Forever Chemicals and the Next Wave of Environmental Cancer
Are We Replaying the Asbestos Story with Forever Chemicals?
A prominent corporate defense lawyer recently warned a group of plastics industry executives that they should circle the wagons and prepare for a wave of litigation that will “dwarf anything related to asbestos.”
Per- and polyfluoroalkyl substances (PFAS), the “forever chemicals” that have emerged as one of the major pollution issues of our time. Used for decades in countless everyday objects, including cosmetics, takeout containers, and frying pans, PFAS have been linked to serious health risks including cancer. Last month the federal government said several types of PFAS must be removed from the drinking water of hundreds of millions of Americans.
“Do what you can, while you can, before you get sued,” attorney Brian Gross urged executives at a recent meeting. “Review any marketing materials or other communications that you’ve had with your customers, with your suppliers, see whether there’s anything in those documents that’s problematic to your defense,” he said. “Weed out people and find the right witness to represent your company.”
A wide swath of the chemicals, plastics and related industries are gearing up to fight a surge in litigation related to PFAS, or per- and polyfluoroalkyl substances, a class of nearly 15,000 versatile synthetic chemicals linked to serious health problems.
PFAS chemicals have been detected almost everywhere scientists have looked: in drinking water, in rain falling over the Great Lakes, even in Antarctic snow. They are thought to be present in the blood of nearly every American. Researchers have linked exposure to PFAS to testicular and kidney cancers, developmental delays in children, decreased fertility, liver damage and thyroid disease. The man-made chemicals are so long-lasting that scientists haven’t been able to reliably identify how long it might take for them to break down.
Court actions have already been filed. PFAS-related lawsuits have already targeted manufacturers in the United States, including DuPont, its spinoff Chemours, and 3M. Last year, 3M agreed to pay at least $10 billion to water utilities across the United States that had sought compensation for cleanup costs. Furthermore, thirty state attorneys general have also sued PFAS manufacturers, accusing the manufacturers of widespread contamination.
Asbestos and PFAS
Defense lawyers are gearing up for PFAS litigation, as environmental protection lawyers make similar preparations. As outlined below, significant legal differences exist between forever chemical litigation and asbestos litigation. However, in other ways, the two substances have some similarities.
Bioaccumulation is usually an issue in toxic exposure matters. The body cannot adequately dispose of toxic particles, like asbestos fibers or PFAS chemicals. So, these toxic particles build up and cause various health problems.
Asbestos exposure is the near-exclusive cause of mesothelioma, a rare and aggressive form of heart-lung cancer that’s probably the worst asbestos-related health problem. Since it’s so rare and so aggressive, it’s very hard to treat. Other asbestos-related health issues include asbestosis, a lung disease, and various kinds of abdominal cancer, such as cervical cancer.
Cancers Linked to Forever Chemicals
Scientists have linked PFAS to kidney cancer. This disease isn’t quite as aggressive as mesothelioma, but it’s close. Other PFAS health effects include reproductive issues, such as preeclampsia (maternal high blood pressure), along with higher cholesterol levels and reduced ability to fight infections.
Additionally, PFAS and asbestos both include direct and indirect exposure victims. PFAS creates a barrier between two substances, making it a common ingredient in fast-food wrappings, firefighting foam, Stainmaster carpet, nonstick cookware, and many other products. Other times, PFAS is a manufacuting byproduct. Likewise, asbestos exposure victims include people who worked with this substance (occupational exposure) and environmental (ambient) exposure victims, such as people who were in New York City on 9/11 and were affected by toxic smoke.
The differences between these two substances, which partly account for the litigation differences, include the nature of the substance, the location of the substance, and relevant environmental regulations.
Distinctions Between Asbestos and PFAs
PFAS is an artificial chemical and asbestos is a natural mineral. PFAS is a common ingredient in many consumer products, as mentioned above. Asbestos, on the other hand, is usually an industrial product.
As for environmental regulations, the EPA did almost nothing about PFAS until April 2024. Various asbestos bans have been in effect since the 1970s.680
Litigation Options
Asbestos litigation is very well-developed, giving victims a number of legal options. PFAS victims have limited options, at least for now..
Once the decades-long asbestos cover-up finally began unraveling, asbestos litigation began in the 1960s. Over the years, several litigation paths (which vary slightly in different states) have developed, such as:
Bankruptcy VCF: In the 1970s and 1980s, many asbestos providers declared bankruptcy, so they wouldn’t have to face the music in court. Federal judges allowed these bankruptcies, if the companies set up large victim compensation funds. Today, exposure victims still have access to these funds, which contain some $30 billion.
Social Security Disability: Much like VCF claimants, SSD applicants must prove that asbestos exposure caused their disabling illnesses. The exposure source doesn’t matter. SSD benefits, which are available to victims and some survivors, include monthly cash and automatic Medicaid membership.
VA DIsability/Workers’ Compensation: We’ll put these two options together because they’re very similar in many ways. VA disability applicants must prove their asbestos exposure was service related. Workers’ compensation applicants must prove their asbestos exposure was work related. In both cases, available benefits include lost wage replacement and, perhaps more importantly, medical bill payment.
Civil Claim: An asbestos exposure lawyer typically files a civil claim if possible. Usually, the plaintiff alleges that the defendant failed to warn people about possible side-effects. Sometimes, the civil action claims that the defendant’s defective product caused illness. In both cases, damages usually include compensatory damages for out-of-pocket losses and substantial punitive damages.
Generally, all these claims settle out of court. A defendant can tie a court verdict up in appeals courts for years, but an out-of-court settlement is a final resolution.
Eventually, the first three options may be available to PFAS exposure victims. SSD, workers’ compensation, and VA disability are now available on a limited basis. However, most victims are limited to civil claims.
The aforementioned negligence and defective product claims are usually available. Additionally, in cases of this magnitude, lawyers often file public nuisance claims. These legal actions, which are quite complex, basically claim the defendant created a hazard that affected many people and didn’t do anything to address that hazard.