Speaker 1: It's one thing for a lawsuit to move slowly, but
Speaker 1: it's another for it to not move at all. Today,
Speaker 1: on Parts Rebellion, we look at the pandemic related delays
Speaker 1: to some very important, very complicated litigation and whether the
Speaker 1: delays themselves could affect the outcome. Hello, and welcome back
Speaker 1: once again to Parts per Billion, the environmental podcast from
Speaker 1: Bloomberg Law. I'm your host, David Schultz. So we all
Speaker 1: know the Constitution guarantees you the right to a speedy trial,
Speaker 1: but whichever genius came up with that must never have
Speaker 1: practiced environmental law. It is far from uncommon for an
Speaker 1: environmental case to take many years to resolve, especially one
Speaker 1: that involves complicated science and big corporations. If you ever
Speaker 1: seen the movie Aaron Brockovich, you know what I'm talking about. Well,
Speaker 1: that's exactly what we have here with the litigation over pfasts.
Speaker 1: Loyal listeners of Parts Rebellion will know that these are
Speaker 1: the substances that were used to cote nonstick pans and
Speaker 1: also to put out fires, and also to a lot
Speaker 1: of other stuff. As it turns out, though they can
Speaker 1: be pretty toxic and worse, they almost never biodegrade. Which
Speaker 1: has earned p FAST the nickname forever chemicals. Of course,
Speaker 1: the people suing the chemical companies over their exposure to
Speaker 1: p fas are hoping their cases don't last forever. But
Speaker 1: in the time of COVID nineteen, when the entire legal
Speaker 1: system has slowed to a snail's pace, these plaintiffs may
Speaker 1: not get their wish. And here to talk with me
Speaker 1: about the delays in the p fast cases is Bloomberg
Speaker 1: Laus Ellen M. Gilmer Ellen, Hello, Hi. I feel like
Speaker 1: I should point out right away too that the Constitution
Speaker 1: guarantees a speedy trial for criminal prosecutions. Okay, all right,
Speaker 1: thank you Ellen Gilmer esquire for that legal advice. I
Speaker 1: appreciate it. I am not a lawyer. Okay, Well, anyway,
Speaker 1: tell me about pfas. You know, we've talked about this
Speaker 1: numerous times, you know, on the podcast, but it's pretty complicated,
Speaker 1: you know, I've written about it dozens of times, and
Speaker 1: I'm still not completely sure I understand what are these chemicals,
Speaker 1: These p fast chemicals. So p FAS refers to this
Speaker 1: family of man made chemicals that are really common. They're
Speaker 1: used on nonstick pans, they're used on carpets, they're used
Speaker 1: on all kinds of household appliances. They're used in firefighting foam.
Speaker 1: And it's a family of thousands of types of chemicals.
Speaker 1: And we should say, you know, p fas, of course
Speaker 1: is an acronym. I'm not saying what that acronym is
Speaker 1: for because it's very hard to pronounce. Ellen, you can
Speaker 1: attempt it if you want, I can do it. You
Speaker 1: can do it. Per and polyfloro alcohol substances. That was impressive.
Speaker 1: So the family of chemicals, it's in all of these things.
Speaker 1: Some types of p fas have been linked to health problems,
Speaker 1: and that is why pfasts are getting so much attention
Speaker 1: in these days because those impacts are starting to be
Speaker 1: better understood and there's a lot of litigation over it. Yeah,
Speaker 1: so the lawsuits I guess are about the mainly people
Speaker 1: were exposed to p fas or also people who may
Speaker 1: have to pay to clean up p fast. You know,
Speaker 1: the lawsuits are going in a lot of different directions.
Speaker 1: Can you just, I mean really briefly tell me you
Speaker 1: know where they are and what stage they're at and
Speaker 1: what's going on with these suits? Right, So there's this
Speaker 1: whole world of p FAST litigation that's kind of moving
Speaker 1: at in fits and starts in different courts on different issues.
Speaker 1: Like you say, some of them are people who were
Speaker 1: exposed to p FASS through their water supply. So this
Speaker 1: is a lot of times happening in communities where one
Speaker 1: of two things is happening. Either one there's a big
Speaker 1: chemical manufacturing site where p FAS has been released into
Speaker 1: the local waterways, or to there's some sort of big
Speaker 1: military base or airport where they're using a lot of
Speaker 1: this fire fighting foam which has commonly had types of
Speaker 1: FEFAT in it. So there's one big lawsuit in Ohio
Speaker 1: that I really wanted to get at. You wrote about
Speaker 1: it in your recent story. It was supposed to go
Speaker 1: to trial like last week, I guess, But I guess
Speaker 1: that's not happening due to all of this pandemic stuff.
