PFOA suit plaintiffs must produce some medical records

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BENNINGTON — The judge in a proposed class-action suit over PFOA contamination of properties around the former ChemFab Corp. plants has partially allowed a defense request seeking medical records from the plaintiffs.

However, U.S. District Judge Geoffrey Crawford termed the request from the defendant firm, Saint-Gobain Performance Plastics, for 50 years of medical records "excessive," and reduced the scope to 20 years in a motion ruling last month in U.S. District Court in Rutland.

The suit was filed in May 2016 after widespread PFOA (perfluorooctanoic acid) contamination was detected in private wells and soil around two former ChemFab factories in Bennington. From 1968 through 2002 those factories coated fiberglass and other fabrics with Teflon.

PFOA was used in the manufacture of Teflon, and state officials believe the chemical spread through emissions from the factory stacks, settling in soils over a wide area and working its way into groundwater.

"We were not surprised by the judge's ruling," said Emily Joselson, of Langrock Sperry & Wool, of Middlebury, one of several attorneys from four firms representing the multiple plaintiff households.

Joselson said it's rare for a court to deny a defense request for medical records in a suit seeking medical-related damages, adding that she doesn't believe the ruling will have any negative impact on the suit. She said the plaintiffs' legal team was pleased that Crawford limited the discovery to release of 20 years of primary care physician records.

In this aspect of the suit, the plaintiffs are seeking the costs of long-term medical monitoring for those who drank PFOA-contaminated water and have learned through testing that they have elevated levels of the substance in their blood.

"If these [records] reveal any reasonable basis for a belief that other doctors or hospitals have information about potential exposure to toxins or treatment for conditions related to PFOA exposure, the defense may follow up with additional requests within the 20-year period," Crowford wrote in his decision.

The decision covers only named plaintiffs who drank PFOA-contaminated water and have elevated PFOA blood levels, and requires that they "shall answer interrogatories concerning all places they have received medical treatment and the condition for which they sought treatment in the last 20 years."

The plaintiffs also must answer questions about their employment during their lifetimes.

"It seems unlikely that a school teacher because contaminated with PFOA through her employment," the judge wrote. "A factory or construction worker may not be so fortunate. Defendant [Saint-Gobain] is entitled to seek disclosure of all employers over the course of the named plaintiff's work history and to request records from those employers which have some reasonable potential for being the source of exposure to PFOA."

Any workers' compensation claims involving those plaintiffs also must be submitted.

Asked Friday for a comment on the medical records aspect of the suit, Dina Pokedoff, the director of branding and communication for Saint-Gobain, stated in an email, "We believe the district court judge made the right decision in directing the plaintiffs to provide the records for the proposed class representatives."

She added, "This information is important as the court evaluates whether a class can be certified."

Seeking class certification

While the complaint now lists eight residents living within the designated contamination zone around the former ChemFab plants as plaintiffs, the suit also seeks class-action status to include an estimated 300 plaintiffs.

That aspect of the complex suit has yet to be certified by the judge. According to the trial schedule, a hearing on the contested question is set for March 2018. The trial itself is tentatively schedule to begin on Oct. 1.

The medical monitoring claim is only one of several being pressed against Saint-Gobain in the suit. The plaintiffs also seek damages concerning alleged negative effects on property values, and over trespass, nuisance and assault issues in the form of PFOA entering the soil and groundwater of plaintiffs' properties, PFOA entering residents' bodies through exposure to water or other methods, and emotional stress.

Saint-Gobain attorneys have denied the allegations and have listed multiple defense arguments against the claims.

Those include that the company didn't own Chem-Fab when all or most of the contamination occurred; that the business was following current state and federal guidelines in operating the plants; that the plaintiffs can't establish that there was a "significant concentration" of PFOA contamination to reasonably relate them to the alleged injuries; that the alleged negative effects on property values cannot be shown, and that a nuisance allegation requiring damages cannot be claimed under state law in this instance.

Concerning the proposed class action, attorney Mark Cheffo, of Quinn Emanuel Urquhart & Sullivan, of New York, one of the attorneys representing Saint-Gobain, previously argued that the residents' claims are too diverse to fit into a single class and should be pursued as individual lawsuits.

The medical monitoring aspect of the complaint focuses in part on Vermont Department of Health-organized blood testing of about 500 residents in the affected areas of town that found an average of 10.0 micrograms per liter of PFOA in blood. That compares to the estimated national average of 2.1 micrograms per liter.

Past medical studies involving PFOA exposure found a link to testicular and kidney cancers, thyroid disease, high cholesterol and ulcerated colitis, among other diseases and conditions.

The current suit is not directly focused on health effects from exposure to PFOA, only on the cost of the medical monitoring sought by the plaintiffs. However, individual suits are expected to follow in state courts to address those medical issues, attorneys have said.

In ongoing state-supervised testing of 570 local wells as of the spring, 276 were found to have PFOA levels above 20 parts per trillion, the state's advisory standard for safe drinking water.

ChemFab formed in Bennington in 1968 on Northside Drive site and moved to a North Bennington plant on Water Street in 1977. The buisness was acquired by Saint-Gobain in 2000, and the local operation was moved to New Hampshire in 2002.

Jim Therrien writes for New England Newspapers in Southern Vermont and VTDigger.org. @BB_therrien on Twitter.


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