Last spring, I participated on a CLE panel presentation for in-house attorneys on creative legal theories that plaintiffs are pursuing in environmental and toxic tort litigation. For many of the theories we covered, we advised our audience that the case law is still developing and it isn’t always easy to predict how a court might rule, particularly at the trial court level. But on one topic—the availability of class actions to pursue medical monitoring for alleged exposure to a toxic chemical—I felt fairly certain about the future, suggesting to the audience that we shouldn’t see them any longer, at least not in federal court. Now, just a year later, the surge in toxic tort cases on account of PFAS and other so-called “emerging contaminants” has caused me to revisit my prediction, and serves as a reminder of how public health concerns can shape the law in some fairly fundamental ways.

Per- and polyfluoroalkyl substances, or PFAS as they are now commonly known, were manufactured and used in a variety of industries across the country beginning in the 1940s. In the late 1990s and early 2000s, when many environmental lawyers and litigators were focused on a new exposure pathway called vapor intrusion, another firestorm was quietly brewing with PFAS. One of the first, if not the first, class action lawsuit involving alleged PFAS exposure was filed in 2001 in West Virginia state court (Leach v. E.I. du Pont de Nemours and Co., Case No. 01-C-608 (Wood County W. Va. Cir. Ct. filed Aug. 31, 2001)). In 2005, the court certified a settlement class that resulted in the creation of a science panel to conduct research into whether there was a probable link between exposure to perfluorooctanoic acid (PFOA) and various diseases. The class settlement also provided for the establishment of a medical monitoring protocol for the diseases and conditions for which the science panel found a probable link.