[A] federal judge has denied Saint-Gobain Performance Plastics’ attempt to throw out testimony from seven experts in a case brought by Bennington residents exposed to PFOA.
Judge Geoffrey Crawford of the U.S. District Court in Rutland issued a decision on Monday denying the company’s request to dismiss testimony from all experts, with the exception of part of an economist’s testimony.
In 2016, the state began investigating widespread PFOA contamination in the Bennington area, which officials now say was caused in large part by emissions from two former ChemFab plants.
A group of Bennington residents who filed a lawsuit that same year against Saint-Gobain Performance Plastics, current owner of the now defunct plants, seeking to have the company pay for property damages from groundwater contamination and long-term medical monitoring. One plaintiff’s drinking water well had 2,730 parts per trillion PFOA, according to a court filing, significantly higher than the state’s 20 ppt combined drinking water advisory.
Currently, there are seven plaintiffs named in the case, but that group is seeking to expand the lawsuit by obtaining class-action status for Bennington residents impacted by PFOA contamination. There would be one class for the thousands of residents who live in the “zone of contamination,” and a smaller class for Bennington area residents with elevated levels of the chemical in their blood.
Lawyers for the seven plaintiffs hired experts on PFOA contamination, health effects of PFOA exposure and economics to support their claims. Saint-Gobain sought to dismiss testimony from all the experts.
Emily Joselson, an attorney for the plaintiffs, said that the plaintiffs’ legal team was “gratified” that Crawford had denied most of Saint-Gobain’s motions to exclude the expert testimony.
“It’s enormously significant because Saint-Gobain was trying to eliminate the ability of every single one of our experts to testify at trial,” she said. “So if any one of them had been eliminated, it would have been challenging to prove all the elements of the case and all the aspects of damages that we’re seeking.”
Lia LoBello, senior communications manager for Saint-Gobain, stressed that Crawford’s ruling was on whether or not the plaintiffs’ expert testimony could be admitted into trial — not on the “the accuracy, credibility, or merits of the testimony being offered, which will be subject to cross examination.”
“It’s critical to note, however, that Judge Crawford also significantly limited the testimony of plaintiffs’ expert on a large component of the damages plaintiffs sought in this case,” she said.
The next major decision in the case will be on the plaintiffs’ request for class-action certification — something Saint-Gobain has intensely opposed.
The company’s latest effort to bolster its argument that Crawford should rule against class certification centers on Vermont Attorney General TJ Donovan’s recent lawsuits against PFOA manufacturers.
In a motion filed last week, Saint-Gobain argues that the lawsuits show the “ubiquity” of PFAS contamination throughout Vermont, with the state having specifically identified other sources of PFOA contamination in Bennington. State officials have previously said that emissions from the ChemFab plants bought by Saint-Gobain were the main source of groundwater and soil contamination in that region.
Saint-Gobain also argues in the motion that the attorney general’s actions show that the state “is willing and able to pursue collective remedies to address” issues stemming from PFOA contamination. Crawford granted Saint-Gobain’s request to file additional information to support these claims.
“The company has provided this information, as we believe it reinforces the individual issues at play in Vermont and further supports Saint-Gobain’s opposition of class certification,” said LoBello.
Joselson said that while it was too soon to say how Crawford’s next ruling would go, the tenor of the recent decision “seems to bode well” for granting the plaintiffs’ request for class certification.
“We’re cautiously optimistic, but we’ll obviously have to await the decision,” she said.
Chemfab operated in North Bennington from 1970 through 2000, when it was purchased by Saint-Gobain. The local facility, which applied coatings to fiberglass fabrics, closed in 2002.
This April, state officials announced a multi-million dollar settlement with Saint-Gobain to extend municipal water lines for Bennington residents who have wells contaminated by PFOA.
The C8 Science Panel, created by a class action lawsuit in West Virginia, linked PFOA exposure to six diseases, including two kinds of cancer. While PFOA and PFOS — two of the most toxic chemicals in the PFAS family — have been phased out by industry, the chemicals do not break down easily and so persist in the environment for years.
Rob McDougall, chief of the environmental protection division for the Vermont Attorney General, said that the AG’s office had been following the lawsuit brought by Bennington residents.
“We know that the citizen plaintiffs in Bennington are seeking remedies beyond what the state was seeking or could get in our settlement with Saint-Gobain that resulted in a clean drinking water remedy for Bennington,” he said. “The attorney general supports Vermonters pursuing their legal remedies.”
