolina federal court.

June 7, 2021 | In re: Aqueous Film-Forming Foams Products Liability Litigation MDL No. 2873

Federal Government Challenges New Mexico’s Definition of PFAS as Hazard Waste

The United States filed for summary judgment in its suit over a hazardous waste remediation permit issued by the New Mexico Environment Department (NMED), arguing that the substances covered by the permit exceeded the state’s authority. The United States contends that NMED acted arbitrarily and capriciously by including PFOS and PFOA among the substances considered “hazardous waste” because neither of these chemicals are identified as such under the Hazardous Waste Act or EPA’s regulations.

June 1, 2021 | United States v. N.M. Env’t Dep’t, No. 2:19-cv-00046-KG-SMV (D.N.M.)

New York PFAS Contamination Case Survives Motion to Dismiss

The District Court for the Northern District of New York denied a motion to dismiss a group of New York residents’ personal injury claims against 3M, DuPont, Honeywell, and Saint-Goban Performance Plastics. The residents alleged that the chemical companies contaminated their drinking water with PFAS. However, some plaintiffs failed to produce authorizations for medical and employment histories and water or blood testing results. After the chemical companies requested dismissal, plaintiffs responded with the requested information, and unresponsive plaintiffs were voluntarily dismissed. The court found that dismissing the claims would be “too severe a sanction.”

May 17, 2021 | In re Hoosick Falls PFOA Cases, No. 1:19-mc-18 (N.D.N.Y.)

Pennsylvania Water Utility Sues Chemical Companies Seeking Cleanup Costs

Aqua Pennsylvania, a private water utility serving approximately 1.4 million Pennsylvania residents, filed suit against 3M, DuPont, Tyco, Chemguard, and other chemical companies for PFAS contamination to its water system. Aqua claims the contamination has forced Aqua to devote significant amounts of time and financial resources to testing and treating water for PFAS. The complaint includes claims for negligence, trespass, failure to warn, and strict liability defective design and seeks compensatory and punitive damages.

May 10, 2021 | Aqua Pa., Inc. v. AGC Chem. Ams. Inc. et al., No. 2:21-cv-02126 (E.D. Pa.)