Trial Bar Gearing Up for the “Ultimate” Class Action Lawsuit
Several recently filed class action lawsuits represent the latest effort by creative trial attorneys to create the ultimate class action case and force companies to make “science versus settle” decisions based on economic coercion rather than fact-based science.
Each of the three cases involve a group of chemicals known as per- and polyfluoroalkyl substances (PFAS). PFAS, or “forever chemicals,” are used in non-stick cookware, firefighting foam, stain resistant carpet, waterproof clothing, food packaging, and other commercial and household products. One case involves claims that exposure to PFAS has negative health effects on humans while two other cases claim that plaintiffs were not adequately warned about the environmental persistence of the chemicals.
I refer to these lawsuits as the “ultimate” class action cases because almost everyone in the United States may be eligible to be a member of the class. As previously noted, the Center understands that such litigation can offset the asymmetry in resources between large corporations and individuals who may have suffered legitimate damages from the use of a particular product. The more claimants, the greater pressure that attorneys can bring on companies to settle disputes before ever risking the outcome of a jury trial. And, a lawsuit in which every American is a potential participant is a trial attorney’s dream.
Class action cases are not an effective way to determine legitimate claimants from those merely seeking a chance to make some quick cash. Unfortunately, a large percentage of any settlement goes into the pockets of the trial attorneys who specialize in creating the fear that fuels such cases.
Moreover, many of these cases are ultimately settled based on economic pressure than scientific facts—and, right now, the jury is still out when it comes to understanding the facts on the potential for harmful effects from PFAS.
First, there are many types of PFAS. Some have been phased out and replaced by other chemicals as a result of extensive research on their toxicity, and the Center supports such action when taken based on fact-based science as this results in well-informed decisions that protect consumers while allowing the safe use of chemicals and compounds that enhance our quality of life and safety.
However, we do have concerns about demands by some scientists to treat all PFAS as one class and ultimately universally prohibit their use. To date, the findings simply do not justify such draconian action. Instead, we suggest a more thorough evaluation of all existing studies on the chemical compounds by an independent and objective panel of scientists to verify the veracity of the methodologies used in the studies and, more importantly, the accuracy of the findings.
This would place the focus on determining if the various types of PFAS are safe, potentially harmful, or if it requires more advanced research to reach a definitive conclusion.
To maintain the integrity of the system, judges should strive to reach agreements with both the manufacturers and the plaintiffs’ attorneys to accept the result of the research in determining the future of litigation. This will go a long way towards preventing the mass tort machine from launching into fear-mongering marketing campaigns (“call this number now; you may be entitled to compensation!”), creating unjustified panic among consumers, and undermining the use of scientific facts by jurors in making reasonable and rational decisions about liability and damage awards.