As companies grapple with rising scrutiny over per- and polyfluoroalkyl substances (PFAS), Venable professionals convened to explore the growing litigation risks and mitigation strategies linked to these chemicals. The webinar, “From Litigation Trends to Mitigation Strategies,” featured in-depth commentary from partners Karen Firstenberg, Kathleen Hardway, Joo Webb, and Derek Smith—all members of Venable’s PFAS and Emerging Contaminants team.
The panelists laid out the multifaceted challenges facing companies that manufacture, use, or inadvertently come into contact with PFAS. “The scope of PFAS liability is vast and does not impact just PFAS manufacturers,” said Hardway. “Anyone who makes PFAS, uses PFAS, buys PFAS, sells PFAS, and touches PFAS” could face legal exposure. She cited recent lawsuits over consumer products like bandages and baby wipes, highlighting a rapid six-day window between a PFAS-related product study and the filing of a class action suit.
PFAS Litigation Landscape: Asbestos Parallels and Expanding Defendants
Hardway cautioned that PFAS litigation could rival or even surpass asbestos litigation in scope. “These chemicals have been used for decades and are ubiquitous in the products that we use, that we work with, and that we’re exposed to every day,” she said, adding that the CDC “estimates that nearly all Americans have some measurable PFAS in their bodies.” The resulting litigation includes not only personal injury claims but also consumer class actions, property damage suits, and environmental cleanup claims brought by public agencies. Hardway noted that product identification and medical causation challenges, among others, will likely be drivers in the litigation moving forward.
Although a few cases have been tried to verdict, most of those verdicts were 8-9 years ago. Hardway noted the science has evolved since then and therefore those verdicts may not be predictive of future outcomes. In the AFFF (aqueous film-forming foam) multidistrict litigation, the first personal injury bellwether case, which involves allegations of kidney cancer, is set to be tried beginning October 20. Additional trials involving claims of testicular cancer and ulcerative colitis may soon follow.
PFAS Risk Mitigation: Regulatory Compliance and Environmental Assessments
Panelists urged businesses to proactively assess their exposure and implement tailored mitigation plans, to avoid becoming targets of litigation. “Every company is different,” said Webb. “There really isn’t a one size fits all approach for addressing PFAS.” She encouraged companies to examine six key areas: regulatory obligations, contracts, environmental practices, R&D, employee safety, and product claims. For example, she advised caution with labels like “PFAS-free,” noting, “Statements like these have led to a rise in false advertising PFAS lawsuits.”
Derek Smith added that environmental site investigations are essential, especially regarding the historic use of firefighting foams. “Even if you had AFFF on site and we don’t identify a release…you should switch out AFFF if it contains PFAS,” he said. He emphasized the high costs of remediation, often in the 8- to 9-figures at and near contaminated sites. “We’re talking real dollars here,” Smith concluded, underlining the importance of early detection and planning.
As PFAS regulations and litigation evolve, businesses are increasingly seeking legal counsel to understand and reduce their liability exposure. With billions of dollars already in settlements and remediation costs on the horizon, Venable’s panelists made one message clear: The PFAS era demands proactive engagement.
To learn more about upcoming webinars or watch past recordings from our monthly series, Navigating PFAS: Legal Perspectives, click here. Learn more about Venable’s services and capabilities at our PFAS and Emerging Contaminants page.