WEBVTT - PFAS Litigation May Bring Down More Companies

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<v Speaker 1>Can one lawsuit bring down a fortune five hundred company.

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<v Speaker 1>Sure it can if it's not just one lawsuit, but

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<v Speaker 1>thousands combined into one. Today on Parts per Billion, we

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<v Speaker 1>talked about where the litigation over p FAST is heading

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<v Speaker 1>and whether the defendants will be able to survive this

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<v Speaker 1>lawsuit del uge. Hello, and welcome back once again to

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<v Speaker 1>Parts per Billion, the environmental podcast from Bloomberg Law. I'm

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<v Speaker 1>your host David Schultz. Per and polyfloral alcohal substances, also

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<v Speaker 1>known as p FASS, have affected countless lives, both the

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<v Speaker 1>people who were exposed to them and the people who

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<v Speaker 1>made them. These so called forever chemicals are some of

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<v Speaker 1>the most durable and water resistant substances known to man. Unfortunately,

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<v Speaker 1>as their nicknames suggests, they also almost never break down

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<v Speaker 1>the environment, instead accumulating in the soil, in water, and

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<v Speaker 1>in the human body. We hear at Bloomberg Law have

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<v Speaker 1>been covering Fast for several years now, but a new

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<v Speaker 1>story from our colleague Andrew Wallander indicates that this legal

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<v Speaker 1>saga may have moved into a new chapter. Andrew looked

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<v Speaker 1>at data on thousands of p FAST lawsuits, and he

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<v Speaker 1>found that the scope of the plaintiffs targets is widening

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<v Speaker 1>not just to the early p facet adopter DuPont, but

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<v Speaker 1>also to other companies, including the chemicals a manufacturing giant

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<v Speaker 1>three M. The playing field for all of these suits

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<v Speaker 1>is something called multi district litigation or m d L,

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<v Speaker 1>which is definitely not to be confused with a class

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<v Speaker 1>action suit, very very different. I asked Andrew to explain

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<v Speaker 1>to me how this is affecting the trajectory of all

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<v Speaker 1>these lawsuits and also just exactly what multi district litigation

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<v Speaker 1>actually is. Yeah, so it's a bit of a complicated topic,

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<v Speaker 1>but essentially the goal is when you've got a number

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<v Speaker 1>of lawsuits on the same topic, it's a process meant

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<v Speaker 1>to standardize simplify it a bit. So if you've got

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<v Speaker 1>two or more lawsuits on the same topic filed in

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<v Speaker 1>at least two different federal courts, one of the parties

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<v Speaker 1>in the lawsuits can move to centralize all those proceedings

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<v Speaker 1>um in sort of one docket overseen by one judge

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<v Speaker 1>in a single district, and that's meant to quicken up

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<v Speaker 1>all the pre trial motions, the hearings, the discovery um

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<v Speaker 1>and make it so that you don't have a bunch

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<v Speaker 1>of different decisions being made by different courts on the

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<v Speaker 1>same topic. Uh. And so you know, unlike class action

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<v Speaker 1>lawsuits where everyone has the same injury, with multi district

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<v Speaker 1>litigation cases, it's often, you know, the same thing that's

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<v Speaker 1>causing an injury, but the injury to parties can be

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<v Speaker 1>different and it can vary. Yeah. That's one thing that

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<v Speaker 1>really confused me initially when I was covering this is

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<v Speaker 1>that we're not talking about a class action here, which

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<v Speaker 1>is lots of people suing one party over the same thing.

