Speaker 1: Can one lawsuit bring down a fortune five hundred company.
Speaker 1: Sure it can if it's not just one lawsuit, but
Speaker 1: thousands combined into one. Today on Parts per Billion, we
Speaker 1: talked about where the litigation over p FAST is heading
Speaker 1: and whether the defendants will be able to survive this
Speaker 1: lawsuit del uge. Hello, and welcome back once again to
Speaker 1: Parts per Billion, the environmental podcast from Bloomberg Law. I'm
Speaker 1: your host David Schultz. Per and polyfloral alcohal substances, also
Speaker 1: known as p FASS, have affected countless lives, both the
Speaker 1: people who were exposed to them and the people who
Speaker 1: made them. These so called forever chemicals are some of
Speaker 1: the most durable and water resistant substances known to man. Unfortunately,
Speaker 1: as their nicknames suggests, they also almost never break down
Speaker 1: the environment, instead accumulating in the soil, in water, and
Speaker 1: in the human body. We hear at Bloomberg Law have
Speaker 1: been covering Fast for several years now, but a new
Speaker 1: story from our colleague Andrew Wallander indicates that this legal
Speaker 1: saga may have moved into a new chapter. Andrew looked
Speaker 1: at data on thousands of p FAST lawsuits, and he
Speaker 1: found that the scope of the plaintiffs targets is widening
Speaker 1: not just to the early p facet adopter DuPont, but
Speaker 1: also to other companies, including the chemicals a manufacturing giant
Speaker 1: three M. The playing field for all of these suits
Speaker 1: is something called multi district litigation or m d L,
Speaker 1: which is definitely not to be confused with a class
Speaker 1: action suit, very very different. I asked Andrew to explain
Speaker 1: to me how this is affecting the trajectory of all
Speaker 1: these lawsuits and also just exactly what multi district litigation
Speaker 1: actually is. Yeah, so it's a bit of a complicated topic,
Speaker 1: but essentially the goal is when you've got a number
Speaker 1: of lawsuits on the same topic, it's a process meant
Speaker 1: to standardize simplify it a bit. So if you've got
Speaker 1: two or more lawsuits on the same topic filed in
Speaker 1: at least two different federal courts, one of the parties
Speaker 1: in the lawsuits can move to centralize all those proceedings
Speaker 1: um in sort of one docket overseen by one judge
Speaker 1: in a single district, and that's meant to quicken up
Speaker 1: all the pre trial motions, the hearings, the discovery um
Speaker 1: and make it so that you don't have a bunch
Speaker 1: of different decisions being made by different courts on the
Speaker 1: same topic. Uh. And so you know, unlike class action
Speaker 1: lawsuits where everyone has the same injury, with multi district
Speaker 1: litigation cases, it's often, you know, the same thing that's
Speaker 1: causing an injury, but the injury to parties can be
Speaker 1: different and it can vary. Yeah. That's one thing that
Speaker 1: really confused me initially when I was covering this is
Speaker 1: that we're not talking about a class action here, which
Speaker 1: is lots of people suing one party over the same thing.
Speaker 1: This is lots of people suing a similar party over
Speaker 1: different things, but they're all related, and you know, all
Speaker 1: the suits are buying just for efficiency's sake. It's exactly exactly. So,
Speaker 1: you know, it makes sense, or at least it sounds
Speaker 1: like it makes sense. But there are some people who
Speaker 1: criticize this multi district litigation or mdls it's called. Can
Speaker 1: you talk a little bit about that, about some of
Speaker 1: the criticisms of it. Yeah, So some of the people
Speaker 1: I talked to, and especially those on the defendant side,
Speaker 1: brought up concerns that with multi district litigation, it encourages
Speaker 1: plaintiffs attorneys to file uh. And it attracts more lawsuits
Speaker 1: uh than otherwise would be filed uh and and and
Speaker 1: their criticisms were that where that you know, it's easy
Speaker 1: for these people to come in and join this multi
Speaker 1: district litigation when the discovery is already underway. A lot
Speaker 1: of the heavy lifting, the heavy leg work is is
Speaker 1: taking place already um. And so their criticism was that
Speaker 1: these people kind of come in and UM joined the
Speaker 1: lawsuit and try to get part of a settlement before
Speaker 1: one comes out. Whether that's true or not to be seen,
Speaker 1: but that's one of the criticisms. So it kind of
Speaker 1: lowers the bar for filing a suit. And you know,
Speaker 1: when you lower the bar, I guess you get some
Speaker 1: suits that maybe aren't with merit right. And that's that's
Speaker 1: the argument, is that that you know, there's not a
Speaker 1: high bar to bring some of these cases and and
Speaker 1: you can directly file into an MDL as well. UM.
