What’s Our Role During the Demise of the EPA?

We’ve written before about the potential of a future when auto accident cases may dry up, and the need to be thinking creatively now about your firm’s future focus. There are some glaring areas in need of good plaintiff-side lawyers:

It comes down to this: as companies push themselves to more extreme tactics to make a profit, they’re going to make more mistakes and harm more people. A good personal injury practice requires that we be just as flexible and mobile to follow these new trends. While car accidents have provided a steady backbone of small, ready-made cases, the future could require us to take on bigger cases with larger up-front risks.

I think of these words as I squint at some lines and numbers on the screen, the squiggles and hexagons of a chemical symbol:

These squiggles are “Chlorpyrifos,” a name which invokes some kind of fiery bleach (pyromaniac chlorine?), but if my Latin serves it means something genial, like “green and pear-shaped.” If you’re a farmer in one of the countries where it isn’t banned, you might know it as “Warhawk,” “Hatchet,” “Cobalt,” or a number of other nouns that avoid saying what it is.

What is it? A nerve agent in the same chemical family as sarin gas. Also, it’s an insecticide, killing insects by jamming the regular function of neurons and driving the nervous system haywire. Humans poisoned by Chlorpyrifos experience nausea, dizziness, convulsions and even death, and there’s reams of evidence showing smaller amounts inhibit brain development in the young.

Because of this proven toxicity to humans and animals, in 2015 the EPA moved toward blocking sale of the substance. But then Donald Trump’s presidency began, and the Agency came into the hands of its long-time opponent: Scott Pruitt. When Pruitt was Attorney General of Oklahoma, he filed a number of lawsuits against the EPA, fighting its regulations on things like mercury and ozone levels. He pushed for more leeway for corporations, even allowing oil and gas companies to write his official policy stance.

But even still, his backtrack on chlorpyrifos came as something of a shock. The EPA had already exhaustively studied the effect of this chemical, and their own studies, reviewed by industry experts, determined that infants and children in several parts of the country were being exposed to unsafe amounts of the toxin in drinking water — levels up to 140 times the safety limit. In addition to deeply troubling animal studies (even very low doses sent neurons into programmed cell death, at any age of brain development), their epidemiological research showed that the more of this chemical children had in their system, the more likely they were to experience reduced mental development, attention problems, and autism spectrum disorders. The studies concluded that there was no safe level of exposure to this chemical.

But Scott Pruitt changed course on chlorpyrifos without any word of his agency’s previous research findings.

So where do plaintiff-side attorneys come into this story?

That remains to be seen. But reading about this risky move by Pruitt, I remember the work of Rob Bilott, a corporate lawyer who turned plaintiff-side for one case, as a favor to his grandma, and earned himself the nickname “Dupont’s worst nightmare.”

In the early 2000s, Bilott faced a legal problem that is likely to continue in an age of lax federal oversight. He had mounds of evidence that a chemical used by Dupont to make teflon — called PFOA — was poisoning people and livestock. He wanted to represent a class of 70,000 people whom he believed had been poisoned. But the substance appeared on no federal or state list of pollutants, and (unlike chlorpyrifos) there was a lack of information on the effects of the substance across large populations. All he had were the anecdotal stories of very sick people.

So Bilott tried a different legal technique: the medical monitoring claim. This kind of claim is only possible in some jurisdictions, but West Virginia was one of the first, and that’s where Bilott filed his lawsuit.

Plaintiffs for a medical monitoring claim don’t need a detailed list of harm done by a substance and subsequent costs: they only need to prove they have been exposed to a toxin due to the defendant’s actions. If the defendant loses the lawsuit, they have to fund regular medical tests for the plaintiff. Illness or injury found in the future can be a basis to sue retroactively.

DuPont settled Bilott’s class action lawsuit in 2004, installing filtration plants in affected water districts and paying a cash award of $70 million (which included $21.7 million in Bilott’s fees, a welcome windfall after years of making zilch on this case). Further, they agreed to fund a scientific study on the toxicity of PFOA, and if they found a link to human diseases, they agreed to pay for the continued medical monitoring of the class.

As a trade-off: until this study was finished, class members weren’t allowed to file personal injury lawsuits against DuPont.

Bilott could have just collected the cash and moved on, but he had more smart moves designed to win settlements and protect people from toxins. Encouraged by him and his legal team, the class voted to make settlement funds contingent on receiving a full medical examination. All of this information then went into the epidemiological studies the scientists were doing, giving them a massive amount of data from across the population of everyone who had been drinking PFOA-poisoned water.

At this point, Bilott was taking on a risk: it was possible the scientists wouldn’t find a link between PFOA and disease, and the entire class would be blocked from personal lawsuits. And it also introduced a waiting game: the research dragged on for seven more years before the scientist were confident about their conclusions.

But ultimately, in 2011 the researchers announced a clear connection between PFOA and kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, pregnancy-induced hypertension, and high cholesterol. The bellwether lawsuits that followed resulted in multi-million dollar awards for the plaintiffs, pushing the company to settle thousands of cases earlier this year for $671 million.

DuPont has now given up on PFOA, as have the five other companies in the world that make the chemical. Bilott’s bulldog tenacity and strategic legal techniques not only earned him hefty settlements, but also cleaned one poison source out of the world’s water.

Bilott’s story is a helpful reminder for this moment, when we may be seeing even more risks taken with toxins like chlorpyrifos. One lesson is to remember that even before the recent collapse of regulatory bodies, they were already often slow-moving or at odds with actual human health. But with creative legal maneuvers, plaintiff-side attorneys can build successful settlements even without their aid.

Secondly: this kind of case takes a tremendous amount of time. It is important to start early, as an investment that might take years to pay off.

And finally: these payoffs can be monumental — both in terms of lawyers fees and in terms of human health.