Justice as toxic as the chemicals

When regulators fail to act, people who have been hurt by the products produced by a company have only one other option to get compensation — the courts.

Firefighter Paul Cotter was convinced the firefighter turnout gear he wore every day on the job in Worcester, Mass., caused his prostate cancer. He and his wife, Diane Cotter, wanted to file a lawsuit as soon as they learned about the chemicals but had trouble finding a lawyer to take the case.

“I had been contacting lawyers for ages in regards to this, but the science wasn't there,” says Cotter.

Cotter pressed on with what became a decade-long effort to expose the dangers of PFAS.

That changed after she and nuclear physicist Graham Peaslee conducted a study that provided the science. That evidence, coupled with Ohio lawyer Rob Bilott’s successful class action lawsuit over poisoned drinking water in West Virginia and Ohio in 2004, persuaded lawyers to take Paul’s case.

Paul and nine of his former colleagues are suing chemical companies 3M and DuPont, as well as the manufacturers of the firefighting turnout gear they wore every day on the job. They believe the PFAS chemicals used to make the gear entered their bloodstream and caused cancers. Since they filed their lawsuit in 2022, more firefighters have joined them.

Meanwhile, Bilott continues his work in the courts. After winning his first case, he followed up with another, much larger, class action lawsuit.

“In 2018, we filed a new case in federal court in Ohio, where we were seeking to represent everyone in the country who had at least PFOA (perfluorooctanoic acid) mixed with at least one other PFAS chemical like PFOS,” says Bilott.

A class action suit represents a group of people — in this case, millions. Bilott’s class action sought to include every person in the U.S. who had a detectable level of PFAS in their blood. A 40-year-old Ohio firefighter named Kevin Hardwick was the frontman for the lawsuit.

The massive class action suit asked everyone in the U.S. to have their blood tested for PFAS chemicals and if they were found, people would have their health monitored by a team of court-appointed doctors for life. In 2018, the population of the U.S. was 325 million people. DuPont, 3M and the eight other companies named in the lawsuit fought the suit’s size in court and won. The court reduced the class action to Ohio, which is still 10 million people.

Then the companies challenged the certification of the class action, arguing the class was too broad. The court agreed and Bilott was forced to start all over again.

“The appellate court accepted the argument from the defendants that this case shouldn't be allowed to proceed because, after all, we don't know where these chemicals are coming from that are getting into these people's blood … [and] we haven't been able to show which specific company put which specific chemicals … in people's blood,” Bilott said.

In 2023, the U.S. regulator, the Environmental Protection Agency, issued some rules for measuring PFAS chemicals in the environment and added some specific PFAS to its Toxics Release Inventory and a framework document for reviewing new PFAS chemicals that come on the market. But none of the 12,000 PFAS chemicals has been banned and more are coming. Like the chemicals themselves, the lawsuits keep growing, with more than 15,000 from cities, states and individuals.

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