The industrial conglomerate 3M started life as Minnesota Mining and Manufacturing in 1902. Since that time, the company has grown into one of the largest corporations in the world, currently ranked at #103 on the Fortune 500. Makers of Scotch tape and other widely used products, the company also has a long history of fighting and settling litigation alleging mass tort malfeasance. The list extends well beyond just dual-ended combat earplugs, the subject of an explosive, well-publicized ongoing multidistrict litigation effort.
This article is the third in a series of five that will examine 3M’s recent history as a defendant, its legacy of settlements and the strategies and tactics they use to fight mass tort claims against the company.
3M and DuPont are respectively the second and third largest chemical manufacturers listed in the 2021 edition of the Fortune 500. Each corporation arguably built its overwhelming success on a class of chemicals known as per- and polyfluoroalkyl substances, or PFAS for short.
Yet these days, they perhaps wish they did not. Both companies, along with peers in the chemicals industry, now face a wave of mass tort litigation related to alleged injuries and environmental harm caused by PFAS-based substances, which often are called “forever chemicals.” The mass tort actions have been presented both by traditional plaintiffs and state governments.
This development should factor heavily into the tort selection analyses of mass tort law firms not already involved in these matters.
What PFAS-Related Damages are Alleged?
According to the Center for Disease Control and Prevention, potential injuries caused by exposure to PFAS substances include:
- Cancer of the kidneys, testicles, and other organs
- Increased cholesterol
- Liver damage
- Low birth weights
- Developmental disabilities
- Pre-eclampsia in pregnant women
- Decreased effectiveness of vaccines in children
The alleged instances of exposure pleaded in these cases relate to the use of or proximity to the chemicals in workplace and military settings, the consumption of drinking water and fish, and contact with some household products. The CDC also reports that various studies over the past several decades have shown that extremely high levels of the chemicals were found in affected communities and in specific classes of workers. Other studies show that these blood-based statistics decreased sharply once water-filtration systems and other mitigation efforts took hold.
Where Does the Term “Forever Chemicals” Come from?
PFAS substances possess one common trait: They do not break down or self-destruct naturally, and if they do, scientists believe it may take at least hundreds of years for that process to occur. That is why they are becoming more widely known as “forever chemicals.”
Stories of “forever chemicals” use are now finding their way into mainstream media. While these PFAS compounds are commonly found in industrial products, it turns out consumer-product manufacturers use them, too, sometimes in everyday products.
News of PFAS use in makeup, as an example, was reported recently. A new study found that nearly nine in 10 cosmetics companies failed to report the use of the chemicals as required by the Food and Drug Administration. The study prompted the introduction of bipartisan legislation in Congress that aims to better regulate the cosmetics industry.
What Can You Tell me About the History of “Forever Chemicals?”
The first instance of a PFAS substance, often referred to as a “fluoropolymer” and used as surfactants, resulted from a happy lab accident by a DuPont scientist in 1938. That chemical became known as Teflon, the coating that makes pots and pans no-stick products.
3M committed to its own PFAS research in the years afterward. By the 1950s, the company had developed Scotchgard, used to protect the integrity of fabric upholstery, steel countertops, and other surfaces.
Those brands have long been household names, and PFAS compounds have since proliferated into the manufacturing of countless products distributed by different chemical companies and industrial manufacturers. A basic search of Google Patents for “fluoropolymers” retrieves more than 135,000 results. These products include aqueous film forming foam (AFFF), currently the subject of multidistrict litigation with 3M as one of numerous defendants in the District of South Carolina.
The new “makeup” research and apparent revelations may birth their own breed of MDL litigation. At the moment, however, 3M and other defendants are busy combatting, or settling with, multiple state governments and aggregated plaintiff populations who claim substantial damages. These litigants also allege that these companies knew about the damage their products could cause and concealed the information.
What Litigation and Settlements Can You Point to that Demonstrate What to Anticipate in These Cases?