Speaker 1: What's going on with that? What's that trial about? And
Speaker 1: why was it delayed? Yeah? Sure, yeah, we'll unpack all
Speaker 1: of that. So this is a case in Ohio. It's
Speaker 1: actually a bundle of a couple of dozen or a
Speaker 1: few dozen cases that all have to do with residents
Speaker 1: of along the Ohio River who were exposed to some
Speaker 1: types of PFEST in their water supply from a DuPont
Speaker 1: chemical manufacturing site that's down there on the Ohio River.
Speaker 1: So this litigation, like its origin story is like two
Speaker 1: decades old. If you saw the movie Dark Waters, which
Speaker 1: came out last year with the is a Hollywood movie
Speaker 1: with Mark Ruffalo, that movie was about this real life lawyer,
Speaker 1: Rob a Lot, who started this crusade about twenty years ago,
Speaker 1: more than twenty years ago. And so this case that
Speaker 1: was supposed to go to trial last week was an
Speaker 1: outgrowth of all of that litigation that really got the
Speaker 1: ball rolling on PFAS overall. And we should say Rob
Speaker 1: a Lot, the real life lawyer who was depicted in
Speaker 1: that movie, was a former guest on this very podcast.
Speaker 1: The actor who played him, Mark Ruffalo, was not maybe
Speaker 1: one day, but I think our listeners should go back
Speaker 1: and listen and listen to Rob a Lot. Anyway, Yeah,
Speaker 1: it was a good episode. I was. He's an interesting guy.
Speaker 1: So there are all these cases from individuals who were
Speaker 1: exposed to it and people who have certain health impacts
Speaker 1: that they think is linked to their p FAS exposure.
Speaker 1: They have filed lawsuits. All their lawsuits are bundled together
Speaker 1: in what's called multidistrict litigation, and what happens there is
Speaker 1: a judge kind of oversees all these cases and then
Speaker 1: individual cases get set up for trial. So there's already
Speaker 1: been a couple of trials that happened earlier this year.
Speaker 1: There was supposed to be a trial last week starting
Speaker 1: on June first. That was really one of these cases
Speaker 1: everybody was really focused intently on. It included actually six
Speaker 1: different plaintiffs, at least one of whom had cancer, others
Speaker 1: had other health impacts, and so they were really eager
Speaker 1: to litigate their claims, and DuPont was eager to get
Speaker 1: these claims litigated as well. Right, And I actually wanted
Speaker 1: to talk with you about the stakes for DuPont because
Speaker 1: a lot of these cases have settled and DuPont has
Speaker 1: paid out settlements, especially in these Ohio River cases, but
Speaker 1: some of them aren't, and they're the ones that are
Speaker 1: going to trial. Of course, I imagine DuPont is also
Speaker 1: pretty eager to settle this and to find out how
Speaker 1: much it's going to have to pay to the cases
Speaker 1: that aren't or to the plaintiffs that haven't settled, and
Speaker 1: that this these COVID related delays are a setback for
Speaker 1: them on that phone as well. Right, So DuPont executives
Speaker 1: have you know, made some statements about really wanting to
Speaker 1: take care of all of this lingering pfast litigation. What
Speaker 1: that means for how what their strategy is for individual cases,
Speaker 1: you know, we don't know that and they haven't said.
Speaker 1: But it was a trial that everyone you know that
Speaker 1: there was a lot of anticipation for. It was delayed
Speaker 1: obviously because of the pandemic. Courts just aren't doing a
Speaker 1: lot of in person proceedings. Jury trials via zoom are
Speaker 1: not something a lot of courts are eager to do.
Speaker 1: Though a couple have tried, I can't say I blame them. Yeah,
Speaker 1: So so it's just been scrapped from the calendar and
Speaker 1: it hasn't been rescheduled yet, and you know, it's not
Speaker 1: going to take the top priority when they are able
Speaker 1: to do in person proceedings again, because they're going to
Speaker 1: need to do all this criminal law stuff first, that's
Speaker 1: really the top priority, and then they'll get to the
Speaker 1: civil stuff. And what we're talking about is civil litigation.
Speaker 1: And this is also affecting other cases that are much
Speaker 1: earlier along in litigation. You know, I'm thinking of that
Speaker 1: big case, consolidated case down in South Carolina that's you know,
Speaker 1: nowhere near trial, but that's it's still being affected by delays,
Speaker 1: Like what's going on there. Yeah, So this is a
Speaker 1: case that has to do with the firefighting foam that
Speaker 1: we talked about, and there are just hundreds of individual
Speaker 1: cases that have to do with the firefighting foam. Who
Speaker 1: should clean it up, who's you know, who's responsible for
Speaker 1: it getting into the environment, and any impacts that's had.
Speaker 1: And they're in the early phases of that, like you said,
Speaker 1: they're in the discovery process, kind of even the early
Speaker 1: stages of the discovery process where each side gets to
Speaker 1: you know, collect documents from the other side and depose
Speaker 1: people from the other side to try to bolster their
Speaker 1: own case. So there have been hang ups with that
Speaker 1: because the corporate defendants three M is a defendant in
Speaker 1: that litigation DuPont again Chemores, which is a DuPont spin off.
