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PFAS Regulation and Litigation

As a result of the U.S. Environmental Protection Agency establishing lifetime health advisory levels for PFOS and PFOA in drinking water, state regulation of PFAS has surged. Affected sites are routinely being discovered nationwide. Now on the radar as an emerging contaminant, PFAS chemicals are the subject of not only increased regulation, but also the potential for litigation over cleanup costs by the EPA, states, and municipalities, among others.

Product liability, occupational exposure, and nuisance claims for personal injury and property damage are also increasing. Aggressive and well-funded plaintiffs’ firms have begun bringing actions on behalf of individuals, water providers, water districts and state and local governments over alleged water contamination resulting from PFAS releases. In New York, plaintiffs have won class certification of claims that include medical monitoring. Because PFAS chemicals may be found in a broad range of products – such as carpets, cardboard boxes, industrial equipment, firefighting foams and apparel – the threat of lawsuits is real for companies in a diverse range of industries.

PFAS Regulatory and Litigation Experience

Having advised clients and interacted with regulators on PFAS regulatory issues for more than a decade, we offer clients a robust understanding of the science and legal theories relating to the perceived environmental exposure issues surrounding PFAS. As the EPA and numerous state environmental departments address the complex issues surrounding testing, regulatory standards, and remediation goals and technologies for PFAS, this experience will be critical in helping clients navigate what will be new, and likely conflicting, requirements across the nation.

Our deep familiarity with PFAS is bolstered by our extensive experience defending clients in class-action and community-wide environmental tort litigation. This includes tort claims involving chemicals such as MTBE and hydrocarbon and chlorinated solvents. We understand the tactics of plaintiffs’ firms in these types of matters, including how to respond to dockets of “copycat” cases on behalf of multiple plaintiffs in multiple jurisdictions.

Our work in defending “neighborhood” cases involving toxic exposures directly translates to PFAS litigation. We have successfully defended against alleged exposures to TCE, TCA and PCE, vinyl chloride, polychlorinated biphenyls, dioxins, benzene, creosote, beryllium, fungicides and mixed chemical contamination at hazardous waste sites. We have faced the whole gamut of medical claims, including cancer, endocrine disruption, birth defects, immune dysfunction, neurological injury, and multiple chemical sensitivities, as well as claims for medical monitoring, natural resource damages, diminished property values and lost profits. We have defended against cutting-edge liability theories, including those arising out of Hurricane Katrina. And most importantly, we have won major cases before juries and successfully resolved others through dispositive motions, exclusion of experts, mediation, arbitration, and summary jury trial.

Representative Matters

  • Assisted a client in successfully responding to an Environmental Working Group petition before the Consumer Product Safety Commission involving PFOA and worked with the client and two outside experts to successfully defend a Proposition 65 action regarding polytetrafluoroethylene and PFOA/PFOS before the California Attorney General’s office.
  • Serve as national coordinating and trial counsel for several Fortune 500 companies in some of their largest occupational exposure litigation, such as asbestos, silica, and welding fumes. We develop long-term strategy, manage discovery, identify and develop experts and fact witnesses, brief key legal issues, coordinate trial activities and serve as counsel of record in some proceedings. 
  • Represent a major petroleum refiner and marketer in nationwide MTBE litigation brought by state governments, water providers, municipalities, and individuals. Underlying claims are very similar to PFAS claims, alleging negligence, public and private nuisance, trespass, and strict liability for design defect or failure to warn based on alleged contamination of groundwater and drinking water supplies.
  • Represented a major defense contractor in environmental litigation in Florida state court alleging community-wide exposure to chemical substances from alleged plant releases. Defeated class certification, after an evidentiary hearing and on appeal, of claims for lifetime medical monitoring arising out of occupational and environmental exposure to beryllium. This litigation was the subject of more than 550 newspaper articles.
  • Defended two of the nation's largest chemical manufacturers against 25 plaintiffs' claims of occupational asthma as a result of exposure to isocyanates and ethylene diamine in the manufacture of the Gore-Tex® waterproof membrane. After a nine-week trial, the jury returned 75 defense verdicts for the two companies and a co-defendant. Successfully defended the verdicts twice on appeal, establishing the "sophisticated user" defense as the law of Maryland.
  • Defended Cooper Industries for 17 years in litigation alleging that groundwater and air contamination produced a wide range of diseases in a local Kentucky community. Defeated class certification; tried and won a case alleging potential harm to nearby coal miners; settled more than 500 claims at the close of the evidence in a 52-day jury trial; won an arbitration of a tort of outrageous conduct case; and defeated hundreds of claims of PCBs and dioxins exposure by successfully excluding all expert evidence that plaintiffs had higher levels of the chemicals in their blood than members of the general population.
  • Served as lead defense trial counsel for a number of oil and chemical companies in a Judicial Council Coordinated Proceeding in Los Angeles, involving over 750 current and former employees claiming all forms of cancer and systemic disease from alleged occupational exposures to the universe of chemical products and solvents used in manufacturing. This work included multiple mass trials of 15 to over 40 plaintiff cases, and ultimately resulted in the entry of summary judgments for the defense in all cases after 25-plus years of litigation.
  • Represented CSX Transportation as trial counsel in national environmental neighborhood cases and putative class actions in several states. We also coordinated CSX’s FELA chlorinated solvent litigation, as well as the company’s creosote docket.
  • Represented a major crop protection manufacturer in a series of cases alleging that exposures to a fungicide caused birth defects. We successfully ended the litigation after obtaining Daubert exclusion of plaintiffs’ causation experts in West Virginia federal court and Delaware state court, both upheld on appeals.
  • Represented clients in environmental spill and neighborhood litigations in which the effects of Hurricanes Katrina and Rita on landowners and the environment are central to the damage and causation claims of plaintiffs.

Why Crowell & Moring?

In short, we know the science; we know the governing regulatory regimes; we know how to litigate and try environmental and occupational exposure matters whatever form they may take; and we know how to tackle multi-pronged challenges such as this – including the early minimization and management of risk.

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Crowell & Moring LLP is an international law firm with offices in the United States, Europe, MENA, and Asia that represents clients in litigation and arbitration, regulatory and policy, and transactional and corporate matters. The firm is internationally recognized for its representation of Fortune 500 companies in high-stakes litigation and government-facing matters, as well as its ongoing commitment to pro bono service and diversity, equity, and inclusion.

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