Judge OK's class action status in PFOA suit

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BENNINGTON — Residents seeking damages over PFOA contamination of groundwater in an area around former ChemFab Corp. plants in Bennington have won another round in their suit against Saint-Gobain Performance Plastics.

U.S. District Court Judge Geoffrey Crawford has ruled that the suit can go forward as a class action. Property owners who qualify for a defined class can now join together, rather than try to take on the international firm in individual suits.

Emily Joselson, of Langrock Sperry & Wool, of Middlebury, one of the attorneys representing the plaintiffs, said they were gratified that the court has recognized the strengths of the case being presented.

"We think the evidence has always been very strong," she said.

The suit contends that the contamination was released through factory stacks as part of a manufacturing process. ChemFab, which Saint-Gobain acquired in 2000, coated fabrics with liquid Teflon at the local plants for more than 30 years, ending in 2002 when those operations were moved to New Hampshire.

Currently, there are nine named plaintiffs in the suit, which was filed in May 2016 in U.S. District Court in Rutland, shortly after elevated levels of PFOA (perfluorooctanoic acid) was detected in about 400 wells around the former factories. However, hundreds more property owners and/or individuals in a state-identified contamination zone could potentially join a class-action suit.

In his decision, Crawford said the state-identified zone has been described as an oval shaped area around the factories on Northside Drive in Bennington and later on Water Street in North Bennington and encompassing some 15 to 20 square miles.

"This decision, certifying the case as a class action, means that the people of Bennington and North Bennington will be able to prove — on a class-wide basis — that Saint-Gobain's air discharges of PFOA over more than three decades resulted in the widespread contamination of their groundwater, their properties, and their bodies," Joselson said. "This is crucially important, as any one individual could not muster the resources necessary to prove the liability of a major corporation, but a class of people acting together can."

Series of decisions

The ruling on Friday was the latest to favor or generally favor the plaintiffs, who are represented by a team of attorneys from four law firms.

Other decisions [https://www.benningtonbanner.com/stories/second-saint-gobain-bid-to-exclude-testimony-denied,580859] involved two motions from the company to have the suit dismissed and recent decisions to allow at trial most of the expert witnesses the plaintiffs said they intend to call.

But other pretrial issues remain, including whether Crawford's decision on class action can be appealed to the Second Circuit U.S. Court of Appeals, an appeal that would first have to be accepted by that court.

"Saint-Gobain plans to invoke its right to appeal to the Second Circuit, and seek review of the order issued on Friday," Lia LoBello senior communications manager at Saint-Gobain, said in an email, referring to Crawford's approval of class action status.

In addition, Crawford said in his decision that he plans to rule before trial on whether medical monitoring claims can be allowed under Vermont law.

There is in the first case an issue of "whether the remedy is available at all," the judge wrote. "This is a legal issue. The second is whether the record in this case, viewed in the light most favorable to the plaintiffs, would support an order requiring medical monitoring in some form."

In one aspect of the suit, the plaintiffs seek the costs of continued medical monitoring for those residents of the zone who were determined through blood tests to have elevated PFOA levels, most likely due to consuming contaminated water.

Elevated PFOA blood levels have been associated through studies with testicular and kidney cancers, thyroid disease, high cholesterol and ulcerated colitis, among other diseases and conditions.

State Sens. Dick Sears and Brian Campion, both Bennington district Democrats, have twice proposed medical monitoring legislation that passed the House and Senate but was ultimately vetoed by Gov. Phil Scott, who said he fears it will have a negative effect on industry in Vermont.

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In a joint statement issued Monday, the two senators said, "We think it's safe to say we are pleased with the direction of Judge Crawford's rulings thus far, and we are hopeful that he rules positively on the medical monitoring portion of the suit, which is so important to our constituents and was unfortunately vetoed by Governor Scott.

Damages on behalf of property owners in the contamination zone also are being sought, such as over diminished property value, the loss of drinking water from a private well; the cost of having to pay for municipal water; nuisance claims over the disruption of lives and property, and other damages related to the contamination.

Many of those in the contamination zone are being connected to new municipal water lines funded primarily by Saint-Gobain over the past two years. The company agreed to provide more than $40 million in two consent agreements with the Vermont Agency of Natural Resources to cover the water line construction and hookups and other costs to the state incurred in dealing with the contamination.

Not all residents in the zone with contaminated well water will be connected to water lines due to engineering factors. Those will continue using carbon filtering systems funded by the company or could receive a newly drilled and/or relined well shaft to replace a contaminated one.

Hearings possible

Joselson said that, if the remaining pretrial issues are resolved and the suit goes to trial, a jury would likely focus on both the property issues and medical monitoring claims and whether Saint-Gobain is liable for the contamination.

If the company is deemed liable, she said it is possible each of the property owner plaintiffs would have a "mini-hearing" to press their individual property-related claims.

She added that the experiences of the current plaintiff group reflect a range that includes such differences as varying negative effects on property valuation, whether a resident ultimately received town water but lost a private well and now has to pay water bills, or had to continue with a filtering system; or others in a range of economic effects related to the contamination.

If long-term medical monitoring claims are allowed, that process would likely have to be worked out through the court, dealing with such issues as what medical tests should be included or excluded.

Company arguments

Among arguments pressed by Saint-Gobain's attorneys are that the amount of contamination that was released by the factories over 30 years was much lower than the amounts the plaintiffs' experts determined, and that there are other possible sources of PFOA contamination in the general environment and from other regional facilities.

The chemical was used industrially worldwide for decades in a variety of consumer and other products, and PFOA in the atmosphere is believed to spread widely beyond specific manufacturing sites.

The company's engineering experts contended "background" or common levels of PFOA, as well as other factories in the area and a former Bennington landfill site on Houghton Lane also contributed to the level found in the contamination zone.

The plaintiffs and state environmental officials contend the amount of PFOA emanating from the ChemFab stacks was overwhelmingly the cause of the contamination of soils and eventually groundwater and wells.

Another attorney working with the plaintiffs, David Silver, of Barr, Sternberg, Moss, Silver & Munson, said Monday of the judge's ruling, "I am very pleased with this. I'm pleased because of what happened to my community and to members of my community, who have been seriously damaged by contamination of their soils and wells."

He added, "They are upset and anxious and have concerns because they and their families had been drinking this poison for years."

In his 36-page ruling, Crawford said that of 600 wells tested, two thirds were found to have what are considered elevated levels of PFOA.

Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien


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