The United States Court of Appeals for the Sixth Circuit, on December 5, upheld a verdict against DuPont awarding $40 million to a survivor of cancer who alleged that exposure to perfluorooctanoic acid (PFOA) caused him to develop testicular cancer twice. The decision came after the U.S. Environmental Protection Agency (EPA) proposed designating PFOA and perfluorooctanesulfonic acid (PFOS) hazardous substances in August.
Travis Abbott filed the lawsuit in 2017, alleging that his testicular cancer was the result of being exposed to PFOA in his drinking water. A 2020 jury verdict which was awarded to Abbott was upheld by the court, delivering legal justice, but fights over PFAS contamination are still being fought in courtrooms.
The EPA has proposed designating the per- and polyfluoroalkyl substances (PFAS) PFOA and PFOS hazardous substances, stating that this would increase transparency surrounding the release of these PFAS, force corporate polluters to clean up their pollution, improve understanding of the locations and extent of PFOS and PFOA contamination and help communities reduce or avoid contact with the chemicals.
Decision Notes DuPont Increased PFAS Discharges Despite Knowing PFAS May Cause Cancer
DuPont, according to the decision, started polluting the Ohio River, the air around its West Virginia plant, and landfills with “vast quantities” of PFOA in the 1950s. DuPont then, according to the decision, became aware in the 1960s that PFOA is toxic to animals, and became aware in the 1980s that PFOA is possibly carcinogenic in humans. The decision also states that DuPont knew by the late 1980s that PFOA persisted in human blood for years.
Despite knowing that PFOA persists in people for a long time and may cause cancer, according to the decision, DuPont “increased” their discharges of PFOA from 1984 to 2000. The decision states that DuPont was discharging PFOA “without limits” during this time period. The decision also states that DuPont increased PFOA discharges during this time period despite its PFOA supplier warning them about how to properly dispose of the chemical, as well as about the fact that a substitute was available.
The court’s decision to uphold the verdict serves as a powerful reminder to corporate America that it cannot get away with knowingly polluting our drinking water with carcinogens.
Revelations Lead To PFAS Lawsuits
The decision notes that a class action lawsuit was filed against DuPont after, by the early 2000s, evidence had shown that PFOA was causing diseases in those drinking water contaminated by the chemical. That lawsuit led to a settlement agreement where DuPont promised to treat polluted water and fund science in order to inform the public about the harms and dangers of PFOA exposure.
That science, according to the decision, ended up determining that PFOA was probably linked to testicular cancer, kidney cancer, ulcerative colitis, thyroid disease, pregnancy-induced hypertension and preeclampsia, and diagnosed high cholesterol.
A multidistrict litigation (MDL) followed that class action lawsuit, according to the decision, in which the first bellwether trial found the jury awarding the plaintiff $1.6 million in response to her claim that PFOA caused her kidney cancer. DuPont then settled the remainder of the bellwether trials.
In the first non-bellwether trial in the MDL, which went to trial in 2016, the plaintiff was awarded $2 million. DuPont then announced in February 2017 that they were settling the rest of the MDL cases.
Abbott, according to the decision, lived in and near Pomeroy, Ohio for 20 years, since he was a child, and was exposed to PFOA in drinking water the entire time. Abbott was diagnosed with testicular cancer at age 16, according to the decision, and had one testicle surgically removed as a result. Ten years later, according to the decision, Abbott had his other testicle removed after complaining of testicular pain, and was diagnosed with testicular cancer again. Abbott’s cancer had spread to his lymph nodes, which necessitated further surgery. Abbott, according to the decision, requires testosterone injections due to the removal of both testicles.
DuPont argued that the level of exposure to PFOA that Abbott experienced was unlikely to have been the cause of his cancer, but the jury in his lawsuit disagreed, finding that his cancer was likely caused by PFOA. The jury provided Abbott with the justice he deserved, ensuring that corporate America cannot get away with knowingly giving Americans cancer in the name of profit.
Decision Comes As DuPont, 3M, Others Are Being Sued Over PFAS By The State Of California
The Sixth Circuit’s decision came after the State of California filed a lawsuit against DuPont, 3M and other PFAS manufacturers in November. The lawsuit alleges that PFAS manufacturers knew or should have known that the chemicals were toxic and harmful to the environment and human health, yet still continued to manufacture the chemicals for decades. The lawsuit claims that 3M knew that PFAS were toxic as far back as the 1950s, and that DuPont knew that PFOA was toxic as far back as the 1960s.
The lawsuit claims that PFAS manufacturers knew that PFAS are toxic and persist in humans, yet “deliberately misled” the public and the government. The lawsuit alleges that PFAS manufacturers sold PFAS without oversight, warnings or safety testing, keeping them on the market well after learning about the harm that they can cause.
