Per- and polyfluoroalkyl substances, commonly referred to as “PFAS,” have become one of the fastest-growing drivers of toxic tort litigation nationwide. As federal and state regulators continue to tighten standards governing these chemicals, businesses across various industries face an increasing number of lawsuits involving alleged environmental contamination, personal injury, product liability, property damage, and cost recovery claims. Understanding the evolving PFAS litigation landscape is essential for businesses seeking to evaluate potential exposure and develop effective defense strategies.
Companies at Increased Risk of PFAS Litigation
Several developments have contributed to the rapid expansion of PFAS lawsuits. Federal agencies have adopted more stringent standards, including drinking water limits for certain PFAS compounds. Similarly, many states have implemented their own regulations governing groundwater contamination, cleanup obligations, and product restrictions. As environmental detection has become more widespread and public awareness has encouraged litigation seeking compensation for investigation costs, remediation expenses, diminished property values, and alleged health effects, businesses across a broad range of industries face increased exposure.
Common types of businesses at increased risk of PFAS litigation can include:
- Chemical manufacturing and processing companies
- Paper, packaging, and food packaging manufacturers that use grease-resistant treatments
- Textile, carpet, and upholstery manufacturers that use stain-resistant coatings
- Waste management companies
- Military contractors and defense-related businesses
- Automotive and aerospace manufacturers
- Manufacturers of firefighting equipment
- Landfill owners and operators
- Airports and airport operators where aqueous film-forming foam has been used
- Metal plating and finishing facilities
- Oil and gas companies
- Successor companies that acquired businesses with historical PFAS liability
Importantly, PFAS litigation can extend well beyond the companies that originally manufactured the chemicals. Businesses that manufactured, distributed, used, stored, transported, or disposed of PFAS-containing materials (as well as operators of industrial facilities and commercial properties where PFAS were allegedly released) can all potentially face liability.
Common Types of PFAS Claims
PFAS-related lawsuits can arise in a variety of contexts, depending on the alleged source of contamination, the parties involved, and the damages claimed. These cases frequently turn on nuanced questions of causation, exposure attribution, and allocation among potentially responsible parties. Some of the most common types of PFAS litigation include:
- Personal injury claims
- Property damage claims
- Product liability claims
- Public and private nuisance claims
- Consumer protection claims
- Environmental contamination and remediation actions
- Contribution and indemnification disputes
While many PFAS lawsuits involve multiple legal theories that are asserted simultaneously, these cases can be particularly complex. Developing a coordinated defense strategy early can help companies effectively manage risk and protect their interests. It also allows businesses to preserve relevant evidence, evaluate potential insurance coverage, identify other potentially responsible parties, and engage technical experts before litigation progresses.
Defending Against PFAS Litigation
Defendants routinely challenge plaintiffs’ ability to establish both general and specific causation, particularly in cases where alleged exposures are based on broad environmental data rather than individualized proof. Exposure modeling and sampling methodologies are often key points to dispute, particularly in cases of diffuse or historical contamination, where multiple potential sources may be present. Defendants also frequently scrutinize whether plaintiffs’ experts rely on scientifically reliable data and whether their opinions satisfy applicable admissibility standards.
Notably, expert witnesses play a crucial role in PFAS litigation. A successful defense typically includes a multidisciplinary team that may include toxicologists, environmental engineers, hydrogeologists, chemists, industrial hygienists, epidemiologists, and medical professionals. These experts assist counsel in evaluating exposure pathways, contaminant migration, sampling protocols, dose calculations, and alleged adverse health effects.
Insurance and Risk Management Considerations
Since PFAS litigation can expose businesses to substantial defense costs, cleanup expenses, and potential liability, insurance coverage and risk management are key considerations from the outset. Depending on the allegations and policy language at issue, businesses may have coverage under commercial general liability (CGL), environmental liability, excess, or umbrella insurance policies. Coverage disputes frequently arise during the course of PFAS litigation.
Businesses should carefully review both current and historical insurance policies to identify potentially available coverage. Early coordination with counsel can help evaluate potential disputes involving pollution exclusions, trigger of coverage, allocation among policy periods, and an insurer’s duty to defend or indemnify.
But beyond insurance coverage, companies should also be sure to assess contractual indemnification provisions, vendor and supplier agreements, environmental compliance programs, and documentation retention practices to ensure all available risk-transfer mechanisms are identified and preserved. Taking these proactive steps may help safeguard valuable rights and strengthen the company’s overall PFAS litigation strategy.
Contact an Experienced Toxic Tort Defense Attorney
If your business is facing PFAS litigation, it’s essential to have experienced counsel by your side who can assess potential exposure, develop a strategic defense, and navigate the complex scientific and regulatory issues involved. With a commitment to delivering practical, results-driven solutions tailored to complex toxic tort litigation, Cosmich prioritizes a client-centered approach in every case. With offices across the country, our attorneys are equipped to handle multi-jurisdictional matters involving numerous claimants. Contact us to schedule a consultation to learn more about our capabilities.