Past toxics cases set the stage for PFAS lawsuits
Last in a four-part series
When Erin Brockovich was already knee-deep into investigating a chromium-six contamination case plaguing the Californian desert town of Hinkley, her boss Ed Masry warned her that he had run into a problem.
“He pulled me into the law library one day and just said he didn’t think we could go forward,” Brockovich told The Hill. “I was stunned. And I said, ‘Why?’ And he said, ‘Well, there’s a statute of limitations.’”
A statute of limitations — or a law that prohibits legal claims after a prescribed period passes following the harm — can be a decisive factor when it comes to trying, or even taking on, a toxic exposure lawsuit. These restrictions, which vary in length and detail from state to state, are today playing a role in the litigation emerging following community exposure to “forever chemicals,” or per-and polyfluoroalkyl substances (PFAS).
But these statutes have long been a central player in other toxic exposure cases — making an appearance both in Brockovich’s real life and the Hollywood blockbuster film based on it starring Julia Roberts.
Brockovich, who was working as a legal aide for Masry in the 1990s, said she had already spent many months interviewing people, going to the California Water Board, gathering documents and investigating Pacific Gas & Electric’s (PG&E) chromium-six contamination that was making Hinkley residents sick.
Jorg Halaby, left, with Erin Brockovich and her youngest daughter getting ready to leave Hinkley for the day, early 1990s. © Courtesy Erin Brockovich
Because building the case was expensive, Brockovich explained, Masry was looking for a partner — but he had trouble finding anyone to join them due to California’s strict one-year statute of limitations. PG&E had argued that it had warned residents about its total chromium use more than a year before, meaning that the statute of limitations would have already run its course.
“And I’m like, ‘Well, that’s disappointing, Ed,’” Brockovich said. “‘So I’m sitting here in your law library — how did all these laws, these supposed statutes, even come to be? Because somebody challenged it? Somebody created it? Somebody changed what was already on the books? So you’re just status quo, it is what it is. Based on everything you’re saying, it’s not even something challengeable.’ And that’s when Ed kind of sat back and said, ‘You’re right.'”
Ultimately, Masry, who died in 2005, decided to proceed with the argument that time hadn’t run out because PG&E hadn’t warned residents about the specific type of chromium causing the contamination, Brockovich explained.
While chromium occurs in both trivalent, or “chromium three”, and hexavalent, or “chromium six”, forms, laboratory analyses usually report “total chromium” amounts, which is a combination of the two, according to the California Water Board. Chromium three is considered an essential component of human nutrition in moderation, while chromium six is a toxin.
But Hinkley residents, according to Brockovich, were only informed by PG&E about the presence of total chromium — meaning that Masry was able to circumvent the one-year statute that would have applied to total chromium, as the company had not informed the plaintiffs about the specific presence of chromium six.
Toxic exposure cases present unique difficulties that would not come about from, say, a lawsuit regarding an automobile accident.
Vehicle collision cases typically involve a precise incident and diagnosis, whereas the root cause of an injury is much more difficult to prove in toxic exposure scenarios, according to Kevin Hannon, the Denver-based head of toxics and environmental litigation for the nationwide Morgan and Morgan Law Firm and the founder of The Hannon Law Firm. Hannon serves on the steering committee for multidistrict litigation currently taking place against PFAS manufacturers in South Carolina.
A warning sign is posted on the fence of a PG&E plant in Hinkley, Calif., as seen in a photo from the early to mid-1990s. © Courtesy Erin Brockovich
That said, other types of legal cases can provide windows into how statutes of limitations can be applied.
A Wisconsin state appeals court recently ruled in a medical practice case — Brandon Winzer v. Dr. Hartmann — that the clock on a statute of limitations doesn’t necessarily begin when the harm starts.
At issue was an alleged failure in 2012 to detect a tumor in Brandon Winzer’s stomach after his complaints of stomach pain.
Winzer sued the hospital and a doctor in 2018, after he had to undergo surgery that led to the removal of 25 percent of his stomach, according to the suit. The tumor removed in that surgery was alleged to be the same one that caused his 2012 stomach problems.
A lower court determined that his suit was time-barred, since the state’s three-year statute of limitations had elapsed.
But Winzer argued the clock actually began in 2017, when he needed emergency surgery, and the appeals court ruled in his favor, citing state statute saying the clock should start when “greater harm” occurs.
But toxic exposures may be even more complicated than medical malpractice cases, according to Hannon. If, say, a surgeon accidentally left a sponge inside a patient, Hannon said, lawyers could spar over whether the statute of limitations is triggered on the date the sponge was left in the patient, the date the patient first started experiencing pain or the date someone discovers the missing sponge.
“It isn’t even that clear in PFAS cases,” Hannon said.
When does the clock start for toxic exposures?
Because PFAS cases are still relatively new from a legal perspective, Hannon drew several parallels to other types of toxic exposures, noting that, for instance, it may take years for early childhood lead exposure to manifest difficulties in school.