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<v Speaker 1>This is lots of people suing a similar party over

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<v Speaker 1>different things, but they're all related, and you know, all

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<v Speaker 1>the suits are buying just for efficiency's sake. It's exactly exactly. So,

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<v Speaker 1>you know, it makes sense, or at least it sounds

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<v Speaker 1>like it makes sense. But there are some people who

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<v Speaker 1>criticize this multi district litigation or mdls it's called. Can

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<v Speaker 1>you talk a little bit about that, about some of

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<v Speaker 1>the criticisms of it. Yeah, So some of the people

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<v Speaker 1>I talked to, and especially those on the defendant side,

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<v Speaker 1>brought up concerns that with multi district litigation, it encourages

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<v Speaker 1>plaintiffs attorneys to file uh. And it attracts more lawsuits

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<v Speaker 1>uh than otherwise would be filed uh and and and

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<v Speaker 1>their criticisms were that where that you know, it's easy

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<v Speaker 1>for these people to come in and join this multi

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<v Speaker 1>district litigation when the discovery is already underway. A lot

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<v Speaker 1>of the heavy lifting, the heavy leg work is is

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<v Speaker 1>taking place already um. And so their criticism was that

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<v Speaker 1>these people kind of come in and UM joined the

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<v Speaker 1>lawsuit and try to get part of a settlement before

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<v Speaker 1>one comes out. Whether that's true or not to be seen,

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<v Speaker 1>but that's one of the criticisms. So it kind of

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<v Speaker 1>lowers the bar for filing a suit. And you know,

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<v Speaker 1>when you lower the bar, I guess you get some

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<v Speaker 1>suits that maybe aren't with merit right. And that's that's

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<v Speaker 1>the argument, is that that you know, there's not a

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<v Speaker 1>high bar to bring some of these cases and and

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<v Speaker 1>you can directly file into an MDL as well. UM.

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<v Speaker 1>Of course, as the case goes on, some of those

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<v Speaker 1>cases will be weeded out and and and dismissed or

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<v Speaker 1>transferred out of the MDL. So let's talk about the

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<v Speaker 1>the MDL for p Fast or should I say the

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<v Speaker 1>latest one, because we've already had to here's the third. Uh.

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<v Speaker 1>It's very confusing, as p F as always is. Can

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<v Speaker 1>you sort through, um, how this one is different from

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<v Speaker 1>the other two? Yeah? Absolutely, So the other two we

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<v Speaker 1>had one in the mid to late two thousand's. UM.

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<v Speaker 1>That one was only a few dozen cases, not very big.

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<v Speaker 1>It focused on teflon uh. And so that was primarily

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<v Speaker 1>against DuPonts uh and the tents around or So uh.

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<v Speaker 1>And and for the years after that, there was a

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<v Speaker 1>number of lawsuits filed over pollution from a plant in

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<v Speaker 1>West Virginia, UM, also against DuPont. And that was one

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<v Speaker 1>specific site. That was one specific site exactly. UM. And

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<v Speaker 1>so now a different company, more zones that plant. UM.

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<v Speaker 1>But you're you're probably familiar with it. UM. There are

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<v Speaker 1>a number of movies that came about from from that case,

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<v Speaker 1>Dark Waters, The Devil we know Star Dark Water starring

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<v Speaker 1>Mark Ruffalo Yep, yep, exactly. Uh. And by the way, uh,

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<v Speaker 1>the man that Mark Ruffalo played uh in that movie,

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<v Speaker 1>Rob a Lot, was a former guest on this very podcast.

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<v Speaker 1>Fantastic Just to brag a little bit. UM. But I

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<v Speaker 1>get the sense that you know, for the third md L,

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<v Speaker 1>which is the one that we're talking about here. It's

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<v Speaker 1>not just one site, it's not just one location. This

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<v Speaker 1>is way bigger and exactly exactly so, so this multi

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<v Speaker 1>district litigation case is focused on a type of firefighting

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<v Speaker 1>foam called aqueous film forming foam or a triple uh.

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<v Speaker 1>And so it is a much bigger case because it

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<v Speaker 1>involves a number of companies. It's not just DuPont that's

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<v Speaker 1>being sued. It's it's three m keim Guard, all these

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<v Speaker 1>different other companies. Uh, anyone that made p fast that

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<v Speaker 1>went into products or that um produced the secondary products,

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<v Speaker 1>actually made the foam or sold the phone, they're being

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<v Speaker 1>sued as well. So there's a lot more parties involved.

