[B]ENNINGTON — The judge in a proposed class-action suit over PFOA contamination of properties around former ChemFab Corp. plants is giving the defense access to plaintiffs’ medical records.
However, District Judge Geoffrey Crawford termed the request from 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, or perfluorooctanoic acid, was detected in private wells and soil around two former ChemFab factories in Bennington, which from 1968 through 2002 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.
Saint-Gobain purchased the Bennington operation in 2000 and moved it to New Hampshire in 2002.
“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 to 20 years the disclosure of primary care physician records.
“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,” Crawford wrote in his decision.
The plaintiffs also must answer questions about their employment during their lifetimes.
Saint-Gobain can request records from employers that have some reasonable potential for being the source of exposure to PFOA, Crawford said.
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, said 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.”
“This information is important as the court evaluates whether a class can be certified,” she added.
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 question is set for March 2018. The trial itself is tentatively scheduled to begin Oct. 1.
The medical monitoring claim is only one of several being pressed against Saint-Gobain. The plaintiffs also seek damages for alleged negative effects on property values, and over trespass, nuisance and assault issues in the form of PFOA entering their properties and bodies, and emotional stress.
Saint-Gobain has denied the allegations and listed multiple arguments against the claims.
Those include that the company didn’t own ChemFab 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 there was a “significant concentration” of PFOA contamination to reasonably relate 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.
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 micrograms per liter of PFOA in their blood. The estimated national average is 2.1 micrograms per liter.
Past medical studies involving PFOA exposure found a link to testicular and kidney cancers, thyroid disease, high cholesterol and ulcerative 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 medical monitoring. 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 and moved to a North Bennington plant on Water Street in 1977.
