AUSTIN - Texas Attorney General Ken Paxton has hired private lawyers to push a new lawsuit against the makers of products that contain chemicals known as PFAS.
Paxton, through Kelley Drye and Lanier Law Firm, filed suit Dec. 11 in Johnson County District Court against 3M and DuPont, two companies frequently targeted in lawsuits over the group of chemicals. The Southeast Texas Record's request for a copy of the contract's terms is pending.
A multidistrict litigation in South Carolina federal court handles claims brought by public water systems to address the effects of alleged contamination. PFAS are dubbed "forever chemicals" because they persist in groundwater and human tissue for years. They are found in firefighting foam and consumer products.
The federal government has set a maximum contaminant level for PFAS, even as groups call the move premature. Much of the research regarding their effect on the human body is disputed, with the American Chemistry Council calling the EPA's regulation "rushed" and "unscientific."
Still, lawsuits sprung up. States hired contingency lawyers for contamination lawsuits and pushed through their own regulations while the EPA decided its MCL. 3M, DuPont, Tyco and BASF have reached settlements in South Carolina that will bring in massive fees for the private lawyers representing the water systems.
Paxton's cases is more akin to the consumer class actions that arose. He alleges false advertising in products under brand names like Teflon, Stainmaster and Scotchgard.
“These companies knew for decades that PFAS chemicals could cause serious harm to human health yet continued to advertise them as safe for household use around families and children,” said Attorney General Paxton.
“Texas is taking action to penalize these companies and hold them accountable for deceiving Texans into buying consumer products without vital information.”
Nantucket Nectars defeated a class action that said consumers wouldn't have bought the product had they known PFAS was present in the bottles, as did the maker of Simply Tropical juice drinks.
The Nantucket Nectars plaintiff failed to show the bottle he drank from contained PFAS, while the plaintiff in the Simply Tropical case said he was duped into buying the juice because it was marketed as all natural while containing PFAS.
Testing tripped that case up too, considering the plaintiff failed to connect testing on some bottles to the one he drank from.
Plaintiffs suing the Mediterranean food restaurant chain Cava Grill defeated its motion to dismiss but withdrew their claims. Companies nationwide like Burger King and McDonald's face PFAS class actions.
For instance, Ornua Foods faces suit for calling its Kerrygood butter sticks "pure" while the packaging contained PFAS.
Some of the existing science comes as a result of an effort by plaintiffs lawyers who took on DuPont over the release of PFOA, which is in the group of PFAS, around one of its plants near the Ohio River in West Virginia.
Personal injury lawyers and DuPont agreed to a plan that created a so-called “science panel” and had the company pay for the medical monitoring of residents around the plant. Medical monitoring is a controversial claim for relief on behalf of uninjured plaintiffs that would drive up the cost of a settlement and with it, the amount their lawyers could recover.
The majority of states don't allow such claims.
By 2012 and after studying more than 30,000 participants, the science panel said there was a probable link to six diseases.
The cases paid off for lawyers in 2017, when DuPont ponied up $671 million to settle 3,500 lawsuits.