By Johanna Adashek
As early as the 1970s, the companies that manufacture and sell PFAS have known that their chemicals were apparent in human blood, at levels far higher than what was safe. Before the public was aware of the threat that PFAS posed to public health and safety, a farmer in West Virginia, Wilbur Earl Tennant, witnessed dozens of his cows die and was determined to find the cause. Tennant observed and recorded foamy discolored water spewing into his creek from a pipe connected to an industrial landfill. He also recorded self-officiated autopsies on his diseased cows that showed that the cows had been destroyed from the inside out. Tennant had attempted without success to find legal assistance in his town and from various government sources, including the state veterinarian. However, a neighbor’s friend, who had a grandson who worked as an environmental lawyer in a big firm in Ohio, led Tennant to Rob Bilott. For the next two decades, Bilott went head to head with the companies behind PFAS.
The landfill upstream from the Tennant’s farm was owned by DuPont, a chemical manufacturer. After seeing the tapes and listening to Tennant’s emphatic belief that something from the landfill was poisoning his cows, Bilott agreed to take the case, and, in 1999, filed suit in federal court in West Virginia alleging, among other things, common law tort negligence. Through discovery, Bilott was finally able to put a name to this mystery chemical poisoning Tennant’s cows: PFOA (also referred to in different discovery documents as APFO, C-8, and FC-143). During litigation, DuPont revealed that it purchased PFOA from 3M to make Teflon. Documents discovered during litigation confirmed that DuPont had known about potential health problems for decades, and did nothing.
- In 1962, a rat study found “‘cumulative liver, kidney, and pancreatic changes’” in young rats dosed with PFOA.
- In 1965, a study on beagles exposed to PFOA showed toxic liver damage.
- In 1978, DuPont tested PFOA on monkeys. Monkeys given the highest dose died within a month, and even those given the lowest doses showed signs of toxicity.
- In 1978, after testing workers’ blood, 3M and DuPont decided not to disclose under the Toxic Substances Control Act (TSCA) the presence of fluorine found in the workers’ blood.
- In 1979, DuPont was aware that PFOA was biopersistent, and in 1980, DuPont had documentation showing they knew that PFOA bioaccumulated in the body.
- In 1981, a 3M study on rats showed PFOA caused birth defects, specifically to the eyes, in unborn rats. Unlike before, 3M disclosed the study to EPA. DuPont, studying their workers, noticed that two of seven babies born recently had been born with eye defects. DuPont did not continue the study. Another rat study failed to show the same defects and 3M went back to EPA and relayed that the previous study was invalid.
- In 1983, documents demonstrated that DuPont was aware of a viable, potentially less toxic, alternative, TBSA, as well as methods for reusing PFOA; however, these were more expensive and DuPont chose to proceed with the status quo.
- In 1988, a two-year cancer study on rats linked testicular tumors to PFOA.
- In 1988, DuPont scientists set a Community Exposure Guideline for DuPont workers with safe limits for PFOA at 0.6 ppb, around the lowest they could detect at the time.
- Also in 1988, DuPont decided to move thousands of tons of PFOA contaminated sludge to an unlined landfill, the landfill upstream of the Tennant’s farm.[2] Shortly after, DuPont measured the PFOA leaching from the unlined landfill into the creek at levels as high as 1600 ppb. DuPont did not warn the Tennants or the public.
- In 1993, another rat study linked PFOA to testicular, pancreatic, and liver tumors.
- In 1999, another monkey study showed monkeys with low doses of PFOA dying within a few months or suffering so much that the researchers “sacrificed” them.
- Throughout this period and for decades more, DuPont maintained that PFOA demonstrated no known human health effects.