Speaker 1: All these companies are involved in that, and they're trying
Speaker 1: to deal with, well, how do we do a deposition
Speaker 1: when we can't do it in person. Sure we can
Speaker 1: do a zoom deposition, but we'd like to at least
Speaker 1: prep our witnesses in person. You know, we want to
Speaker 1: not witnesses, but we want to prep this corporate official
Speaker 1: in person. And do you know this in depth? You know,
Speaker 1: day long preparation before we put them, you know, on
Speaker 1: a zoom deposition where quite a lot is at stake.
Speaker 1: So that's been kind of a hang up there. All right, Well,
Speaker 1: we're going to take a quick break now, but when
Speaker 1: we come back, we're going to talk about how this
Speaker 1: could affect the outcome of these very significant pieces of litigation.
Speaker 1: Stay with us. So we are back and we're here
Speaker 1: with Ellen M. Gilmer talking about delays in really significant
Speaker 1: p fast related lawsuits. Ellen, one of the things that
Speaker 1: I really liked about your story is that you talk
Speaker 1: to attorneys who've been involved in similar litigation to this,
Speaker 1: and you said, you know what happens when there are
Speaker 1: delays in these big kind of environmental cases, and they said,
Speaker 1: almost universally, it always benefits the defendants. Can you tell
Speaker 1: me a little bit more about that and why that is. Yeah,
Speaker 1: So I talk to a lot of lawyers who work
Speaker 1: on big tort litigation like this, and toxic torts specifically,
Speaker 1: and the conventional wisdom they say is you know, delays
Speaker 1: don't favor the plaintiffs. And the big reason for that
Speaker 1: is in a lot of these cases, particularly in the
Speaker 1: kind of mass proceedings where you have a lot of
Speaker 1: different lawsuits bundled together, what you really want is to
Speaker 1: create pressure for settlement. And that's not always the case,
Speaker 1: and we don't know if that's the case in all
Speaker 1: of these individual lawsuits, but that's often a strategy for
Speaker 1: getting your legal complaints your legal complaints resolved. And the
Speaker 1: biggest kind of trigger point for a settlement is a trial.
Speaker 1: And so if you have all of these delays that
Speaker 1: are just delaying the actual trial or delaying all of
Speaker 1: these pre trial things like discovery, it's going to take
Speaker 1: longer for you to get to trial. It's gonna take
Speaker 1: longer for you to get to that. If you're the plaintiff,
Speaker 1: it's going to take longer for you to get to
Speaker 1: that pressure point where the defendants say, all right, maybe
Speaker 1: it's time to make an offer. Yeah, that's a really
Speaker 1: good point. I mean, we talked to our earlier about
Speaker 1: how you know the defendants here, these big chemical companies
Speaker 1: like DuPont, three am Camors, how you know they might
Speaker 1: be eager to have these these issues wrapped up so
Speaker 1: they can get them off their balance sheets. But on
Speaker 1: the other hand, you're right, I mean, these delays will
Speaker 1: give them more time to come up with strategies to
Speaker 1: deal with them, and it also allows them to maybe
Speaker 1: delay having to settle with the plaintiffs. I mean, is
Speaker 1: is that what are you hearing from any of the
Speaker 1: plaintiffs in these cases or plaintiff's attorneys are there saying like,
Speaker 1: we really want to, you know, get this moving, but
Speaker 1: we just can't because of all these pandemic delays. Well, yeah, definitely.
Speaker 1: And you know, one of the lawyers who is involved
Speaker 1: in the firefighting foam litigation that we talked about, he said,
Speaker 1: you know, we were talking about the discovery process and
Speaker 1: how the defendants are uncomfortable with doing depositions without in
Speaker 1: person preparation for some of the depositions. He said, you know,
Speaker 1: the defendants might want to stall because that's a good
Speaker 1: strategy for them. And he said, I don't know that
Speaker 1: they're doing that, but they might want to because that
Speaker 1: would be in their interest to hold off give themselves
Speaker 1: more time just to prepare. They've got. You know, there's
Speaker 1: great legal teams on both sides. And the more time,
Speaker 1: you know, your opponents have to prepare, you know, that's hard.
Speaker 1: And the plaintiffs at this point have kind of done
Speaker 1: all their preparation, put it all out there, and now
Speaker 1: they're ready to, you know, get the documents and depositions
Speaker 1: from the other side and start building out their case.
