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On August 26, 2022, the US Environmental Protection Agency (EPA) announced proposed rulemaking to designate two types of per- and poly-fluoroalkyl substances (PFAS) as “hazardous chemicals” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

PFAS are a class of man-made chemicals widely used as surfactants in industrial and consumer products, including but not limited to: firefighting foam, cosmetics, clothing, cookware, and carpeting. They are known for their bio-persistence, and, unlike most other chemicals, do not “break down” in the human body when consumed. The EPA’s proposal specifically applies to perfluorooctanoic acid (PFOA), and perfluorooctanessulfonic acid (PFOS), two of the most commonly used types of PFAS.

In the news release announcing the proposed rulemaking, the EPA states that its proposal “is based on significant evidence that PFOA and PFOS may present a substantial danger to human health or welfare or the environment.” The EPA goes on to claim: “PFOA and PFOS can accumulate and persist in the human body for long periods of time and evidence from laboratory and human epidemiology studies indicates that exposure to PFOA and/or PFOS may lead to cancer, reproductive, developmental, cardiovascular, liver, and immunological effects.”

While the language used by the EPA and other regulators strongly suggests to the public there is a medical consensus that PFAS exposure causes cancer and other adverse health effects, this is not the case. Despite the fact that PFAS have been widely and heavily used for decades in the United States, no epidemiological study to date has found a “causal effect”—versus an “association”—between PFAS exposure and cancer. A “causal effect,” in contrast to an “association,” is demonstrated where exposure to a particular substance shows a statistically significant increase in the number of certain health outcomes, such as cancer, as compared to what would be expected in a non-exposed population.

The EPA’s proposed designation of PFOA and PFOS as “hazardous substances” under CERCLA, if passed, is significant for a number of reasons. Companies who continue to manufacture and sell products containing PFOA or PFOS will be required to monitor and report releases of the chemical to the government, and will be regulated by the Department of Transportation under the Hazardous Materials Transportation Act.

Perhaps most significantly, designating both PFOA and PFOS as “hazardous” chemicals under CERCLA will lead to potentially limitless liability for some of the country’s biggest industries, including aviation, plastics, and oil. Under CERCLA, the Federal Government may order any party found responsible for contaminating land with a “hazardous” substance to pay for the costs of clean-up. The Federal government can—and more often than not does—cast a very wide net in assigning liability for the costs of remediating and/or removing hazardous substances from a designated site. For example, businesses or individuals may be apportioned liability under CERCLA simply for purchasing land known to be a source of prior contamination, for exercising “substantial control” over activities at the facility where the contamination occurred, or for transporting the hazardous substances. (Kaiser Aluminum & Chemical Corp. v. Catellus Development Corp.
Continue Reading EPA Takes First Step to Designate PFAS as Hazardous Chemical Under CERCLA

The National Academy of Sciences—a private, non-profit organization—recently issued a report regarding committee findings on the human health effects from exposure to per-fluoroalkyl and poly-fluoroalkyl substances (PFAS). PFAS are a class of over 12,000 man-made chemicals, commonly used in consumer and industrial products as a surfactant.

PFAS are also known as “forever chemicals” due to their bio-persistence. Due to their chemical structure, PFAS resist degradation over time due to the strength of the bond between their carbon and fluorine atoms. Further, even when their chemical structure is broken, they will re-assemble as PFAS. Largely for this reason, there has been growing concern in the regulatory and scientific community regarding human exposure to PFAS through drinking water and use of consumer products.

The academy’s report focused on seven (7) of the most commonly produced PFAS. The committee found that there was sufficient evidence of an association between PFAS exposure and decreased antibody response in adults and children, dyslipidemia in adults and children, decreased infant and fetal growth, and increased risk of kidney cancer in adults. The committee found only limited or suggestive evidence of an association between PFAS exposure and the following health effects: increased risk of breast cancer in adults, liver enzyme alterations in adults and children, increased risk of pregnancy-induced hypertension, increased risk of testicular cancer in adults, thyroid disease and dysfunction in adults, and increased risk of ulcerative colitis in adults. The committee found insufficient evidence to support any association between PFAS exposure and respiratory conditions, neurological effects, and any cancers other than kidney, breast and testicular cancer.