In 2001, the Tennants settled their case with DuPont, and about a month later, Bilott filed a class action lawsuit against DuPont on behalf of about 70,000 people living near the Parkersburg DuPont plant. The goal of this litigation was different from other types of class action lawsuits. The class sought medical monitoring, a new type of claim where DuPont would have to pay for medical monitoring and testing. In 2004, the class action lawsuit reached a preliminary settlement, including delivery of clean water to the affected class funded by DuPont, and the creation of a Science Panel, funded by DuPont, that would research PFOA’s effect on humans, specifically on the members of the class action lawsuit who, by the class’s definition, had a minimum of 0.05 ppb PFOA in their blood. Finally, class members with any diseases that the newly created Science Panel linked to PFOA would be able to bring lawsuits against DuPont for damages, including punitive damages.
While the science panel was deliberating, PFAS were finally getting necessary publicity. In the 2000s, the Environmental Working Group drafted articles on PFAS, states began setting their own guidelines for PFOA in water, and at one point, EPA announced that PFOA was potentially carcinogenic. Many more studies were released: a study at John Hopkins of 300 babies showed PFOA in 99% of umbilical cords. Finally, in 2011, the Science Panel revealed that it had found probable links between PFOA and six diseases: high cholesterol, preeclampsia, ulcerative colitis, thyroid disease, kidney cancer, and testicular cancer. With links to these six diseases, anyone in the class with at least one of the diseases could bring a personal injury lawsuit against DuPont. The cases conjoined into a Multidistrict Litigation (MDL). The plaintiffs in the MDL won continuously: first, $1.1 million in damages plus $500,000 for negligent infliction of emotional distress; second, $5.1 million in compensatory damages plus $500,000 in punitive damages; and third, $2.0 million in compensatory damages and $10.5 million in punitive damages. After continual losses, in 2017, DuPont settled the class action suit for $670.7 million for the 3,500 pending lawsuits and those that had already occurred.
Bilott’s perseverance is awe-inspiring; he continued moving forward despite the initial and persistent knowledge gap between the parties, multiple reports that favored the corporate chemical companies because of misinformation or withholding of information, and the stress of carrying the threat of a public health emergency on his shoulders. Undaunted, in 2018, Bilott filed a new lawsuit: a class action suit on behalf of the PFAS-contaminated American people against eight companies, with the goal of requiring a federal court to establish a scientific panel to research the PFAS chemicals in human blood and confirm the harm they cause. This would target multiple PFAS, including the GenX PFAS that companies started using when they were phasing out PFOA and PFOS. Like PFAS with their strong carbon-fluorine bonds, science, too, will persevere.
[1] This post is based on information conveyed in Rob Bilott’s Fedder Lecture at the University of Maryland Francis King Carey School of Law on November 18, 2022, and in Bilott’s book Exposure, published in 2019.
[2] Robert Bilott, Exposure 81 (2019). DuPont was able to dump the PFOA sludge as nonhazardous waste because PFOA was not regulated under TSCA. PFOA and PFOS were grandfathered into the Act and companies only had to report if a chemical presents “a ‘substantial risk of injury to health or the environment.’” Id. at 94. DuPont did not self-report.
Additional Sources
- Alejandro De La Garza, Dark Waters Tells the True Story of the Lawyer Who Took DuPont to Court and Won. But Rob Bilott’s Fight is Far from Over, Time (Nov. 25, 2019), https://time.com/5737451/dark-waters-true-story-rob-bilott/.
- Alex Ebert, Firefighter Wants Study–Not Money–in Fluorinated Chemicals Suit, Bloomberg Law (Oct. 9, 2018), https://news.bloomberglaw.com/.
- Carey Gillam, ‘A worldwide public health threat’: Rob Bilott on his 20-year fight against forever chemicals, Guardian (May 1, 2022), https://www.theguardian.com/environment/2022/may/01/pfas-forever-chemicals-rob-bilott-lawyer-interview.
- Nathaniel Rich, The Lawyer Who Became DuPont’s Worst Nightmare, N.Y. Times (Jan 6, 2016), https://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html.
- Marina Schauffler, The long road to recovering PFAS damages, Maine Monitor (Dec. 18, 2022), https://www.themainemonitor.org/the-long-road-to-recovering-pfas-damages/.
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