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Litigation Grows Over “Forever Chemicals” in Drinking Water

Concern over water pollution from the use of PFAS and their adverse impact on human health has resulted in major litigation in state and federal courts. PFAS, chemicals that are valued for their resistance to water, grease and heat, are used in such consumer products as non-stick cookware, waterproof clothing, food containers, cleaning solutions and carpeting, among others. PFAS are virtually non-biodegradable, earning them the nickname “forever chemicals.” Unfortunately, some have been shown to cause increased cholesterol, reduced immunity to disease and forms of cancer.

There is no doubt that PFAS — short for per- and polyfluorinated alkali substances (also known as PFCs) — are leaching into our water supply. A study by the Environmental Working Group, a not-for-profit research organization, tested for 30 of the thousands of known PFAS chemicals and found them in water from 34 out of 40 sampled locations around the country. However, scientists have yet to study the great majority of PFAS chemicals and their health effects. One scientist has warned that “we don’t know how many PFAS compounds people are being exposed to” and that it’s now “nearly impossible” to escape some exposure.

Toxic tort litigation over PFAS was initially focused on producers of the chemicals. Class actions against two major manufacturers, DuPont and 3M, have already resulted in settlements of more than one and a half billion dollars in damages. Starting in 2016, however, litigators turned their attention to companies that use PFAS chemicals in their products. Several cases, involving such products as coatings, fire-fighting foam, paper and carpets, have been filed nationwide.

There are several legal theories under which plaintiffs injured by PFAS compounds can sue, each with its own standard of proof:

  • Products liability — A lawsuit based on products liability requires proving that the product is defective or unreasonably dangerous or that the manufacturer failed to warn consumers of the product’s health and safety risks. This cause of action doesn’t require proving that the manufacturer was negligent.
  • Ultrahazardous activity — This cause of action is also subject to a strict liability standard, because of the level of risk involved in the activity.
  • Negligence — This theory requires proving that a manufacturer or distributor of products knew or should have known of their dangers but proceeded to put them in the marketplace.
  • Intentional misrepresentation — This requires proving that the manufacturer knew its product was dangerous but represented it to be safe or failed to advise consumers of the risk.

Plaintiffs don’t have to choose between these theories but may raise them in the same lawsuit against multiple defendants. Cases alleging public water contamination are currently pending in New York, Michigan, South Carolina, Ohio, Georgia and Alabama.

Lyons & Lyons, in San Antonio, Texas, is knowledgeable and experienced in representing plaintiffs injured by toxic chemicals and dangerous products. For more information or to discuss whether you have a case, call us at 210-225-5251 or contact us online.

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