America’s Lawyer E53: On today’s show, we’re going to take a deep dive into the ongoing litigation surrounding PFAS chemicals. Lawsuits are moving forward to hold the manufacturers of these toxic chemicals accountable, while the EPA continues to drag their feet on putting meaningful regulations in place to stop the poisoning of our country. That’s coming up, so don’t go anywhere – America’s Lawyer starts right now.

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*This transcript was generated by a third-party transcription software company, so please excuse any typos.

Farron Cousins: Hi, I’m Farron Cousins in for Mike Papantonio, and this is America’s Lawyer. On today’s show, we’re gonna take a deep dive into the ongoing litigation surrounding PFAS chemicals. Lawsuits are moving forward to hold the manufacturers of these toxic chemicals accountable, while the EPA continues to drag their feet on putting meaningful regulations in place to stop the poisoning of our country. That’s coming up. So don’t go anywhere. America’s Lawyer starts right now.

Lawsuits are moving forward against the manufacturers of PFAS chemicals, toxic compounds that can now be found in the bodies of about 98% of human beings, including those who have never even lived in contaminated areas. These newest lawsuits revolve around the use of these PFAS compounds in firefighting foam used on military bases where we’re seeing a sharp increase in diseases linked to exposure. Joining me to explain what’s happening is attorney Wes Bowden. So, Wes, let’s start with this issue. Obviously, Mike Papantonio and I many, many times have talked about these PFAS chemicals here on America’s Lawyer. But we haven’t covered this specific area before. So we’re talking about firefighting foam that is typically used, you know, I don’t wanna say in excess, but it’s frequently used on military basis. Tell us about the applications of the firefighting foam.

Wes Bowden: Yeah, so what we’re seeing is that, you know, PFAS you guys have done a lot of shows on that as well. They’re very persistent, they’re bioaccumulative, and they’re toxic. So a lot of times when these chemicals are used, if they get into the environment, they just stay there. And one of the products that has led to probably the largest increase of contamination is the use of firefighting foams, AFFF, class B foams. And what these are, are, you know, the foam that comes out the firetruck, the foam that they use at airports to extinguish fuel fires, that’s what they are. And so, for decades, these were used unknowingly by the fire departments, by our local towns, by our counties, by our first responders of brave men and women who we rely upon to protect ourselves, protect our community. They didn’t know that there was PFAS chemicals in there, and for decades they were used and resulted in this environmental contamination.

Farron Cousins: So we’re talking about these chemicals being used because obviously they’re very efficient, you know, they go over the fire, they blanket it, smother it, prevent oxygen. So yeah, it works wonders, especially when you’re dealing with fuel fires from airplanes or vehicles, whatever it is, fast efficient, gets the job done. So for years and years and years, the manufacturers understood, they knew what’s going into this product. We know what we’ve got in here, but there’s no reason that everybody else needs to be concerned with this, which is, you know, typical. I mean, you’ve handled enough lawsuits, I’ve done enough segments on this. It always goes back to what the manufacturer knew and what they told the people using the products. Right?

Wes Bowden: Yeah, that’s exactly right. I think you mentioned it earlier, just now, most of these foams were used for training purposes. You know, you train, most of it 90, 95% of this product thats was used, historically was for training purposes. And you’re exactly right. What the companies failed to tell the end users, the firefighters themselves, was that this product needs to be contained. No matter when you use it, you collect it, you contain it, and you destroy it. Because they failed to tell people that, we’re now faced with nationwide contamination, really global contamination. So that’s a key element of one of the cases that’s going to trial here in about two weeks. And we believe that we’re gonna be able to prove to a jury what these companies knew. And there’s no question that the companies knew that these compounds were persistent. They were bioaccumulative and they were toxic as far back as the 1970s.

Farron Cousins: So what companies are we talking about here? Obviously, 3M, which has been involved in the production of a lot of these PFAS chemicals, you know. Pap and I have talked about the DuPont case, obviously with C8, the manufacturer of Teflon, it came from 3M and all of that. So are we dealing with 3M again in this instance?