The lawsuit alleges that PFAS contribute to:
- Prostate, pancreas, breast, testicular, kidney and liver cancer
- Adverse pregnancy outcomes
- Liver diseases
- Reduced immune system responses
- Developmental effects, such as delayed puberty
- Reduced bone density in children
- Non-alcoholic fatty liver disease, or;
The lawsuit claims that PFAS are very resistant to degradation once they enter into the environment, and difficult for the human body to excrete and/or metabolize. The lawsuit claims that, because of this, PFAS are found “in the blood of nearly every Californian tested.”
The lawsuit alleges that PFAS manufacturers have created a “devastating public nuisance” of “truly staggering” scale.
The lawsuit asks the court to require PFAS manufacturers to investigate, treat, remove, clean up, remediate and otherwise mitigate contamination by PFAS in California.
PFAS Are Used To Make Teflon, Have Been Linked With Cancer
PFAS are used to make Teflon, and recent times have seen countless lawsuits allege that PFAS in AFFF firefighting foam, as well as PFAS at military bases such as Camp Lejeune and Fort Ord, have caused cancer in Americans.
Scientific evidence has been mounting for years that PFAS such as PFOA and PFOS are dangerous:
- A 1950 study done by 3M, a PFAS manufacturer, found that PFAS can accumulate in blood.
- A 1965 study found that PFAS caused liver damage and increased spleen size in rats.
- DuPont discovered in 1973 that no level of exposure to PFAS found in food packaging is safe.
- 3M stated in 1978 that PFOA and PFOS “should be regarded as toxic.”
- A 1983 study linked testicular cancer in rats with exposure to PFOA.
- 3M found tumors in a 1987 PFOA study involving animals.
- 3M found in 1989 that workers who were exposed to PFAS saw higher cancer rates.
- Studies done in 1998 and 2000 by 3M found that PFAS exposure leads to liver damage in animals.
- The C8 Science Panel found in 2012 that PFOA was probably linked with testicular and kidney cancer in humans.
- A 2022 study found that exposure to PFOS was linked with a higher risk of developing liver cancer.
- PFAS, according to the U.S. Department of Veterans Affairs, may be linked with kidney and testicular cancer.
- The CDC warns that PFAS may be linked with testicular or kidney cancer.
EPA Proposes Naming PFOA And PFOS ‘Hazardous Chemicals’
The EPA, in proposing that PFOA and PFOS be designated hazardous chemicals, notes that the chemicals persist and accumulate in human bodies for a long time, and that scientific evidence has indicated that exposure to the chemicals might lead to cancer, as well as immunological, liver, cardiovascular, developmental and reproductive effects.
If the designation is finalized, according to the EPA, it would require PFOS and PFOA releases to be reported, giving improved data to the EPA as well as giving the agency the option to necessitate cleanups and recover the costs of cleanup operations in order to encourage superior waste management and protect the health of the public.
Finalization of the designation would mandate that releases of the chemicals in the quantity of one pound or more over a period of 24 hours (this quantity may be changed in the future, according to the EPA) be reported to emergency response commissions, emergency planning committees and the National Response Center.
The designation, if finalized, would also, in some situations, allow the EPA to make corporate polluters pay for cleanup costs or conduct cleanup operations themselves. The finalized designation would also mandate that federal entities that sell or transfer property give notice about the disposal, release or storage of PFOS or PFOA on the property, as well as provide a covenant stating they have cleaned up any PFAS contamination or will clean it up in the future.
The EPA has stated that they are proposing the designation because PFOA and PFOS “may present substantial danger to public health.”
While the EPA issued health advisories in 2016 stating that negative health effects could occur after exposure to levels of the chemicals equal to or higher than 70 parts per trillion, the EPA stated that, based on new data, negative health effects may occur after exposure to much lower levels than that.
Opponents to the designation have expressed numerous concerns, arguing that:
- The EPA hasn’t provided enough facts to justify the designation
- The EPA hasn’t described all of the costs which the designation’s direct impacts would lead to
- The designation’s direct impacts would significantly economically burden many small entities
- The designation may lead to water treatment facilities, rather than polluters, having to pay for PFAS cleanup costs, leading to ratepayers bearing the burden in the end
- U.S. industries not involved in manufacturing or selling PFAS could end up being held economically liable for PFAS releases
- Farmers who do not pollute the environment with PFAS may end up being held responsible for the presence of the chemicals
- The designation could lead to safety issues in the aviation industry
- Fire departments may be held financially liable for PFAS pollution, jeopardizing the safety of the communities they serve
However, many have applauded the proposed designation, arguing that:
- The designation will protect public health and reduce pollution
- The designation will hold corporate polluters accountable for the damage they cause
- The designation will keep PFAS out of our soil, water and air
- The designation puts the interests of Americans over those of polluters
- PFAS contamination must be addressed because the chemicals are toxic, bioaccumulative and persistent, posing significant health risks to Americans
- The designation will make sure that polluters, rather than taxpayers, pay for the cleanup of PFAS
- The designation will allow us to better understand the impacts of PFAS contamination