On May 25th, Massachusetts filed suit against a number of companies alleged to have manufactured PFAS and/or aqueous film-forming foam.  Massachusetts joins a number of other states which have already brought similar claims.  Indeed, Massachusetts filed the case in South Carolina, where an existing multi-district litigation concerning PFAS is already in progress.

The complaint asserts a number of different claims, including trespass and nuisance, but its focus is really product liability.  FWIW, the MDL in South Carolina is captioned “In re Aqueous Film-Forming Foams (AFFF) Products Liability Litigation.”  Notwithstanding that the suit has been brought as a products liability case, the relief sought is right out of a standard CERCLA or state superfund law complaint.  Its first request for relief asks the Court to:

Find Defendants liable for all costs to investigate, clean up and remove, restore, treat, monitor, and otherwise respond to PFAS contamination resulting from Manufacturer Defendants’ AFFF Products so the contaminated natural resources are restored to their original condition, or are replaced by reasonably equivalent resources, and for all damages to compensate the residents of the Commonwealth for the lost use and value of these natural resources during all times of injury caused by PFAS and for such orders as may be necessary to provide full relief to address the threat of contamination to the Commonwealth….

And so, the question arises whether this case really is a product liability case or whether it is a Superfund case.  I think that one must look at the nature of the claim, rather than the relief sought, and so I do think that this is a products liability case. It’s thus more like the tort cases that have sought to impose liability on lead paint manufacturers than Superfund cases that have sought to impose liability on companies that utilized PCBs.

Still, that just begs the question.  Is the next wave of litigation going to be Superfund cases brought against the thousands – or tens of thousands! – of companies that utilized PFAS or PFAS-containing products in some way?  And if so, is that any way to structure a system to address sites contaminated with PFAS?

I know how I’d answer that question.

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