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<v Speaker 1>The scope is much wider. This is of course nationwide

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<v Speaker 1>because uh, for years the military has required a triple

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<v Speaker 1>left to be used at military bases and airports as well.

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<v Speaker 1>They are they follow mill spec uh, and so they

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<v Speaker 1>have to have a triplet at airports Mill spec. That's uh,

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<v Speaker 1>you know, the the specifications that you know, stuff that

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<v Speaker 1>the military uses has to meet exactly to put it

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<v Speaker 1>sort of in our fully um and you know we

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<v Speaker 1>should talk about you know, this key fast is of

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<v Speaker 1>course not good for the environment, not good for human health.

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<v Speaker 1>But you know, it's worth repeating that this is some

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<v Speaker 1>of the only stuff that can put out fires on

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<v Speaker 1>air force bass on airports in a safe way. I mean,

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<v Speaker 1>this is this is this is vital stuff that can't

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<v Speaker 1>be substituted. Yeah, absolutely so, I mean, and that that's

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<v Speaker 1>why this has been used so widely and been required

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<v Speaker 1>by the military. Is is um. This type of foam

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<v Speaker 1>is used for liquid fuel fires that are fueled by

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<v Speaker 1>by oil gas and those fires get so hot that

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<v Speaker 1>water is ineffective. It just evaporates before it can have

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<v Speaker 1>an effect. Um. And so this this foam also it

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<v Speaker 1>will cover a fire, it will deulse it um suffocated

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<v Speaker 1>essentially with with this foam. And it's because of the

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<v Speaker 1>fast and the way that it's so um durable, it

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<v Speaker 1>doesn't it doesn't break down easily, uh, that it's able

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<v Speaker 1>to have this effect. But oh yeah, So there's been

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<v Speaker 1>work under way to figure out other other ways to

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<v Speaker 1>fight these fires, not using p FAST, and there's some

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<v Speaker 1>substitutes that are being looked at now, but for the moment,

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<v Speaker 1>p fast has still been widely used. So for your story,

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<v Speaker 1>you did some you know, real data diving, and you

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<v Speaker 1>looked into the thousands and I mean thousands of p

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<v Speaker 1>FAST lawsuits that have been filed thus far. And it

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<v Speaker 1>sounds like one of the conclusions that you found is that,

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<v Speaker 1>you know, initially almost all of the suits were against

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<v Speaker 1>DuPont and most of them were related to that site

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<v Speaker 1>that we talked about in West Virginia. Not the case anymore.

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<v Speaker 1>It sounds like three M is now a major player

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<v Speaker 1>and it's getting sued a lot more. Tell me about

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<v Speaker 1>this data, how you collected it, and what it means. Yeah,

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<v Speaker 1>so this this story came about with just the simple

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<v Speaker 1>question of looking at liability with p fast. Who bears

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<v Speaker 1>the most liability right now for for contamination And so

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<v Speaker 1>we decided to get into that by looking at lawsuits.

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<v Speaker 1>And so we went and we used our Boomberg Law

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<v Speaker 1>platform uh to to do a few targeted searches to

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<v Speaker 1>find cases that mentioned p Fast that we're dealing with

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<v Speaker 1>with p Fast and then also looking at those three

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<v Speaker 1>md ls we mentioned, um those multi district litigation cases.

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<v Speaker 1>UH there's a list of you know, lawsuits that are

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<v Speaker 1>member cases that are attached to that, so we're able

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<v Speaker 1>to grab those as well. UM put all the cases

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<v Speaker 1>we found into a database uh, standardized some of the names. Uh,

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<v Speaker 1>you duplicated some of the entries. UH, and then analyzed,

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<v Speaker 1>you know, the trends over time and and what was

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<v Speaker 1>happening with these lawsuits. Uh. And yet, like you mentioned,

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<v Speaker 1>it was very much so do POMP being sued early on. Uh.