Wes Bowden: Yeah. Again, we’re dealing with 3M. 3M is the largest historical producer of PFAS substances. They were making millions of pounds a year, and it went into everything. It went into a lot of our household products, not just Teflon, but it was used in paper packaging, fast food wrappers. It was used in wire insulation. I mean, it was as ubiquitous as asbestos used to be back in the 1930s and 40s. And that’s what we’re faced with. It’s not that these chemicals don’t work. They do work, they work very, very well. But at what cost? And that’s what we’re just figuring out now, is this rampant contamination, not just of the environment, but you and I have this in our blood as well, and we didn’t ask for it to be put there, and 3M doesn’t have a solution for it to be cleaned up at this point.

Farron Cousins: Right. You know, there was a recent study that came out where they did tests on toilet paper brands from all over the country, the biggest, not just country, excuse me, world. And the toilet paper has now been found to contain these PFAS chemicals in it, because that is how prevalent it is in the environment. And as you pointed out, this stuff is bioaccumulative. So it’s not just that it gets into our bodies and stays there. We’re talking about trees, trees that get cut down and used for paper products. I mean, the paper I’m holding right here right now likely has traces of PFAS chemicals in it.

Wes Bowden: I’m sure it does.

Farron Cousins: Because this stuff is everywhere, and it is used in, I mean, we couldn’t even sit here for the next hour and list all of the products that it has been used in over the last hundred years. That’s how prevalent it is, because as you said, it works. It’s super great as long as, you know, you’re never exposed to it, because that’s when the problems happen. So let’s talk about the problems, okay? There is a laundry list of cancers that have been linked to the exposure of PFAS. So just kind of tell us with the firefighting foam, what are we dealing with in terms of injuries?

Wes Bowden: Yeah, so, as you said, we’re just now learning about the problems. Until 2016, companies were still allowed to use this. The EPA didn’t catch on that it was widespread and in all these different consumer products until about 2010. And then they entered into an agreement with the companies forcing them to phase it out, and that phase out just ended. So, exposure to these compounds, whether it’s through firefighting foam, through your drinking water, through any of these consumer products, repeated exposure has been linked with kidney cancer, testicular cancer, ulcerative colitis, and thyroid disease. The science is very strong for all of those. The science is now mounting as well for things like whether vaccines work in children. In fact, the EPA just used that study to help lower the health advisory level. They promoted this last March of this year, and it’ll become effective probably in the Fall for a national drinking water mcl or a maximum contaminant level, which basically is gonna be, if you can detect it, you have to do something to get it out of there.

So these diseases can, you can be at an elevated risk at very, very low levels. If you can detect it, you’re at risk. And so right now we’re looking at regulation that’s sweeping, not just for firefighting foams, but for anywhere these products are used. Unfortunately, other countries have been a little bit faster than ours. Sweden, for example, has considered this to be a persistent organic pollutant for a while. New Zealand won’t let anyone import even a grain of it into their country. So we are now, we’re catching up. But these companies have had a lot of influence, a lot of power in delaying the science and regulatory action.

Farron Cousins: And that is what we see so many times with really any case. It all comes down to the influence that these companies have over the regulatory bodies, over the politicians. They pump so much money into the process at the local level, at the state level, the federal level. So they kind of get this, you know, free pass. We can do what we want to do and we’re gonna delay any kind of regulation because you keep feeding us money. Now here’s the thing. You and I right now, we’re situated in between three different military bases. And one of the places where we’re seeing increased concentrations of contamination is on these military bases and the land surrounding them. So explain why that is, like why are the military bases the hotspots for all of this pollution?

Wes Bowden: So the interesting thing is if you read about the history of firefighting foam, which is nothing anyone would do on their own, but the reality is, is that this was a product that 3M made. It was a solution to a problem that didn’t exist. And so what they did was they convinced the military that this can extinguish fires a little bit faster than the old stuff. And when I say a little bit faster, they were looking to extinguish a fire within 30 seconds. Some of these foams that don’t use fluorine at all, that don’t have any sort of PFAS in it, it may take ’em 40 seconds, it may take ’em 45 seconds. Now those seconds matter when you’re talking about lives. And it’s a product, like I said, that does work. But the vast majority of it is used for training.