Speaker 1: Of course, as the case goes on, some of those
Speaker 1: cases will be weeded out and and and dismissed or
Speaker 1: transferred out of the MDL. So let's talk about the
Speaker 1: the MDL for p Fast or should I say the
Speaker 1: latest one, because we've already had to here's the third. Uh.
Speaker 1: It's very confusing, as p F as always is. Can
Speaker 1: you sort through, um, how this one is different from
Speaker 1: the other two? Yeah? Absolutely, So the other two we
Speaker 1: had one in the mid to late two thousand's. UM.
Speaker 1: That one was only a few dozen cases, not very big.
Speaker 1: It focused on teflon uh. And so that was primarily
Speaker 1: against DuPonts uh and the tents around or So uh.
Speaker 1: And and for the years after that, there was a
Speaker 1: number of lawsuits filed over pollution from a plant in
Speaker 1: West Virginia, UM, also against DuPont. And that was one
Speaker 1: specific site. That was one specific site exactly. UM. And
Speaker 1: so now a different company, more zones that plant. UM.
Speaker 1: But you're you're probably familiar with it. UM. There are
Speaker 1: a number of movies that came about from from that case,
Speaker 1: Dark Waters, The Devil we know Star Dark Water starring
Speaker 1: Mark Ruffalo Yep, yep, exactly. Uh. And by the way, uh,
Speaker 1: the man that Mark Ruffalo played uh in that movie,
Speaker 1: Rob a Lot, was a former guest on this very podcast.
Speaker 1: Fantastic Just to brag a little bit. UM. But I
Speaker 1: get the sense that you know, for the third md L,
Speaker 1: which is the one that we're talking about here. It's
Speaker 1: not just one site, it's not just one location. This
Speaker 1: is way bigger and exactly exactly so, so this multi
Speaker 1: district litigation case is focused on a type of firefighting
Speaker 1: foam called aqueous film forming foam or a triple uh.
Speaker 1: And so it is a much bigger case because it
Speaker 1: involves a number of companies. It's not just DuPont that's
Speaker 1: being sued. It's it's three m keim Guard, all these
Speaker 1: different other companies. Uh, anyone that made p fast that
Speaker 1: went into products or that um produced the secondary products,
Speaker 1: actually made the foam or sold the phone, they're being
Speaker 1: sued as well. So there's a lot more parties involved.
Speaker 1: The scope is much wider. This is of course nationwide
Speaker 1: because uh, for years the military has required a triple
Speaker 1: left to be used at military bases and airports as well.
Speaker 1: They are they follow mill spec uh, and so they
Speaker 1: have to have a triplet at airports Mill spec. That's uh,
Speaker 1: you know, the the specifications that you know, stuff that
Speaker 1: the military uses has to meet exactly to put it
Speaker 1: sort of in our fully um and you know we
Speaker 1: should talk about you know, this key fast is of
Speaker 1: course not good for the environment, not good for human health.
Speaker 1: But you know, it's worth repeating that this is some
Speaker 1: of the only stuff that can put out fires on
Speaker 1: air force bass on airports in a safe way. I mean,
Speaker 1: this is this is this is vital stuff that can't
Speaker 1: be substituted. Yeah, absolutely so, I mean, and that that's
Speaker 1: why this has been used so widely and been required
Speaker 1: by the military. Is is um. This type of foam
Speaker 1: is used for liquid fuel fires that are fueled by
Speaker 1: by oil gas and those fires get so hot that
Speaker 1: water is ineffective. It just evaporates before it can have
Speaker 1: an effect. Um. And so this this foam also it
Speaker 1: will cover a fire, it will deulse it um suffocated
Speaker 1: essentially with with this foam. And it's because of the
Speaker 1: fast and the way that it's so um durable, it
Speaker 1: doesn't it doesn't break down easily, uh, that it's able
Speaker 1: to have this effect. But oh yeah, So there's been
Speaker 1: work under way to figure out other other ways to
Speaker 1: fight these fires, not using p FAST, and there's some
Speaker 1: substitutes that are being looked at now, but for the moment,
Speaker 1: p fast has still been widely used. So for your story,
Speaker 1: you did some you know, real data diving, and you
Speaker 1: looked into the thousands and I mean thousands of p
Speaker 1: FAST lawsuits that have been filed thus far. And it
Speaker 1: sounds like one of the conclusions that you found is that,
Speaker 1: you know, initially almost all of the suits were against
Speaker 1: DuPont and most of them were related to that site
Speaker 1: that we talked about in West Virginia. Not the case anymore.