And when illnesses or disabilities can take years to develop, the short length of statutes of limitations in many states can make starting the clock particularly complicated. However, there are certain chemicals, such as asbestos, for which that clock has become a bit clearer.
Regarding asbestos, Hannon said that courts settled on two separate triggers for the application of statutes of limitations for asbestosis and mesothelioma cases linked to exposure — with the understanding that the development of asbestosis will not necessarily lead to mesothelioma.
When exposure to toxins, especially PFAS, has been identified, “it’s really hard to trace that or figure out what that means or what that will mean for communities,” said Sonya Lunder, a Colorado-based senior toxics policy adviser for the Sierra Club.
Meanwhile, the science itself on PFAS is still developing, making “the statute of limitations issue, as we sit here right now, even more complicated or treacherous,” Hannon said.
“They call them emerging contaminants for a reason,” he continued. “They’re not really emerging contaminants. But the science is emerging about how systemically bad they really are.”
In PFAS cases, connections between diseases and chemicals are just recently being identified, after decades of contamination.
For years, patients would not have thought to connect their illness — say, kidney cancer — to PFAS, until the Environmental Protection Agency’s health advisory levels were published in May 2016, and suddenly the media began linking such cancers to PFAS exposure, explained David McDivitt, vice president of the Colorado Springs-based McDivitt Law Firm.
While the health advisory levels are not regulatory standards, they established initial guidance as to what concentrations of two specific types of PFAS — PFOS and PFOA — might cause harm, based on available data.
“And all of a sudden, the lawyers start advertising on TV for cases,” said McDivitt. “That’s when somebody would argue that that discovery two-year window starts with that particular client, because they had the condition.”
And with that change in health advisory levels, a person who could have previously been perceived by the courts as being not at risk for harm could now be perceived by courts as being at risk, Hannon explained.
Hannon found similarities between PFAS cases and another exposure case he worked on more than 20 years ago, Hoery v. United States.
In that case, the plaintiff, East Montclair, Colo., resident Rocky Hoery, read that two miles away from his home there had been releases of trichloroethylene (TCE) at Lowry Air Force Base in Denver.
Rocky Hoery, an East Montclair, Colo., resident, had trichloroethylene in his well discharged from Lowry Air Force Base in Denver. © Courtesy Rocky Hoery
It took more than two years for the Air Force to test Hoery’s well, and then he didn’t receive the results showing TCE contamination for another four months, meaning that the Air Force could argue that more than two years had passed since he had first read about the TCE discharges, Hannon said. And in Colorado, both negligence and trespass claims are governed by a two-year statute of limitations.
“A district court judge dismissed the case and said we missed the statute of limitations,” Hannon said.
Hannon appealed the decision, which ultimately ended up in the Colorado Supreme Court and was overruled, with the judges determining that each day new contamination comes onto a person’s property, or each day a contaminant remains on a property, triggers a new statute of limitations, Hannon explained. That decision, he continued, helped establish case law of “continuing” trespass and nuisance.
Recalling his case from nearly two decades ago, Hoery confirmed that the district court judge initially dismissed the case “because of the statute of limitations.” Hannon, he said, then appealed the decision “on a continuous trespass because it had not been cleaned up.”
“It went all the way to the [Colorado] Supreme Court, and they agreed,” Hoery said. “When you sue the government, you don’t get a jury. You get a judge who has a procedure they follow, and as long as they follow that procedure, regardless of what their verdict is, you cannot appeal it.”
Hoery said he learned that the government was going to offer him a settlement, after which he recalled the judge telling him, “I strongly urge you to take it because if you don’t, you may not like what happens.”
What that meant, Hoery explained, was that if he did not accept the settlement and he lost the case, the government would send him a bill for defense costs, as opposed to issuing a summons.
Hoery ultimately accepted the $100,000 settlement. However, when it came time to pay out that settlement, he said that other impacted neighbors were allowed to step in and request a share of the $100,000 total, on top of the expensive legal fees he had incurred.
“Anyway, after all the smoke cleared, and everything was paid, my take was $2,500,” Hoery said.
But he then needed to subtract another $1,000 for the retainer fee and split the final amount with his ex-wife — meaning they each got $750, Hoery said.
“I guess I’m fortunate — not that many people are offered a settlement from the U.S. government,” he added.
In this sense, Hoery’s victory was a rare case in which a plaintiff succeeded in suing the Air Force, by making use of a tool called the Federal Tort Claims Act — a 1946 statute that enables private individuals to sue the U.S. in a federal court and that recognizes liability for negligent or wrongful acts of the government’s employees.
Despite his minimal financial gains, Hoery acknowledged the legal significance of his case, stressing that this “changed water law.”
“The statute of limitations does not start until the cleanup is completed,” he said.
Applying the continuing tort concept to a personal injury claim could be much more difficult. Defendants could argue that as soon as a community found out about PFAS contamination and residents began receiving bottled water, the clock on the statute of limitations started ticking, according to Hannon.
Other suits — including a PFAS case — have looked to Hoery
The precedent established in the Hoery case was later used in Colorado to defeat arguments seeking to bar a case based on statute of limitations.