And so they sold the military on, here’s this cure, we’re gonna put out fires more quickly. Of course we want that. We wanna protect our troops, we wanna protect all of our assets and defense assets. But they didn’t tell them not to train with it. And because they didn’t tell ’em not to train with it, it was used at Saufley Field, it was used at Eglin, it was used at all of the municipal fire departments. And as a result, it went out into the ground, into the ground water as well and it’s contaminated out aquifer. So a lot of us, you and I included, where we are here in Pensacola, we have PFAS in our water and it has to be filtered out. And so our local utility has spent tens of millions of dollars of filtering this out, all because the company has never told the truth about what they knew internally. Don’t train with it, contain, collect and destroy. If they had done that, we wouldn’t be having this conversation right now. But that’s unfortunately what happened was the vast majority of use is from training and about half of the use historically has been through the military for just those reasons we’ve talked about.

Farron Cousins: So you’re talking about the city that we’re in right now, obviously millions of dollars spent to filter this stuff out. And I’m gonna assume, you know, based on how prevalent this stuff is, we’re not the only city that’s had to do that. But the lawsuits you’re handling right now, these are not on behalf of cities, are they? These are individuals, correct?

Wes Bowden: So, we have both. We represent cities, we represent states and counties as well because they’re the ones who are now burdened with cleaning this up. And the question is, are they gonna pass on that cost to the people that live in their communities? Are they gonna tax them in essence, or are they gonna ask the companies who created this problem to fix their mess? And so we do have counties and governments that we represent, but we also represent people who have unknowingly been exposed to this and have developed those diseases. And the science is really strong on this. We can actually take blood samples. I mean, the same way you would do to measure your blood sugar if you’re diabetic. And we can measure the PFAS in your blood and also tell you what type of PFAS it is and who made it. That’s how advanced the science has got in the last couple years. So it’s a very strong case and we look forward to our day in court because we think that once the truth is made known, a jury’s gonna see it for what it is and they’re going to hold 3M, DuPont and others responsible.

Farron Cousins: That’s actually remarkable with that testing. That’s something I didn’t know because that’s also, it just reminds me of the climate change lawsuits that we have that have, you know, routinely been thrown out of court because the courts have said, listen, we know the pollution from these oil companies is causing catastrophic problems. The issue is you, as the plaintiff, you can’t prove that this individual’s pollution is what caused this. And now we’re at the point, at least with this case, maybe we’ll get there with pollution one day, but we could say, no, no, no, no, no. Look at my blood right here. Here’s the results. This PFAS chemical that is inside of me came from this company. That is remarkable. I mean, that is.

Wes Bowden: It’s a game changer.

Farron Cousins: That truly is. So we’ve got the two avenues of litigation. We’ve got the individual human beings that have been injured. We’ve got the city, states, governments that have incurred all of these massive costs. And there recently was a victory in court with the Daubert.

Wes Bowden: That’s right.

Farron Cousins: Which is something I’m not fully able to understand, you know, that’s not my training. So explain that a little bit, because I did some reading on it. I kind of get it, but just so everybody understands where we’re at.

Wes Bowden: Yeah. So quite simply, what happens when you bring a lawsuit, you actually have experts that come in and talk about how was this knowable? Was it known and are we certain that it’s this company who did it? And they issue opinions. In that process, that Daubert challenge, it comes from a case, Daubert v Dow Chemical. So it’s a very well known thing in the law. But what it means is that the defendants will challenge and say that your experts don’t know what they’re talking about. It’s junk science. And the court rejected that argument. It said, it’s sound science, it’s reliable, and it meets the requirements to be presented to a jury. Of course it should because it’s truthful, it’s accurate. It’s what the defendants already knew 50 years ago that we are just now figuring out ourselves as a nation, as a community, and now presenting this truth to a jury.

