[R]UTLAND — Attorneys for a group of Bennington residents suing Saint-Gobain Performance Plastics over perfluorooctanoic acid (PFOA) contamination of their wells and property say they are pleased with the pretrial schedule released Thursday.
“The primary point from our perspective was that the court acted quickly on a discovery order, and we are anxious to begin,” said Emily Joselson, of Langrock Sperry & Wool, of Middlebury, one of several attorneys from four firms representing more than 160 households seeking to press a class-action suit against Saint-Gobain.
Joselson and other attorneys for the plaintiffs said Judge Geoffrey Crawford’s order followed a conference Wednesday in U.S. District Court in Rutland. The determination launches the discovery phase of the multi-faceted suit, setting a number of dates for required submissions or actions by the plaintiffs and/or defense team, leading to a trial date of Oct. 1, 2018.
“We were happy with the schedule,” said Patrick Bernal, of Woolmington, Campbell, Bernal & Bent, of Manchester. “This was fair and reasonably aggressive.”
David Silver, of Barr Sternberg Moss Silver & Munson, of Bennington, said the trial date is only slightly later than the plaintiffs had proposed. “Saint-Gobain had proposed no [trial] date,” he said.
The firm, which also has filed its second motion seeking dismissal of the suit — following rejection of a first dismissal motion in late December — seem to be pursuing a strategy of endless delay, the plaintiffs’ attorneys said.
“From our perspective, everything they are doing now, although they profess otherwise, is to delay the case,” Silver said, contending that the second motion to dismiss “is without any merit.”
Joselson and Bernal said the arguments in support of the firm’s current motion are similar to those that were rejected in a class-action suit earlier this week by a judge in federal court in Albany, N.Y., relating to PFOA contamination in Hoosick Falls, N.Y. That suit is filed against Saint-Gobain and Honeywell International over industrial sites that are the suspected source of the pollution.
“We were glad that the judge had come in [to the conference] having read the decision [in the New York suit],” Joselson said.
“We were heartened that Judge Crawford is taking such an interest in the case,” Bernal said. “It is an important case.”
Joselson said Thursday that Saint-Gobain argued in its first dismissal motion that the suit should be stayed while it mounted an ongoing challenge in Environmental Court to Vermont’s recently set PFOA level of 20 parts per trillion for safe drinking water.
Now, she said, one of the arguments put forth is that the plaintiffs haven’t stated a claim upon which relief can be granted, which the plaintiffs’ attorneys view as essentially a delaying tactic.
Joselson, along with Gary Davis, of Davis & Whitlock, of Asheville, N.C., took the lead in representing the plaintiffs during the conference Wednesday.
The company is represented by attorneys from Quinn Emanuel Urquhart & Sullivan, of New York City, and Downs Rachlin Martin, of Brattleboro. Mark Cheffo, of the New York firm said Friday that the conference resulted in a fairly typical pretrial schedule and he raised no objections.
Cheffo added that Saint-Gobain “absolutely doesn’t intend to slow down or delay” the progress of the suit, and the company looks forward to having its side heard in court.
The plaintiffs’ attorneys stressed that, while many people might believe October 2018 is a long time to wait for trial, such a class-action effort requires at least that much time, and will require a ruling by the judge on whether the action should be certified as a class-action suit.
Currently, the suit is being pressed by four named plaintiffs from the area of contamination designated by the state, but other households are being signed up for possible participation in a class-action effort. The plaintiffs’ attorneys said anyone who might want to join the suit should contact one of the firms to learn whether they qualify and what the process involves.
The focus of this suit is on damages concerning alleged negative effects on property values; trespass, nuisance and assault issues in the form of PFOA entering the soil and groundwater of plaintiff properties; PFOA entering residents’ bodies through exposure to water or other methods, and emotional stress.
Also cited is the expense of any required medical testing and monitoring, and the costs of filtering of well water supplies and other interim measures to address the problems created, along with the cost of permanently addressing the contamination, such as through extension of town water lines to affected properties.
The suit is not focused on any health effects from exposure to PFOA, which was determined to be related primarily to drinking contaminated well water. However, individual suits are expected to follow in state courts to address those issues.
The trial schedule as posted by the judge Thursday includes having initial disclosures on class-action certification by Feb. 13 and initial disclosures on the merits of the suit by March 13.
Other dates are set for disclosure of expert witness reports on class certification, Aug. 1, and for the plaintiffs’ motion for class certification, Oct. 1.
A hearing on the question of class certification is set for March 2018.
Discovery matters concerning the merits of the suit follow a schedule from Sept. 1 through June 1, 2018, leading toward the Oct. 1 trial date.
While preparation for the trial continues, efforts toward a possible mediated settlement also will be ongoing. Such a process is required and involves appointment of a neutral evaluator and scheduled meetings between the parties.
The suit was filed in May 2016, after PFOA was found throughout the area around the former ChemFab factory building in North Bennington, which the France-based firm purchased in 2000. The ChemFab plant, which used PFOA in its products, is considered by state environmental officials to be the source of the contamination in wells and soil.
The state responded in the spring 2016 by ordering testing of wells and soil. That testing followed discovery of similar PFOA contamination in Hoosick Falls, and Petersburgh, N.Y.
ChemFab operated in North Bennington from 1970 through 2000, when it was purchased by Saint-Gobain, which shut down the operation two years later and moved it to a New Hampshire plant.
PFOA was used nationally in the manufacture of Teflon, and used in products like nonstick cookware, stain-resistant carpets and fabrics, water repellent clothing, paper and cardboard food packaging. The chemical has been detected in a number of states in apparent connection to manufacturing facilities.
Medical studies have found suspected links to testicular and kidney cancers, thyroid disease, high cholesterol and ulcerated colitis, among other diseases or conditions, and Vermont health officials have conducted blood-draw clinics to test nearly 500 Bennington area residents to determine the levels of PFOA in their blood.
Environmental officials, meanwhile, have tested wells for PFOA. Currently, the company is paying for carbon filtering systems at contaminated well sites and has paid for bottled water, but no agreement has been announced over whether the firm will pay to extend the Bennington water lines to provide safe drinking water on a long-term basis. That cost is estimated at more than $30 million.
