The courtroom battles start Tuesday in what could be one of the biggest environmental damage trials in Minnesota history.
On one side, 3M Co. will admit that its chemicals have seeped into the drinking water of thousands of homes, but will argue that the trace amounts found never have hurt anyone, anywhere.
The legal strategy: Show me the damage.
On the other side are six Washington County residents who might represent a far larger group. They are suing 3M, arguing the company tainted their water, injured them physically and emotionally, and hurt their property values.
Their strategy: Show me the safety.
At stake, potentially, are hundreds of millions of dollars, the reputation of a respected Minnesota business colossus and the health concerns of more than 60,000 people living in or near Washington County.
In the world of environmental law, it doesn’t get much bigger than that.
“It’s against one of Minnesota’s biggest companies, and it is happening in an affluent community. It’s a very large case, and it could have huge effects,” said Kevin Reuther, an attorney with the Minnesota Center for Environmental Advocacy, which is not involved in the lawsuit.
No one can predict what damages might be awarded, if any, if the case goes to trial.
In a similar case in 2004, DuPont paid $300 million to settle a class-action lawsuit after residents of Ohio and West Virginia found trace amounts of chemicals in their water – the same chemicals now in Washington County water. The DuPont money went to remove the chemicals from the water supply and to screen residents for health problems. The case did not establish that the chemicals were harmful.
The same lawyers who worked on that case are teaming with lawyers from Alabama, West Virginia and Minnesota to represent the six residents of Oakdale and Lake Elmo: Terry and Pamela Maslowski, Gary and Karen Paulson, William Henry, and Bradley Krank.
Lawyers on either side wouldn’t talk about the case. They don’t have to – thousands of pages of Washington County court records are doing the talking. Those documents, along with several local experts on the environment and law, set the stage for the bare-knuckle legal fight ahead.
The opening round will come Tuesday, when a judge will hear arguments on whether the lawsuit should become a class action.
Washington County District Judge Mary Hannon could decide that only the six plaintiffs are eligible for any potential damages. Or she could decide that anyone who has consumed tainted water should be considered to be in the same legal class as the six who sued – and therefore be eligible for a share of anything that may come in the case.
The judge will make her decision in the next few months. The trial could start as soon as the fall.
The chemicals in the water are PFCs, or perfluorochemicals, which had been used since the 1940s to make products, including Teflon and Scotchgard stain repellant. PFCs were a $2.5 billion business in 2000, the plaintiffs’ lawyers wrote.
PFCs are found around the world. Almost indestructible in nature, the molecules have turned up in fish, birds and mammals.
The chemicals were dumped at Washington County landfills until 1975. Until then, the dumping was legal and normal, 3M lawyers said.
In 2004, residents of Oakdale and Lake Elmo learned two PFCs were in their drinking water – PFOA, or perfluorooctanoic acid, and PFOS, or perfluorooctane sulfonate.
Lawyers canvassed the area and found dozens of residents with far higher levels of PFC than is normal – 74 times higher, in the case of one child. It was, to them, like a smoking gun with 3M’s fingerprints on it.
3M as much as called this effort ambulance chasing. The plaintiffs’ lawyers “held inflammatory community meetings, mailed 25,000 letters, and went door-to-door, offering $50 to residents not yet their clients if they agreed to have their blood tested, and rounding up clients in the process,” the company wrote in legal papers.
If that description is accurate, it bothers Joe Anthony, a veteran of business law at the firm Anthony, Ostlund Bear in Minneapolis who is not involved in the 3M case.
“The courts are always conscious of lawyers representing the interests of the class and not acting like Barbary pirates shaking down corporations,” Anthony said. “I hate to say this about my brethren at the bar, but you have to wonder who they work for sometimes.”
The plaintiffs’ lawyers said they were gathering information about PFCs accumulating in people – something 3M has never done. They paid for the blood tests themselves, at roughly $500 per test.
But are PFCs harmful?
Yes, say the plaintiffs’ lawyers. Many tests on rats and monkeys show that mega-doses of PFCs cause birth defects, cancer, and liver and thyroid problems. They claim trace amounts of the PFCs could cause “sub-cellular damage” that takes years to lead to visible harm.
3M knew about the potential harm and covered it up in a “Herculean effort to keep the lid on this Pandora’s box,” the lawyers wrote. 3M is “rendering each of these residents an unwilling dump site for 3M’s PFC toxic wastes.”