Speaker 1: It sounds like three M is now a major player
Speaker 1: and it's getting sued a lot more. Tell me about
Speaker 1: this data, how you collected it, and what it means. Yeah,
Speaker 1: so this this story came about with just the simple
Speaker 1: question of looking at liability with p fast. Who bears
Speaker 1: the most liability right now for for contamination And so
Speaker 1: we decided to get into that by looking at lawsuits.
Speaker 1: And so we went and we used our Boomberg Law
Speaker 1: platform uh to to do a few targeted searches to
Speaker 1: find cases that mentioned p Fast that we're dealing with
Speaker 1: with p Fast and then also looking at those three
Speaker 1: md ls we mentioned, um those multi district litigation cases.
Speaker 1: UH there's a list of you know, lawsuits that are
Speaker 1: member cases that are attached to that, so we're able
Speaker 1: to grab those as well. UM put all the cases
Speaker 1: we found into a database uh, standardized some of the names. Uh,
Speaker 1: you duplicated some of the entries. UH, and then analyzed,
Speaker 1: you know, the trends over time and and what was
Speaker 1: happening with these lawsuits. Uh. And yet, like you mentioned,
Speaker 1: it was very much so do POMP being sued early on. Uh.
Speaker 1: They were sort of the go to target for p
Speaker 1: fast litigation. And UH. Now with this this new wave
Speaker 1: that we're seeing of litigation over p fast, UH, there's
Speaker 1: a lot more parody and who's being sued. It's not
Speaker 1: just DuPont Um, but Uh, yes, three M is is
Speaker 1: certainly one of the most talked about defendants. UM. A
Speaker 1: number of the people I spoke to UM shared that
Speaker 1: they did at all. They made all the different UM
Speaker 1: components of of they made p fast, but then they
Speaker 1: also made the finished products that P fast went into
Speaker 1: and sold it and UM, so they have a lot
Speaker 1: of liability. And also one of the interesting things I
Speaker 1: learned reporting on this too is one of the allegations
Speaker 1: in the lawsuit, or in the lawsuits that are being filed,
Speaker 1: is that three M made a specific type of p
Speaker 1: fast p f os and they were the only ones
Speaker 1: who made that type of p fast And so the
Speaker 1: argument in the in the lawsuit is is that you
Speaker 1: can pinpoint where three M products specifically have polluted certain sites. Um,
Speaker 1: and you can say, oh, if that that p FOS,
Speaker 1: that p FOSS is there, you know it was three M.
Speaker 1: It's like it's like a chemical signature, exactly, like a
Speaker 1: chemical signature, UM, three M. For their party, they said
Speaker 1: that that's not true that others also made this type
Speaker 1: of p fas. But that's that's one of the things
Speaker 1: that's been looked at in lawsuit. Well let's talk let's
Speaker 1: get it a little bit more into the defense here. Um.
Speaker 1: You know, it sounds like one of the main defenses
Speaker 1: that the defendants are putting forth is, like you said, Millspeck,
Speaker 1: that essentially they made these products for the military, for
Speaker 1: the government, and there's something called the government contractor defense,
Speaker 1: which states that more or less, if you make a
Speaker 1: product for the government or for the military, you are
Speaker 1: immune from most product liability lawsuits resulting from that product.
Speaker 1: Do I have that right? And if so, is that
Speaker 1: a defense that could win the day for for three
Speaker 1: M DuPont in these other Yeah. Yeah, So the companies
Speaker 1: are are putting out this this government contractor defense and
Speaker 1: and that's that's a defense that was recognized in the
Speaker 1: late eighties by the Supreme Court UH in a in
Speaker 1: a separate case. And UH, basically, like you said, it
Speaker 1: says that companies can't be held to state's product liability
Speaker 1: laws if they made products provided them to the military
Speaker 1: and they were to military specification. And so UH, there's
Speaker 1: basically three prons to that defense that have to be
Speaker 1: met for it to be used. And one being that
Speaker 1: the the government specified, uh, what a product needs to
Speaker 1: look like. Sounds like that applies here, it sounds yep, yep.