Here is a rundown of some of the litigation that is either active or has reached settlement within the past five years:
In Re: Aqueous Film-Forming Foam Products Liability Litigation (D S.C.)
In this active MDL, the PFAS use under pre-trial discovery involves a variation that extinguishes liquid-triggered fires on military bases, factories and other locations. We previously discussed aqueous fire-fighting foam (AFFF) in Part 1 of this series.
AFFF was developed in concert by the U.S. navy and 3M in the 1960s. The litigation largely covers injuries and long-term medical conditions suffered by firefighters and military personnel. While the case’s docket is currently crawling, 3M is expected to eventually attempt to invoke the “government contractor defense,” which would protect it from liability and effectively shift blame onto the Navy. 3M and DuPont are among two dozen or so listed defendants.
In Re: E.I. DuPont de Nemours and Company C-8 Personal Injury Litigation (E.D. Ohio)
This high-profile MDL, which manages PFAS-related injury claims brought by plaintiffs in Ohio and West Virginia, has inspired three separate settlement actions by defendants DuPont, Chemours and Corteva since 2017 (as well as a Hollywood film, 2019’s “Dark Waters”). The first resulted in a master settlement agreement of $671 million. The second and third actions action happened almost simultaneously in January 2021. One, a $83 million agreement, related directly to the MDL. The other was a commitment by the three defendants to address and fund future PFAS litigation claims, either to the tune of $4 billion or payouts over a stretch of 20 years, whichever occurs first. This agreement and recognition of the firm classes of PFAS litigants suggests the chemicals industry sees a long, potentially permanent wave of “forever chemicals” causes of action.
State of Minnesota v. 3M Co.
3M and Minnesota’s government reached an $850 settlement on this state action in 2018. The State Attorney’s General filed its complaint against the company in 2010. The case was a forerunner to recent efforts by other states to find 3M and its peers liable for PFAS-related damages. In the complaint, the state alleged that PFAS compounds produced in 3M facilities had polluted drinking water sources in and around Minneapolis and St. Paul. Minnesota plans to use $720 million of the settlement funds to assist state environmental agencies in efforts to clean up pollution caused by the chemicals and to manage prevention and mitigation projects.
Multiple State Actions Filed by Michigan
Michigan Attorney General Dana Nessel has targeted PFAS makers and distributers aggressively in recent months, filing two separate lawsuits within the past year. The first was filed in Lansing in August 2020 and seeks redress for environmental harm. The second was filed this past January in Ann Arbor and focuses on AFFF claims. More than 30 defendants are named across the two lawsuits, many of whom are also listed on the right side of the “v.” in the AFFF MDL.
One All-Encompassing State Action in Alaska
Unlike his counterpart in Michigan, Alaska Attorney General Treg Taylor packed all of his state’s claims against a similar set of nearly three dozen PFAS defendants into a single suit, filed this past April. It is a unique hybrid matter that could shed light on how other states choose to proceed with PFAS litigation, assuming they do.
What Does the Growth of “Forever Chemicals” Cases Mean for You as A Mass Torts Professional?
Toxic tort practice is a multi-discipline class of the mass tort world. It requires evaluation, analysis and discovery practice that addresses not only personal injuries but also to injuries to communities or specific groups of workers as a whole. You may feel like a public policy analyst as much as a legal professional as you wind through your case management.
The growing attention paid to PFAS substances and the resultant swell of new litigation could result in presenting you with an opportunity to develop a toxic-tort-specific skill set on a grand scale. Be prepared.
Written by Christopher O’Connor
About the Author
Christopher O’Connor, Esq., is a licensed attorney (N.Y.) and a longtime journalist. His areas of focus include mass tort practice, employment law, enterprise technology, mental and spiritual health, and law practice management. He also possesses CIPP/US certification as a privacy professional.
O’Connor lives just outside of Houston, TX, and enjoys hiking, podcasting, and cooking for his wife.