No, says 3M, which seems confident about the lack of harm to humans. That’s because PFCs have been examined by thousands of safety studies – more than 1,500 of which were conducted by 3M alone. The conclusions: Huge doses may hurt animals, but small doses don’t hurt people.
3M studied the effects of high levels of PFCs in workers for 25 years in its Cottage Grove plant. No effects.
3M studied the babies of women who worked in the PFC plant in Decatur, Ala. No effects.
3M tested rats to see how much of the PFCs would be harmful. It found that people would have to be exposed to tremendous amounts of the substances to risk even the slightest effect. For example, in a February study of a related chemical – PFBA, or perfluorobutanoic acid – 3M officials concluded someone would have to drink 500,000 glasses a day of tainted Woodbury water to match the level found harmless in laboratory rats.
And 3M dismisses the idea of “sub-cellular” harm. “A glass of wine or an aspirin can cause sub-cellular changes in the liver,” 3M lawyers said. “Plaintiffs do not have any symptoms, plaintiffs are disease-free, and plaintiffs have not alleged a present, physical injury.”
3M’s argument is strong, said Grant Merit, former head of the Minnesota Pollution Control Agency and an attorney specializing in environmental lawsuits. He said it’s not enough to say the trace amount of pollutants might cause harm. For someone to be entitled to legal damages, there must be proof the contaminants did cause harm.
“If I were living over there, I would not drink the water,” he said. But harm from a single pollutant “is not an easy thing to prove. It’s tough to do in a jury case.”
Samuel Yamin, a public health scientist with the Minnesota Center for Environmental Advocacy, called a settlement like what was struck with DuPont – where the company paid to remove the chemical from water and screen residents – “a good investment.”
Yamin said society must decide whether the threat from each new pollutant is worth the money to eliminate it. If there is any doubt about safety, he said, it’s best to err on the side of caution.
“If it is within our means to remove it entirely, we should do it,” Yamin said, “and then we could all rest easy.”
3M has taken a number of voluntary steps. When PFOA and PFOS were discovered, it paid $6 million to filter the substances from Oakdale city water and to connect homeowners who had been using private wells to Lake Elmo city water lines. In January, trace amou
nts of the less-toxic PFBA were reported in a much wider area from Lake Elmo to Hastings – including areas potentially part of the class-action lawsuit.
A new study has the potential to disrupt the tidy arguments in the PFC lawsuit. A researcher at Johns Hopkins University claimed in February to have the first known study showing PFCs may harm people, not just animals. Dr. Lynn Goldman studied a group of babies born in Baltimore, all with PFCs in their umbilical blood. Babies with higher levels of PFCs had slightly lower birth weights and smaller skulls.
But 3M officials say they have tested pregnant women at “50 to 100 times” the amount of PFCs in the Goldman study and found no effects on their children. The Goldman study is too preliminary to cause Minnesota officials to change the level of PFCs considered acceptable in drinking water, Health Department spokesman Doug Schultz said.
The case will be shaped most directly by Hannon’s decision regarding whether to certify the case a class action. Plaintiffs’ lawyers say it will be better to try all potential cases at once. Otherwise, they said, individual cases could flood the court system for years.
That would be a huge victory for the plaintiffs.
“Once you get certified, you get into some potentially very big damages, with a company with very deep pockets,” Merit said. “It raises the ante.”
3M is arguing against class certification, saying no harm has occurred to the six plaintiffs or anyone else.
And if any harm had been done, the extent would vary greatly. “A plaintiff who has lived next to the Oakdale landfill for the last 35 years will have a much different case then a plaintiff who has lived 10 miles away for the last 18 months,” the 3M lawyers wrote.
Lawyers are advising the plaintiffs not to talk with reporters regarding the alleged emotional harm and damage to property values. But conversations with neighbors give an idea of the issues at stake.
“I can’t brush my teeth without feeling anxious,” said Kathy Kostohryz, who has been raising two children on drinking water from a private well in Lake Elmo, which was tainted by PFCs.
Kostohryz is not a plaintiff but is following the case. She said she might want to become part of the class action, if the lawsuit gains that status.
She takes fruit to work so she can wash it in the bathroom sink. “I think about it when I have a cup of coffee. I get nervous when my daughter takes a shower,” Kostohryz said.
Even though she now has been connected to Lake Elmo city water, she thinks her property value has suffered.
“I feel I have to protect my daughter first,” Kostohryz said. “And second, our investment.”