Speaker 1: And then um, second, the product actually has to conform
Speaker 1: to those specifications that companies making sure. And then third,
Speaker 1: and this is kind of the big one that's really
Speaker 1: being looked at, um now with with p fas, is
Speaker 1: that the companies had to warn the government about any
Speaker 1: dangers with the products that they knew of that the
Speaker 1: government did not know of. Yeah, So that that's that's
Speaker 1: that's what a lot of the UH pre trail stuff
Speaker 1: is focusing on right now is looking at did the
Speaker 1: company's warn the government about all the dangers with p
Speaker 1: fas before this mill spec a triple F came about. Uh,
Speaker 1: And you know, some of the reporting that's been done
Speaker 1: previously has shown that DuPont three M had internal studies
Speaker 1: going back to the to the sixties showing that they
Speaker 1: knew that p FAS was harmful to human health and
Speaker 1: mom lasting in the environment. But I guess you know,
Speaker 1: even if they knew, did they tell the government? Did
Speaker 1: they tell the military that that this could be a problem? Exactly? Yeah,
Speaker 1: that's fascinating, yep. So there's lots of discovery going on
Speaker 1: right now. There's millions of documents being produced in this
Speaker 1: this multi district litigation case. Uh, lots to sort through,
Speaker 1: and in the coming months, um, over the summer, we
Speaker 1: should get a response, uh from from the court showing
Speaker 1: if they're able to use this government contractor defense um.
Speaker 1: And even if even if they are, you know, it's
Speaker 1: still there's a lot of sites where it doesn't evolve
Speaker 1: military basest, civilian airports and things like exactly. Yeah. Uh, finally,
Speaker 1: where are we heading here? And the reason why I
Speaker 1: ask is because you know, DuPont still exists as a
Speaker 1: going concern, but it is not the same company that
Speaker 1: it was just ten years ago. I mean, it has
Speaker 1: been merged and spun off and you know, not all
Speaker 1: of that is because of these p fast liabilities, but
Speaker 1: it did play a role. Are we going to see
Speaker 1: that with every one of these companies that is a
Speaker 1: defendant in these cases where they're gonna this is actually
Speaker 1: going to like cause them to not exist as we
Speaker 1: know them today, including three M which is a pretty
Speaker 1: big company. Yes, I mean that, let's let's to be seen. Um,
Speaker 1: I'm not sure if we'll see you know, any any
Speaker 1: major foldings or anything like that, um anytime soon. But
Speaker 1: it definitely is a major concern for for some companies,
Speaker 1: some more than others. Uh And And there was a
Speaker 1: quote in a story that included from a proceeding UH
Speaker 1: in the md L back in nineteen where the judge
Speaker 1: overseen all these cases essentially told the companies, you're facing
Speaker 1: an existential threat. If one or two motions don't go
Speaker 1: your way, this could be very bad for your business.
Speaker 1: There could be a lot of liability on the line.
Speaker 1: So to be seen, it's a it's a big question. Um,
Speaker 1: I'm not I'm not quite sure. And of course, you
Speaker 1: know three MS a massive company, and and so I
Speaker 1: don't I don't think we'll be seeing them fold anytime soon.
Speaker 1: But um, it definitely is a major concern for them.
Speaker 1: It's it's taking up a lot of their and a
Speaker 1: report listing all these liabilities. Uh, and it's something that
Speaker 1: they're very they're very focused on. But to be seen,
Speaker 1: we'll see. To be seen well, if and when we
Speaker 1: do see that, we'll have Andrew Wallander back on the
Speaker 1: podcast for now. That was Andrew Wallander speaking with me
Speaker 1: about p Fast. Thank you so much, Thank you for
Speaker 1: having me. Just great. And that's it for today's episode
Speaker 1: of Parts per Billion. If you want more environmental news,
Speaker 1: check us out on Twitter. We use it pretty easy
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Speaker 1: nothing else. Today's episode of Parts of Billion is produced
Speaker 1: by myself, David Schultz. Partner Billing was created by Jessica
Speaker 1: Combs and Rachel Dagle and is edited by Zach Sherwood
Speaker 1: and Chuck McCutcheon. Our executive producer is Josh Block. Thanks
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