Hundreds of lawsuits over the effects of so-called forever chemicals are expected in Maine after consumer advocate Erin Brockovich met earlier this month with residents in Fairfield and Unity, where high levels of PFAS have been found.
Concern around the chemicals that have been used for decades in products from food packaging to non-stick cookware to firefighting foam has been growing in Maine after high levels have been found in farm products, fish and wildlife, and drinking water.
As legal efforts progress to help Maine residents and the state pay for costs to cover damage associated with the chemicals, those seeking awards have to be prepared to wait years for their cases to be resolved.
As those cases get underway, litigation against chemical manufacturers elsewhere in the U.S., including in Michigan and Ohio, that have resulted in multimillion-dollar awards could represent one path for the Maine cases. Another set of cases that could serve as an example involve lawsuits against the manufacturers of PFAS-containing firefighting foam. And a 22-year-old case pending in federal court in Maine against a chemical manufacturer over its role in contaminating the Penobscot River shows how long the litigation could last.
Brockovich is known for her work on a groundwater contamination lawsuit against Pacific Gas and Electric in California that was settled in 1996. The effort was popularized in the 2000 film “Erin Brockovich” starring Julia Roberts. The paralegal is credited with helping more than 600 Hinkley, California, residents win $333 million in settlements.
She came to Maine on May 6 and 7 to encourage Maine residents to consider becoming part of a mass tort action. So far, about 200 potential plaintiffs have reached out to Garmey Law, the Portland law firm handling the litigation.
A mass tort action is similar to a class-action lawsuit, but each individual or family sues separately instead of signing onto one lawsuit.
In another legal action, a lawsuit pending in U.S. District Court in Bangor targets the owners and former owners of central Maine paper mills. The plaintiffs are a dozen families in Fairfield who claim PFAS — which include thousands of chemicals used in manufacturing — have contaminated their water or polluted their land, forcing them to stop using their water until they had expensive filtration systems installed.
The plaintiffs are seeking unspecified damages to cover mitigation costs, lost property value and income, medical monitoring, emotional distress and attorney’s fees. Attorneys for the mills have filed motions to dismiss the lawsuit, which is standard at this early phase.
Once discovery is made available in that case and it is determined where the chemicals the mills used were manufactured, another group of lawsuits is expected against the companies that manufactured PFAS.
A San Antonio, Texas, law firm, Watts Guerra LLP, that has experience in mass tort litigation is working with Garmey Law to prepare those cases. The law firms have opened an office in Waterville to meet with potential plaintiffs.
But people who sign onto the litigation must be in it for the long haul, attorney Alexis Garmey Chardon said. Cases in other states have taken nearly a decade to conclude and even longer for some litigants to receive compensation.
A Michigan case filed in 2010 against the chemical manufacturer 3M and settled in 2018 for $850 million may be a harbinger for the Maine case.
Last year, Michigan announced the money would be used to finance six new or expanded drinking water treatment plants, drill at least four new public wells, treat more than two dozen existing wells, connect 296 homes to municipal water supplies and install filtration systems for nearly 1,000 homeowners with contaminated wells.
In Ohio, an $83 million verdict was awarded last year in a class-action lawsuit involving about 80,000 Ohio and West Virginia residents who drank water contaminated by chemical releases from DuPont’s Washington Works facility near Parkersburg, West Virginia. That money has not yet been distributed.
In a separate lawsuit over the same contamination, more than 3,500 class members who suffered from any of six diseases linked to “forever chemicals” filed personal injury cases against DuPont.
DuPont agreed in 2017 to settle those cases for $617 million, but disbursement of the money was delayed when DuPont sued two subsidiaries seeking to share costs. That lawsuit was settled earlier this year when the firms agreed to share costs equally.
In Maine, a lawsuit initiated in 2000 over mercury deposits in the Penobscot River due to pollution from the defunct HoltraChem plant in Orrington is still pending in federal court in Bangor. A consent decree settling the case was entered last year, but U.S. District Judge John Woodcock has not yet signed off on it more than 22 years after the litigation was filed.
In addition to lawsuits over water and land pollution by PFAS, litigators are watching the hundreds of cases firefighters and water districts have filed alleging that makers of firefighting foam used harmful chemicals that injured firefighters and got into municipal water systems. Some firefighters also claim PFAS in their turnout gear had made them ill.
Those cases have been bundled together in U.S. District Court in South Carolina, according to Bloomberg Law. Cases involving water utilities are proceeding first in the multidistrict litigation with a bellwether trial scheduled to begin in March 2023. The individual firefighter claims will move forward after that.
A bellwether trial tests a case that comes from a large pool of lawsuits filed against the same defendants to foresee how future litigation might turn out. Bellwether cases could be used in the Maine litigation.
As the extent of PFAS contamination and the chemicals’ prevalence in popular products becomes clearer, more lawsuits can be expected.
At least three lawsuits have been filed in Illinois and California, for example, against McDonald’s and Burger King alleging that they misled consumers on the safety of their products after Consumer Reports found that nearly half of 24 restaurant chains and grocery stores had at least one food packaging product with high PFAS levels.
In addition to lawsuits from individuals, attorneys general in Ohio and Colorado have sued chemical companies trying to recoup costs and pay for future mitigation. The Ohio action, filed in 2018, is still pending. The Colorado lawsuit was filed earlier this year.
Maine Attorney General Aaron Frey also is preparing to sue the manufacturers of forever chemicals. He is seeking a private law firm to handle the complex litigation.
More articles from the BDN