In a case decided in 2004, Cook v. Rockwell, a judge ruled that a claim for alleged plutonium contamination was not barred by a statute of limitations, since, like in Hoery, the problem was ongoing since it remained on the property.
But cases in other states have been decided differently, as the country has a patchwork of laws determining the outcome of toxic exposure cases.
For instance, in a 2002 California Court of Appeals case — Rivas v. Safety-Kleen Corp. — the 2nd Appellate District Court affirmed the trial court’s decision to dismiss a toxic exposure lawsuit on statute of limitations grounds.
That case involved an individual who had filed suit against various manufacturers for exposure to toxins in the workplace that resulted in kidney damage. The worker, according to the case, was diagnosed with a malfunctioning kidney in 1991 and was told by his doctor that he should avoid a particular solvent at work. These recommendations, according to the summary judgment, “should have been sufficient to arouse a reasonable person’s suspicion and lead to further investigation,” but the lawsuit was not filed until 1998.
At the time, California’s statute of limitations for claims of personal injury was one year from the date of accrual — the date at which an alleged liability occurred — according to the case. The California Court of Appeals therefore determined that “the trial court properly ruled that the action was barred by the one-year statute of limitations for personal injury.”
But plaintiffs were also able to use the Hoery precedent to successfully defeat statute of limitations arguments in a PFAS case affecting Georgia residents. The plaintiffs in that case allege that carpet and chemical manufacturers have long discharged PFAS into the Conasauga, Oostanaula and Coosa Rivers.
In a decision in September, Johnson v. 3M Co. et al., the U.S. District Court for the Northern District of Georgia allowed claims regarding discharges of PFAS, filed by a Georgia man, to proceed against manufacturer 3M and several carpet companies, Law360 reported. The claims are part of a proposed class action on behalf of Georgia residents about 50 miles downstream of “the carpet manufacturing capital of the world,” in Dalton, Ga., according to Law360.
One particularly significant component of the ruling was the decision that the “plaintiff’s claim is not barred by the statute of limitations,” refuting a motion filed by Dalton Utilities, the full case text reads. Dalton Utilities argued that claims regarding its PFAS discharge would have needed to occur within five years of the lawsuit filing — August 27, 2015.
The plaintiff agreed that the limitations period of five years is applicable, but argued that, like in Hoery, the clock resets on each day there’s a new unpermitted discharge. Such discharges allegedly continued through June 2020.
Additional hurdles that have come up in toxic exposure cases in general — which could also be a challenge for PFAS litigation — are occupational disease claims, said environmental litigator Mark Cuker.
Traffic moves down Highway 58 through Hinkley, Calif. © Associated Press – Reed Saxon
Cuker said that filing such a claim could start the clock on a statute of limitations and prevent someone from suing later.
“Let’s say you’re employed by the U.S. government. You’re working on a Navy base and you got cancer and you made an occupational disease claim. And now three years goes by and … you want to sue the manufacturers of AFFF,” he said, referring to firefighting foam containing PFAS that’s used by the military.
“You’re gonna get f—ed,” he continued. “I mean, you’ve got a big problem, because they’re going to say you knew enough to make an occupational disease claim. You should have filed your claim against us at that time.”
Cuker said that this has been a problem with asbestos cases, in which employees would sue for workers compensation, and later couldn’t sue manufacturers.
PFAS may be unique in their ubiquitous ability to persist in the environment, but the associated lawsuits cropping up around the country are simply the newest to emerge in a complex history of chemical contamination suits.
“It’s a whole toxic exposure problem, and that’s why the statutes of limitations need to be longer, because it’s too easy for industry to use that as a shield for cases,” Hannon added.
If a family doctor even dares to note in a patient’s medical records that an illness “looks like it could be” due to PFAS exposure, the defense could argue that a statute of limitations was triggered, he said.
In Hannon’s mind, lengthening statutes of limitations would be the only solution that could help plaintiffs. State legislatures, he explained, would need to extend their statutes of limitations — essentially giving people more time to prove what is by nature a complex case.
“The whole point of extending the statute of limitations is this is not an auto accident. It’s more complicated than medical malpractice,” Hannon said. “That’s why we need a longer statute of limitations, because this chemical exposure situation is far more complex than almost any application of statute of limitations in any other circumstance.”
Despite the legal complexities associated with pursuing lawsuits following exposure to toxic substances like PFAS, Brockovich — the Hinkley, Calif. activist turned household name — expressed some optimism in the fight going forward.
“I think we all assume that a law is a law,” Brockovich told The Hill. “No — laws came to be because somebody fought for it. They challenged them. And our legal system should be open to that.”
And that legal system, she explained, doesn’t necessarily require the challenger to be a scientist, a politician or a lawyer, as she didn’t “need to be any of that” to show that “the two-headed frogs” and “green water” in Hinkley was abnormal.
“All you’ve got to be is a human with some gumption to go, ‘I don’t think so,’” Brockovich added.