The committee findings are notable for a few reasons. First, the committee’s finding of a “limited” or weak association between PFAS exposure and certain types of cancer—such as breast cancer, and testicular cancer—undermines the studies on which many current personal injury suits against PFAS manufacturers and suppliers are premised. Second, although the committee found there was “sufficient evidence” of an “association” between PFAS exposure and certain health conditions, it stopped short of stating there was any “causal effect” between PFAS exposure and any adverse health conditions. A “causal effect,” in contrast to an “association,” is demonstrated where exposure to a particular substance shows a statistically significant increase in the number of certain health outcomes, such as cancer, as compared to what would be expected in a non-exposed population. Although PFAS has been widely (and heavily) used in the United States for decades, no scientific organization or study has yet established a “causal link” between PFAS and adverse health outcomes. Despite the absence of a medical consensus as to whether PFAS constitutes a health risk, the National Academy of Science’s report nonetheless recommends that those individuals with suspected high levels of PFAS in their blood due to occupational or environmental exposures undergo testing, which will in turn be used in support of ongoing class action litigation demanding medical monitoring for those with elevated levels of PFAS exposure.
Continue Reading The National Academy of Sciences Issues Report on PFAS Health Effects

The nationwide campaign against the production and use of perfluoroakyl and polyfluoroakyl-containing products continues in California, with the California assembly passing expansive legislation to ban the use of up to potentially 12,000 separate chemicals in cosmetics.

On May 26, 2022, the California State Assembly passed A.B. 2771. Introduced by assembly member Laura Friedman (D-Glendale), the bill seeks to amend the state’s health and safety code to include a complete ban of personal care products that contain intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS). If, as expected, some version of the proposed amendment is approved by the senate and governor and enacted into law, the proposed amendment would make the express finding that “PFAS have been linked by scientific, peer-reviewed research to severe health problems, including breast cancer and other cancers, hormone disruption, kidney and liver damage, thyroid disease, developmental harm, and immune system disruption.” It would also make the express finding that “PFAS chemicals have been found in a wide variety of cosmetics and personal care products, including foundation, mascara, lipstick, and various eye and face products.” (Proposed Amendment to California Health and Safety Code Section 108981.)

Friedman, along with many consumer rights advocates, praises the bill as “a critical step towards reducing unnecessary exposure.” The proposed bill is highly problematic, however, from the standpoint of the personal care/cosmetics industry, which represents several billion dollars per year in revenue in California alone. First and foremost, A.B. 2771 drastically expands the existing prohibition against the addition of PFAS into cosmetics, seeking to exclude the use of any “fluorinated organic chemicals containing at least one fully fluorinated carbon atom.” While appearing to be fairly tailored to a single class of chemicals, the EPA’s CompTox Chemicals Dashboard: Master List of PFAS Substances currently reports a total of 12,034 chemicals that fall under A.B. 2771’s description. It is currently unknown how the state will go about enforcing the expansive ban and what PFAS, if any, will take priority in their exclusion. It is further unknown what the precise boundaries of the terminology “intentionally added” will be applied.

At this point, the only thing that can be predicted with certainty is that civil litigation is bound to follow the passage of A.B. 2711 in California—most likely in the form of consumer class actions. For, although A.B. 2711 itself does not provide for civil penalties for violations of the proposed act, California’s Unfair Competition Law (Business & Professions Code Section 17200) permits private citizens to seek an injunction and financial restitution against any business for alleged “unlawful” acts. This broad language, combined with the Unfair Competition Law’s four-year statute of limitations, means that certification of a class of consumers for the purchase of PFAS containing cosmetics could theoretically encompass millions of individual plaintiffs. Restitution on a class-wide basis would require disgorgement of four years of profits for a single company. It is therefore of critical importance for companies to remain up-to-date as these developments continue in order to ensure they can adapt early and often to
Continue Reading California Takes Steps To Ban 12,000 Chemicals in Cosmetics; Cosmetic Companies Should Prepare for a Spike in Consumer Class Actions

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On July 12, 2013 an Alameda jury returned a defense verdict in the living mesothelioma asbestos case Richard Luros v. Amcord, Inc., Alameda Superior Court Number RG11600370. (Luros complaint pdf download).

The California defense asbestos bar had been watching the case with interest since it was filed in October 2011, as the Plaintiff, Dr. Richard Luros, had for many years prior to his mesothelioma diagnosis served as a medical expert witness in asbestos litigation for plaintiffs represented by the Brayton Purcell LLP law firm. The Brayton Purcell firm represented Plaintiff Luros at trial.

After a month long trial culminating in approximately two days of jury deliberations, the twelve person jury returned a verdict in favor of the remaining trial defendant, Union Carbide. The jury found that Dr. Luros had not been exposed to asbestos from a product associated with the remaining trial defendant, despite Plaintiff’s sworn testimony to that effect. (Luros jury verdict form pdf download). In other words, the case was ultimately won on the issue of credibility –the jury did not believe Dr. Luros’s testimony with respect to how he was exposed to asbestos and by whom he was exposed.