Farron Cousins: So we’re, we’ve cleared the big hurdle, right? The Daubert decision, we got that. So like you said, you’re going in two weeks. What happens if you win? Which I’m, you know, I have full faith in you. I have no doubt that you do. But obviously you’re gonna end up with an appeal process here. Typically that happens, but, you know, realistically, how long should the trial take? And then, you know, if there is recovery for the victims here, is there, do you have any idea of any kind of timeline we could be looking at?

Wes Bowden: You know, it’s always things that are outside of our control. Of course, we want people to get their recovery now so that they can afford to remediate this problem. We first and foremost want to stop exposures to people, people who are drinking water, people who are living in the communities that have been contaminated. There’s nothing we can do to control whether an appeal occurs or not. We put on our best case, we, you know, abide by the law, stay within our lane, put on the best case that we can. It’ll probably take us about five or six weeks to do it. Maybe longer. It just depends. But once that happens, you’re right. There could be an appellate process. But importantly for people watching, the EPA is taking action now. The EPA has issued a proposed limit and are giving water providers three years to come into compliance.

So we’re not there yet. Three years sounds like a very, very long time, especially when you’re talking about a very potent carcinogen. But the regulatory landscape moves at a glacial speed. And so three years, we’re now, the end is in sight for getting this out of our water system, getting this out of, you and I, our water supply and stopping exposure to everyone in our community, including our children at their schools, everyone who’s exposed to this. So hopefully we’re getting towards the end of what has been, I think one of the most disastrous environmental concerns ever.

Farron Cousins: And we wouldn’t be in this position where the EPA is even taking any action had it not been for these lawsuits. I mean.

Wes Bowden: That’s right.

Farron Cousins: We can sit here and say, no, the EPA would’ve caught on, no, no. I’ve been following the EPA for 20 years in my career. No, they wouldn’t. If they’re not forced to do something by either public outrage or by the lawsuits, or by just overwhelming science beating them in the head, they are not going to do it. And sometimes even that isn’t enough to make them do this. So Wes, full support for you. I have full faith in you that you guys are gonna do a great job here. So thank you so much for joining me today.

Wes Bowden: Thanks for having me.

Farron Cousins: Pap and I have spent many segments on this program talking about the dangers of these PFAS chemicals and Pap knows this issue better than anyone. He successfully handled the lawsuits against DuPont for using these compounds in the production of Teflon that left an entire portion of the country with horrible, often deadly illnesses. Recently, Pap and I did a segment explaining how prevalent these chemicals are. So let’s revisit that discussion now.

Mike Papantonio: A new report’s found that eating a single freshwater fish is the same as drinking dangerous PFAS chemicals. Okay. First of all, most people don’t know what PFAS is. You, do you agree with that?

Farron Cousins: Oh, absolutely.

Mike Papantonio: It’s been knocking around out there. We tried the first case, the first time PFAS ever got into the public domain were the trials that I had up in West Virginia. They made two movies out of it. One was called The Devil We Know, it’s on Netflix. The other one was about the lawyer who brought the case to me, brilliant lawyer, named Rob, Rob Bilott. It’s called Dark Waters. Begin by watching those movies to understand how bad this is. Okay. PFAS is so dangerous that, if you take one drop, one drop, put it in an Olympic size pool, it’s going to have the propensity to cause the physical problems that the, that we’re talking about. Which are what?

Farron Cousins: We’re talking about neurological problems, cancers of every imaginable kind for the individuals, birth defects. And, and the big problem here too, and you’ve discussed this plenty of times, is that it’s bioaccumulative.

Mike Papantonio: Mm-hmm.

Farron Cousins: Which means once it gets in you, it’s in you. So every PFAS chemical you drink after that is just compiling and building up inside your system.

Mike Papantonio: And explain why it’s in fish. Explain why it’s in our drinking water. Talk about that.