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<v Speaker 1>They were sort of the go to target for p

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<v Speaker 1>fast litigation. And UH. Now with this this new wave

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<v Speaker 1>that we're seeing of litigation over p fast, UH, there's

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<v Speaker 1>a lot more parody and who's being sued. It's not

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<v Speaker 1>just DuPont Um, but Uh, yes, three M is is

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<v Speaker 1>certainly one of the most talked about defendants. UM. A

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<v Speaker 1>number of the people I spoke to UM shared that

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<v Speaker 1>they did at all. They made all the different UM

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<v Speaker 1>components of of they made p fast, but then they

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<v Speaker 1>also made the finished products that P fast went into

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<v Speaker 1>and sold it and UM, so they have a lot

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<v Speaker 1>of liability. And also one of the interesting things I

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<v Speaker 1>learned reporting on this too is one of the allegations

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<v Speaker 1>in the lawsuit, or in the lawsuits that are being filed,

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<v Speaker 1>is that three M made a specific type of p

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<v Speaker 1>fast p f os and they were the only ones

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<v Speaker 1>who made that type of p fast And so the

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<v Speaker 1>argument in the in the lawsuit is is that you

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<v Speaker 1>can pinpoint where three M products specifically have polluted certain sites. Um,

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<v Speaker 1>and you can say, oh, if that that p FOS,

0:11:02.920 --> 0:11:06.080
<v Speaker 1>that p FOSS is there, you know it was three M.

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<v Speaker 1>It's like it's like a chemical signature, exactly, like a

0:11:09.240 --> 0:11:12.720
<v Speaker 1>chemical signature, UM, three M. For their party, they said

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<v Speaker 1>that that's not true that others also made this type

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<v Speaker 1>of p fas. But that's that's one of the things

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<v Speaker 1>that's been looked at in lawsuit. Well let's talk let's

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<v Speaker 1>get it a little bit more into the defense here. Um.

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<v Speaker 1>You know, it sounds like one of the main defenses

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<v Speaker 1>that the defendants are putting forth is, like you said, Millspeck,

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<v Speaker 1>that essentially they made these products for the military, for

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<v Speaker 1>the government, and there's something called the government contractor defense,

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<v Speaker 1>which states that more or less, if you make a

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<v Speaker 1>product for the government or for the military, you are

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<v Speaker 1>immune from most product liability lawsuits resulting from that product.

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<v Speaker 1>Do I have that right? And if so, is that

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<v Speaker 1>a defense that could win the day for for three

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<v Speaker 1>M DuPont in these other Yeah. Yeah, So the companies

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<v Speaker 1>are are putting out this this government contractor defense and

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<v Speaker 1>and that's that's a defense that was recognized in the

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<v Speaker 1>late eighties by the Supreme Court UH in a in

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<v Speaker 1>a separate case. And UH, basically, like you said, it

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<v Speaker 1>says that companies can't be held to state's product liability

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<v Speaker 1>laws if they made products provided them to the military

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<v Speaker 1>and they were to military specification. And so UH, there's

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<v Speaker 1>basically three prons to that defense that have to be

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<v Speaker 1>met for it to be used. And one being that

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<v Speaker 1>the the government specified, uh, what a product needs to

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<v Speaker 1>look like. Sounds like that applies here, it sounds yep, yep.

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<v Speaker 1>And then um, second, the product actually has to conform

0:12:46.120 --> 0:12:50.319
<v Speaker 1>to those specifications that companies making sure. And then third,

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<v Speaker 1>and this is kind of the big one that's really

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<v Speaker 1>being looked at, um now with with p fas, is

0:12:56.080 --> 0:12:59.960
<v Speaker 1>that the companies had to warn the government about any

0:13:00.120 --> 0:13:03.160
<v Speaker 1>dangers with the products that they knew of that the

0:13:03.200 --> 0:13:06.640
<v Speaker 1>government did not know of. Yeah, So that that's that's

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<v Speaker 1>that's what a lot of the UH pre trail stuff

0:13:09.840 --> 0:13:12.760
<v Speaker 1>is focusing on right now is looking at did the

