PFOA suit parties working toward a settlement - and preparing for trial
BENNINGTON — There is a "settlement conference" scheduled for Jan. 21 in the suit filed by town residents against Saint-Gobain Performance Plastics over PFOA contamination, but that doesn't necessarily mean a resolution is imminent.
That also doesn't mean the class-action suit filed in U.S. District Court in May 2016 definitely won't be resolved early next year prior to a trial.
At this point, no date for a trial start has been set in the suit over perfluorooctanoic acid contamination of soil and wells around two former ChemFab Corp. factories in Bennington, for which Saint-Gobain is considered by the state to be the responsible party.
Scheduling a conference in January apparently continues efforts by Judge Geoffrey Crawford to encourage the parties to argue the remaining pretrial issues and prepare for a trial, while simultaneously considering a reasonable settlement.
The most prominent issue at this point is whether long-term medical monitoring of persons exposed to PFOA can be ordered under current Vermont law, and both sides have addressed that issue in recent briefs filed in the suit.
As part of that process, Saint-Gobain attorneys have filed for a summary judgment on the medical monitoring question and other aspects of the suit, and the plaintiffs' attorneys responded this week, contesting the company's arguments concerning its summary judgment request.
"At the court's direction, the parties are presently engaged in resolving by motion whether the plaintiffs' proposed remedy of medical monitoring is available as a matter of Vermont law in general, and in particular whether it is available based on the factual record in this case," said Emily J. Joselson, of Langrock Sperry & Wool, of Middlebury, one of several attorneys representing the residents.
She added in an email, "As a result of the evidentiary hearings in April, the court issued a ruling on [Saint-Gobain's] Daubert motion, and a ruling on plaintiffs' motion for class certification. [Crawford] denied defendant's Daubert motion, allowing plaintiffs' experts to testify at trial, except with respect to a portion of the proposed testimony of one expert."
Saint-Gobain's legal team had earlier filed a motion seeking to deny or restrict testimony at trial of the experts the plaintiffs plan to call to the stand.
A Daubert motion refers to federal rules of evidence stemming from precedent-setting U.S. Supreme Court cases pertaining to that type of pretrial challenge.
"The court granted plaintiffs' motion for class certification, which allows for the efficient presentation of evidence on a group-wide basis," Joselson continued.
"During the April hearing," she said, "the court also encouraged both parties to continue their pre-trial preparation, while at the same time considering all reasonable avenues to resolution short of trial. To that end, the court scheduled a conference to continue that discussion on January 21, 2020, and the attorneys for both parties will attend that conference in good faith."
Asked last week to comment on the prospects for a settlement, Saint-Gobain spokeswoman Dina Pokedoff said in an email, "Our views on the various legal issues relating to this case are documented in our recent public filings. In regards to the upcoming conference date, out of deference and respect for the court, we will reserve further comment until our upcoming court date in January."
In certifying in August the suit as a class action, Crawford said 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."
The ruling on class certification was appealed to the Second Circuit U.S. Court of Appeals, a Saint-Gobain spokeswoman said after the decision was issued. Such an appeal will first have to be accepted for a ruling by the appeals court.
The plaintiffs seek the costs of continued medical monitoring for those residents of the state-identified contamination zone who were determined through blood tests to have elevated PFOA levels, most likely due to consuming contaminated well water.
Elevated PFOA blood levels have been associated with testicular and kidney cancers, thyroid disease, high cholesterol and ulcerated colitis, among other diseases and conditions.
Damages on behalf of property owners in the 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 PFOA contamination.
In his decision on class action, Crawford said the contamination zone has been described as an oval-shaped area around the former ChemFab factories on Northside Drive in Bennington and on Water Street in North Bennington, encompassing some 15 to 20 square miles.
Crawford wrote that of 600 Bennington wells tested, two-thirds were found to have what are considered elevated levels of PFOA.
Saint-Gobain acquired ChemFab in 2000 and closed the local operation in 2002, moving that to a Merrimack, New Hampshire, site. After beginning on Northside Drive in 1968, ChemFab coated materials — primarily fiberglass fabrics — with liquid Teflon, which was manufactured using PFOA.
State environmental officials determined that most of the contamination was spread through the air from factory exhaust stacks as the fabrics were coated and dried at high temperature.
The pollution of soils and groundwater was discovered in early 2016, after well water tests were conducted in light of similar contamination of water supplies detected around factories in nearby Hoosick Falls and Petersburgh, New York.
Many of those residents with wells in the contamination zone are or have been connected to new municipal water lines funded primarily by Saint-Gobain over the past two years. The company has 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 other costs to the state incurred in dealing with the contamination.
The company also is funding well replacements, long-term filtering or other alternatives to provide clean drinking water to residents for whom connection to a municipal waterline is not feasible from an engineering perspective.
Those agreements with the state are separate from the private class-action lawsuit in U.S. District Court in Rutland.
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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