Farron Cousins: Exactly. It’s, it’s the waste from these massive corporations that have been dumping it for decades. Our, our EPA right now still doesn’t know exactly if we’re gonna stop this because it’s still happening. They’re still debating on what the proper limits are, but there’s no limit.

Mike Papantonio: 50 years. 50 years the EPA has known that PFAS, the first cases we tried was C8. It was a type of PFAS. So, so we found the documents, the EPA understood that all of the rat studies were a disaster. All of the beagle studies, they all died. All the monkey studies, they all died. And it was caused by this stuff that is in our drinking water right now. The second phase of this case that we’re handling right now is all these drinking water facilities. The, the delivery facilities. They have so much PFAS in their water it would take a hundred to $200 million per facility to get it out of the water.

Farron Cousins: And so now what we’re looking at, this new study from the Environmental Working Group says, one freshwater fish, just one, if you were to eat that right now for lunch, that’s the equivalent of drinking nothing but PFAS basically for an entire month, one fish. And these freshwater fish they’re talking about, these supply foods to, to communities. They’re a huge source of food for low income Americans who always bear the brunt of all of these environmental toxins.

Mike Papantonio: Mm-hmm.

Farron Cousins: Native populations. All of these groups heavily dependent on these fish. And we’re finding out now we’re poisoning you even faster than the rest of us are being poisoned. Because everybody’s getting it, but they’re getting it worse.

Mike Papantonio: You wanna know how it happened? You know what came out in the trial? Okay. It’s 3M and DuPont were the big, big folks in this. They did all this testing. They saw that all the tests were a disaster causing kidney cancer, causing testicular cancer, causing neurological problems, causing birth defects. All of this information they had. Now for a little while, they hid it from the EPA. But then at some point they handed it over to the EPA. EPA did nothing. They, they, there was nothing that was done by the EPA. All right. Working Groups, Environmental Working Groups gave it to the media. Don’t you think, this was like, this was 40 years ago. Don’t you think this is an important story New York Times? Don’t you think this is important Washington Post?

Farron Cousins: It should be.

Mike Papantonio: No, it wasn’t because obviously advertising money was moving into those entities. Television wouldn’t do it. 3M, check your TVs, 3M advertisers like crazy people. So even the, even the so-called investigative corporate types weren’t doing anything on this project. Then regulators, we found out that the regulators that were supposed to be in charge of all this were moving from, from being regulators to going to work for 3M in million dollar jobs or DuPont, going to work, going from regulation to DuPont. It was this revolving door and it went the other way. People who worked for the industry was put, they were putting people in, in administrative positions with the EPA to slow it all down. And, and, and Farron, I swear God, if you say, isn’t that PFA, PFAS a problem to 10 people, if you get one of them to even understand it’s in their body. It’s in their drinking water. They don’t get it.

Farron Cousins: No. It, it’s, what is it at least 98% of all life on Earth at this point?

Mike Papantonio: Yes.

Farron Cousins: Has PFAS chemicals in it.

Mike Papantonio: Polar bears have it. It’s so bad that they had to find blood that they could do epidemiology studies with. They, they couldn’t find it with contemporaries. They had to go to the soldiers that were in Korea to look at their blood samples to even be able to compare because they didn’t have it in their blood because it hadn’t started then.

Farron Cousins: That’s all for this week. But make sure you follow us on Twitter @AmericasLawyer. I’m Farron Cousins, Mike Papantonio will return next week, and this has been America’s Lawyer, where we tell you the stories that the corporate media won’t tell you, because their advertisers won’t let them, or their political connections won’t allow it. We’ll see you next time.

Mike Papantonio is an American attorney and television and radio talk show host. He is past president of The National Trial Lawyers, the most prestigious trial lawyer association in America; and is one of the few living attorneys inducted into the Trial Lawyer Hall of Fame. He hosts the international television show "America's Lawyer"; and co-hosts Ring of Fire Radio, a nationally syndicated weekly radio program, with Robert F. Kennedy, Jr. and Sam Seder.