The defense verdict was due, in large part, to the investigation and evidence collected in the nearly two years that elapsed between the filing of the Complaint and the actual trial date (an unusually long amount of time for the defendants to prepare for trial in living mesothelioma cases, which are generally accorded an expedited trial date in California of 120 days). Specifically, the defense verdict appears to have turned on the credibility of the witnesses, and in particular, on the testimony of a number of independent percipient witnesses, which contradicted plaintiff’s testimony.

Of particular concern for defendants, and indicative of the uphill battle asbestos defendants face at trial, despite the “overwhelming” affirmative evidence presented by defendants which tended to demonstrate that Dr. Luros fabricated his testimony, when polled post verdict, five of the jurors – almost half the jury – admitted that their initial vote was in favor of Plaintiff.

Plaintiff’s Evidence in Luros

Plaintiff Dr. Richard Luros filed his Complaint for personal injuries, namely, mesothelioma, on October 18, 2011, against approximately 34 defendants. The named defendants were, for the most part, manufacturers of asbestos-containing joint compound and drywall products, insulation and drywall contractors, and the owners of various hospital premises where Plaintiff alleged asbestos exposure.

At his pre-trial deposition, plaintiff claimed he was exposed to respirable asbestos dust during his residency and through his work as a medical doctor at various hospitals in California. Specifically, plaintiff Luros testified that he worked in the presence of others who applied and sanded joint compound, and other asbestos containing construction products, while he made his rounds as a medical doctor treating patients in various hospitals where new construction and renovation work was performed. He alleged asbestos exposure at virtually every hospital where he worked.

Defendants’ Rebuttal Evidence in Luros

During the pre-trial discovery
Continue Reading Defense Verdict Obtained Via Independent Rebuttal Witnesses in Living Mesothelioma Case Brought by Medical Expert Dr. Richard Luros

The California Supreme Court recently resolved conflicting opinions from state appellate intermediary courts on the subject of whether, or under what circumstances, a plaintiff may sue a dissolved out of State corporation in California. In Greb v. Diamond International Company, 56 Cal. 4th 243 (2013) the Court held that dissolved foreign corporations are not subject to suit in California where a direct conflict exists between California Corporations Code Section 2010 (which permits Plaintiffs to sue dissolved corporations for an indefinite period of time), and the corporate survival laws of the dissolved company’s state of incorporation.  See, Greb v. Diamond International Company, 56 Cal. 4th 243 (2013). (pdf download )

Factual Background of Case

In December of 2008, Plaintiff Greb filed an asbestos-related personal injury complaint in San Francisco Superior Court. His Complaint named Diamond International Company, a Delaware Corporation that had filed for dissolution in July of 2005, but which still had funds remaining on its liability insurance policy.

Defendant Diamond International Company, a dissolved Delaware corporation, filed a demurrer to the Complaint on the ground that, under Delaware’s corporate survival law, the action was not permitted because it was initiated more than three years after the corporation was dissolved.  Plaintiffs opposed the demurrer, arguing that California Corporations Code 2010 took precedence over Delaware law, and citing prior appellate court decisions and choice-of-law analysis. (pdf download of North American Asbestos decision)

The trial sustained the demurrer without leave to amend. The Court of Appeal affirmed.

The Supreme Court’s Decision

On final appeal, published February 21, 2013, the California Supreme Court affirmed and held that California Corporations Code Section 2010 only applied to dissolved California Corporations, not to foreign corporations. Notably, the Supreme Court considered and expressly rejected Plaintiffs’ alternative argument that, because Defendant was qualified to and did in fact conduct a large portion of its business prior to dissolution in the State of California, that it was a quasi-California corporation subject to California corporate survival law. In rejecting  Plaintiffs argument the Court stated: “We discern in the statutes no evidence that the Legislature intended…to accomplish the dramatic result ascribed to it by Plaintiffs – essentially, imposing on all…foreign corporations that are qualified to undertake repeated and successive business in California, the burden of complying with all provisions of…[California’s corporation code]…subject to what would often be a difficult choice of law analysis with regard to each California statutory provision that conflicts with a provision governing the corporation in its state of formation. As defendant suggests, such a scheme would require foreign corporations to “follow a litany of requirements regarding various corporate activities that their home state already regulates, creating innumerable, treacherous conflicts of law that the corporation would find impossible to navigate.”

Although not expressly referenced in the opinion, the California Supreme Court issued its ruling in the Greb within weeks of a seemingly related Delaware Court of Chancery decision holding that, even when funds remain on a dissolved Delaware corporation’s insurance policy,
Continue Reading CALIFORNIA SUPREME COURT PUBLISHES ANOTHER OPINION LIMITING POOL OF DEFENDANTS AVAILABLE TO PLAINTIFFS IN CALIFORNIA ASBESTOS LITIGATION