0:13:12.760 --> 0:13:16.839
<v Speaker 1>company's warn the government about all the dangers with p

0:13:17.000 --> 0:13:23.040
<v Speaker 1>fas before this mill spec a triple F came about. Uh,

0:13:23.080 --> 0:13:26.320
<v Speaker 1>And you know, some of the reporting that's been done

0:13:26.320 --> 0:13:31.680
<v Speaker 1>previously has shown that DuPont three M had internal studies

0:13:31.720 --> 0:13:34.360
<v Speaker 1>going back to the to the sixties showing that they

0:13:34.400 --> 0:13:38.680
<v Speaker 1>knew that p FAS was harmful to human health and

0:13:38.840 --> 0:13:41.000
<v Speaker 1>mom lasting in the environment. But I guess you know,

0:13:41.120 --> 0:13:44.120
<v Speaker 1>even if they knew, did they tell the government? Did

0:13:44.160 --> 0:13:47.680
<v Speaker 1>they tell the military that that this could be a problem? Exactly? Yeah,

0:13:47.840 --> 0:13:50.400
<v Speaker 1>that's fascinating, yep. So there's lots of discovery going on

0:13:50.520 --> 0:13:53.400
<v Speaker 1>right now. There's millions of documents being produced in this

0:13:53.520 --> 0:13:57.160
<v Speaker 1>this multi district litigation case. Uh, lots to sort through,

0:13:57.320 --> 0:14:00.760
<v Speaker 1>and in the coming months, um, over the summer, we

0:14:00.800 --> 0:14:05.320
<v Speaker 1>should get a response, uh from from the court showing

0:14:05.559 --> 0:14:08.840
<v Speaker 1>if they're able to use this government contractor defense um.

0:14:08.920 --> 0:14:11.520
<v Speaker 1>And even if even if they are, you know, it's

0:14:11.559 --> 0:14:14.920
<v Speaker 1>still there's a lot of sites where it doesn't evolve

0:14:14.960 --> 0:14:21.480
<v Speaker 1>military basest, civilian airports and things like exactly. Yeah. Uh, finally,

0:14:21.760 --> 0:14:24.280
<v Speaker 1>where are we heading here? And the reason why I

0:14:24.320 --> 0:14:29.200
<v Speaker 1>ask is because you know, DuPont still exists as a

0:14:29.320 --> 0:14:32.440
<v Speaker 1>going concern, but it is not the same company that

0:14:32.520 --> 0:14:34.600
<v Speaker 1>it was just ten years ago. I mean, it has

0:14:34.640 --> 0:14:38.360
<v Speaker 1>been merged and spun off and you know, not all

0:14:38.360 --> 0:14:40.320
<v Speaker 1>of that is because of these p fast liabilities, but

0:14:40.360 --> 0:14:42.720
<v Speaker 1>it did play a role. Are we going to see

0:14:42.720 --> 0:14:45.880
<v Speaker 1>that with every one of these companies that is a

0:14:45.920 --> 0:14:48.760
<v Speaker 1>defendant in these cases where they're gonna this is actually

0:14:48.840 --> 0:14:51.560
<v Speaker 1>going to like cause them to not exist as we

0:14:51.640 --> 0:14:55.600
<v Speaker 1>know them today, including three M which is a pretty

0:14:55.640 --> 0:15:00.160
<v Speaker 1>big company. Yes, I mean that, let's let's to be seen. Um,

0:15:00.200 --> 0:15:02.640
<v Speaker 1>I'm not sure if we'll see you know, any any

0:15:02.680 --> 0:15:07.360
<v Speaker 1>major foldings or anything like that, um anytime soon. But

0:15:07.400 --> 0:15:11.160
<v Speaker 1>it definitely is a major concern for for some companies,

0:15:11.160 --> 0:15:14.160
<v Speaker 1>some more than others. Uh And And there was a

0:15:14.240 --> 0:15:18.200
<v Speaker 1>quote in a story that included from a proceeding UH

0:15:18.240 --> 0:15:21.560
<v Speaker 1>in the md L back in nineteen where the judge

0:15:21.560 --> 0:15:25.000
<v Speaker 1>overseen all these cases essentially told the companies, you're facing

0:15:25.040 --> 0:15:27.440
<v Speaker 1>an existential threat. If one or two motions don't go

0:15:27.760 --> 0:15:30.120
<v Speaker 1>your way, this could be very bad for your business.

