Years of legal bills before chance to defend self: ‘Just the way’ U.S. legal system is, PFAS judge says

By John O’Brien

CHARLESTON, S.C. (Legal Newsline) – It’s just a fact of life that companies can get tangled up in expensive litigation that goes on for years before they can start defending themselves.

That’s the opinion expressed at an Aug. 7 hearing by South Carolina federal judge Richard Gergel, who showed his unwillingness to grant motions to dismiss in the multidistrict litigation concerning chemicals known as PFAS. The MDL was formed 20 months ago but defendants have not been able to attack the claims made by plaintiffs yet.

Hundreds of cases are consolidated in the MDL over water pollution claims while the debate continues on what the toxicity levels of PFAS chemicals are and as private lawyers continue to shoot for big government clients.

The companies facing these lawsuits wouldn’t be named as defendants if there weren’t good reasons for it, Gergel feels, adding he has to view the allegations in the light most favorable to the plaintiffs.

“(T)hese guys on the plaintiff’s side are talented lawyers,” Gergel said as one company made its argument that it shouldn’t be named as a defendant in these cases.

“I would be – you know, I would think that the chances that they’re going to leave it in a way that there’s no basis for liability would, you know – I’m just – I haven’t seen it. I’m just going to suggest that that’s a – that can be a tall order for a defendant at a motion to dismiss stage.”

In December 2018, PFAS cases were consolidated before Gergel, a President Barack Obama-appointee who spent decades representing plaintiffs in personal injury cases at his firm Gergel, Nickles & Solomon in Columbia.

Twenty months later, the only motion to dismiss was filed jointly by plaintiffs lawyers and BASF Corp. as a procedural move to finalize a tolling agreement with the plaintiffs firm Napoli Shkolnik. This is in contrast to other high-profile MDLs in which companies began their defense in about six months like the opioid MDL and the Deepwater Horizon oil spill MDL.

Four months after the PFAS MDL was created, Gergel denied all motions to dismiss in cases that were transferred to him without prejudice. Since then, a new briefing schedule has not been determined.

“(I)f there’s something very discrete to Angus and National Foam, that just as a – on the, you know – facially on the pleading itself there is no basis for liability, then, you know, fine, I’ll address it,” Gergel told a lawyer for a defendant who feels it has been unfairly brought into the MDL.

“But you’ve got to know that, you know, surviving a motion to dismiss is not heavy lifting… If you think that the allegations are untrue, then, you know, the – a motion to dismiss is not where we address those issues. If there’s a contest as to the truthfulness of something, we do that by summary judgment.

“So I can understand your company’s lack of enthusiasm about being dragged into this case. But, you know, I can just say to you it’s going to be a fairly narrow set of circumstances that gets you out at a motion to dismiss stage. And that’s generally true in all litigation.”

Later, he told the lawyer he sympathized with how his client felt but “that’s just the way it is” in America’s civil courts.

“You feel like you don’t have any liability. You’re being brought into this case. There can be a lot of expense associated with it,” Gergel said.

“And when you’ve finally got the point of proving that you – there’s no basis for it, you’ve already been in it a good bit. That’s like, pretty common in federal – in, you know, civil litigation in the United States. That’s just the way it is.”

In the meantime, several companies continue to respond to discovery requests from some of the nation’s most powerful plaintiffs firms – Motley Rice, Douglas and London, Napoli Shkolnik and Baron and Budd.

More than 1.4 million documents have been turned over by the defendants, who include 3M, DuPont, Tyco Fire Products, Kidde-Fenwal and National Foam.

PFAS are chemicals that were used in firefighting foam, non-stick cookware and waterproof clothing, among other products, and are in the bloodstreams of nearly every American.

Whether they cause health problems at their current levels is yet to be decided, but it is still a favorite cause of Democrats in state leadership and Congress alike.

In Congress, Democrats last year tried to push through a measure that would have expanded liability to countless businesses but were turned back by Senate Republicans. Some state regulators have passed their own maximum contaminant levels much lower than a federal government advisory and hired private lawyers to file lawsuits.

PFAS are found in firefighting foam used on military sites, leading to the question of what role in the liability scheme the federal government will take.

Plaintiffs lawyers said information from NAVSEA was slow to come in because of the fire at the U.S.S. Bonhomme Richard – a four-day blaze eventually put out by PFAS-containing firefighting foam.