Insights & Events

Law360 published an article by Hollingsworth LLP partners Gary Feldon and Carter Thurman that provides an overview of the science of PFAS testing and identifies emerging legal issues related to its use in litigation. PFAS are a family of chemicals within the broader class of organofluorides — organic compounds that contain a carbon-fluorine bond. There is, however, no universal agreement on which compounds qualify as PFAS.

Reliable testing is needed to support any PFAS claim, and there can be significant technical challenges. Effectively defending these claims requires a sophisticated understanding of the scientific and legal implications of different PFAS testing methodologies. Defense counsel should prepare carefully during litigation by vigorously pursuing expert discovery in order to pursue Rule 702 motions practice and, should trial remain necessary, stand ready to debunk plaintiffs’ claims through detailed and persuasive cross examination of plaintiffs’ expert witnesses.

PFAS testing can be challenging and difficult to implement reliably due to the multitude of individual compounds, many of which lack analytical standards or validated testing methodologies. Even validated testing approaches can become unreliable due to sample contamination, very low concentrations of target compounds, differing detection or quantification limits, or variability across laboratories.

As PFAS testing expands and litigation grows, attorneys defending PFAS claims must craft defense strategies with precision and scientific literacy. Although every case presents unique circumstances, attorneys who represent businesses potentially subject to PFAS claims should consider doing the following:

• Closely monitor PFAS-related statutes and regulations that may apply to clients and carefully consider the testing needed to ensure compliance.
• If PFAS claims arise, act quickly to retain qualified experts to help assess the science underlying the testing relied on by plaintiffs.
• When appropriate, challenge the sufficiency and reliability of testing to narrow or defeat claims based on an inadequate methodology, such as PFAS screener testing.
• Frame motions to dismiss based on inadequacies in the plaintiffs’ testing methodologies as standing issues, as well as merits issues, to increase the likelihood of the court addressing testing adequacy at that stage of the litigation.
• If PFAS claims do move past a motion to dismiss, continue to pursue the discovery needed to assess the reliability of the plaintiffs’ specific testing methodology.
• Advocate for the admissibility of PFAS testing conducted under properly validated sampling and testing protocols.
• With due concern for potential litigation risks, consider commissioning PFAS testing and, if doing so, tailor the testing to address specific issues in the litigation, since independent data can rebut the results of questionable testing or support theories of alternative causation, such as other possible sources of the PFAS compounds at issue.

Subscribers may access the full story at Law360.com.