Speaker 1: And I assume that the defendants or the defendants attorneys
Speaker 1: that you spoke to or at least tried to speak to,
Speaker 1: they didn't have anything to say about this, did there Well,
Speaker 1: so you know, DuPont didn't want to talk about this litigation,
Speaker 1: but we do have you know, we can see the
Speaker 1: transcripts from some virtual court hearings that happened where they're
Speaker 1: discussing their argument with the judge in the firefighting foam case,
Speaker 1: and they were just explaining like, Okay, you know, we
Speaker 1: see this as not a perfect world. We are willing
Speaker 1: to do some zoom stuff. We are willing to make
Speaker 1: some compromises that we wouldn't usually love, but we need
Speaker 1: to draw a hard line. We can't let our corporate
Speaker 1: officials be be deposed without in person prep. So that
Speaker 1: was that was their position. You know, that they could
Speaker 1: do some other some make some other accommodations, but that
Speaker 1: was a bridge too far for them. So that actually
Speaker 1: leads me perfectly into my last question, which is that
Speaker 1: what's next here? I mean, obviously, you know, the judges
Speaker 1: can delay these cases for a while, even months, but
Speaker 1: they can't be delayed forever. You know, at some point
Speaker 1: these trials have to move forward, or these depositions have
Speaker 1: to move forward. Do you get a sense of when
Speaker 1: the judges in these case will say, you know, hey,
Speaker 1: I know you don't want to do you know, zoom depositions,
Speaker 1: but sorry, you're going to have to move forward, or
Speaker 1: our judges being really lenient here and saying, look, you know,
Speaker 1: this is a crazy situation. Take as much time as
Speaker 1: you want. You know, we understand you guys are are
Speaker 1: not able to do what you want to do. Like it.
Speaker 1: Which way are the judges in the case these cases leaning?
Speaker 1: It's definitely not the latter judges you know have We're
Speaker 1: pretty accommodating at the beginning, but as you mentioned, like
Speaker 1: they don't want to sit around all year and wait
Speaker 1: for things to go back to normal. Uh. In the
Speaker 1: firefighting foam litigation, the judge in that case, he's been
Speaker 1: running a really trying to run a very efficient proceeding there.
Speaker 1: That's the one that has like hundreds of cases bundled together.
Speaker 1: He wants that moving along, so he has been nudging
Speaker 1: it forward and he has said, you need to sort
Speaker 1: out your differences and get this thing going because we're
Speaker 1: not going to argue about this. So all year, uh,
Speaker 1: in the Ohio case, we haven't really heard anything. We
Speaker 1: don't know when it's going to be rescheduled. And that
Speaker 1: seems like a little more understandable just because I mean, yeah,
Speaker 1: how it's a jury trial. How could you possibly do
Speaker 1: a jury trial over like Zoom or Sky like just
Speaker 1: I don't know. That's a tough situation for those those folks. Absolutely,
Speaker 1: and there have been some bench trials where it's just
Speaker 1: a judge that have been happening virtually, and some jury trials,
Speaker 1: and there's plenty of great coverage of that in Bloomberg Law.
Speaker 1: But it's not ideal. It's a very very hard, especially
Speaker 1: for a jury trial. How are you going to get
Speaker 1: all these people to be sitting on their computers and
Speaker 1: taking in these complex proceedings and know that they're paying
Speaker 1: attention with matters that you know are extremely important in
Speaker 1: high consequence, so that is not something they want to do.
Speaker 1: And the lawyers said like, yeah, I mean even the
Speaker 1: lawyers who are eager to go to trial, they don't
Speaker 1: want a zoom trial. Yeah, I don't blame them. Well,
Speaker 1: that'll do it. For today's episode of Parts Pavilion. If
Speaker 1: you're at all interested in Pfast, you are in luck.
Speaker 1: We just launched a big project that investigates all angles
Speaker 1: of this issue. It collects all of our work, podcast videos,
Speaker 1: investigative pieces all in one place, and that place is
Speaker 1: bloomberglot dot com, slash p Fast Hype and project that
Speaker 1: you are all once again is blueberglau dot com slash
Speaker 1: Pepass Hyphen Project. Go check it out right now. It
Speaker 1: is awesome. Today's episode of Parts Rebellion was produced by
Speaker 1: myself along with Josh Block and Norris of Horn. Special
Speaker 1: help today came from Anna Yukonanov. Parts Rebellion was created
Speaker 1: by Jessica Combs and Rachel Daegel, and the music for
Speaker 1: today's episode is a Message by Jazzar and Bossily Brave
Speaker 1: by Vincent Francois Perrot. They were used under a Creative
Speaker 1: Comments license. Thank you everyone for listening. Those nine justices
Speaker 1: in Washington that can be pretty hard to keep track of.
Speaker 1: That's where we come in. I'm Jordan Rubin and I'm
Speaker 1: Kimberly Robinson. On our podcast Cases and Controversies, we give
Speaker 1: you a week by week accounting of the Supreme Court,
Speaker 1: the filings, the arguments, the opinions, and much much more. So.
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