0:15:30.440 --> 0:15:32.240
<v Speaker 1>There could be a lot of liability on the line.

0:15:32.680 --> 0:15:36.840
<v Speaker 1>So to be seen, it's a it's a big question. Um,

0:15:36.880 --> 0:15:39.800
<v Speaker 1>I'm not I'm not quite sure. And of course, you

0:15:39.840 --> 0:15:43.680
<v Speaker 1>know three MS a massive company, and and so I

0:15:43.720 --> 0:15:46.520
<v Speaker 1>don't I don't think we'll be seeing them fold anytime soon.

0:15:46.800 --> 0:15:49.480
<v Speaker 1>But um, it definitely is a major concern for them.

0:15:49.680 --> 0:15:51.840
<v Speaker 1>It's it's taking up a lot of their and a

0:15:51.960 --> 0:15:55.920
<v Speaker 1>report listing all these liabilities. Uh, and it's something that

0:15:55.920 --> 0:15:59.520
<v Speaker 1>they're very they're very focused on. But to be seen,

0:15:59.640 --> 0:16:02.120
<v Speaker 1>we'll see. To be seen well, if and when we

0:16:02.160 --> 0:16:04.400
<v Speaker 1>do see that, we'll have Andrew Wallander back on the

0:16:04.440 --> 0:16:07.680
<v Speaker 1>podcast for now. That was Andrew Wallander speaking with me

0:16:07.720 --> 0:16:10.120
<v Speaker 1>about p Fast. Thank you so much, Thank you for

0:16:10.160 --> 0:16:13.840
<v Speaker 1>having me. Just great. And that's it for today's episode

0:16:13.880 --> 0:16:15.880
<v Speaker 1>of Parts per Billion. If you want more environmental news,

0:16:15.960 --> 0:16:17.880
<v Speaker 1>check us out on Twitter. We use it pretty easy

0:16:17.920 --> 0:16:21.200
<v Speaker 1>to remember handle is at environment just that at environment,

0:16:21.480 --> 0:16:24.120
<v Speaker 1>nothing else. Today's episode of Parts of Billion is produced

0:16:24.160 --> 0:16:26.800
<v Speaker 1>by myself, David Schultz. Partner Billing was created by Jessica

0:16:26.840 --> 0:16:29.280
<v Speaker 1>Combs and Rachel Dagle and is edited by Zach Sherwood

0:16:29.320 --> 0:16:32.920
<v Speaker 1>and Chuck McCutcheon. Our executive producer is Josh Block. Thanks

0:16:32.960 --> 0:16:37.400
<v Speaker 1>everyone for listening. Those nine justices in Washington that could

0:16:37.400 --> 0:16:39.440
<v Speaker 1>be pretty hard to keep track of. That's where we

0:16:39.520 --> 0:16:42.440
<v Speaker 1>come in. I'm Jordan Reuben and I'm Kimberly Robinson. On

0:16:42.480 --> 0:16:45.360
<v Speaker 1>our podcast Cases and Controversies. We give you a week

0:16:45.400 --> 0:16:48.800
<v Speaker 1>by week accounting of the Supreme Court, the filings, the arguments,

0:16:48.880 --> 0:16:51.800
<v Speaker 1>the opinions, and much much more so. Check in on

0:16:51.800 --> 0:16:54.800
<v Speaker 1>Fridays with cases and controversies to find out what's coming

0:16:54.880 --> 0:16:57.640
<v Speaker 1>up on the horizon at the Supreme Court. Download and

0:16:57.680 --> 0:17:00.320
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