Cancer has forever altered the life of 56-year-old Michael Kiser, a Wilmington resident, husband and father of two daughters.
In 2011, Kiser was diagnosed with colon cancer. He was hospitalized again in 2015, when doctors found a tumor Kiser described as the size of a baby’s head; it was stomach cancer, he said. Kiser has since become too sick to work and has had to pay tens of thousands of dollars out of pocket for medical expenses and on lengthy road trips to the doctor.
So when it hit headlines last summer that GenX, an unregulated chemical discharged as part of The Chemours Co. operations in Fayetteville, was found in the treated drinking water of Cape Fear-area residents, Kiser began to do some research.
“I almost died,” Kiser said. “I definitely think that these chemicals – that’s what caused my cancer. And that’s why I contacted [lawyers] and wanted to find out more about the situation.”
Kiser is one of four plaintiffs in consolidated toxic tort cases, proposed as a class action, filed in U.S. District Court in the Eastern District of North Carolina on Jan. 31. That filing combined several federal court cases since October that name Chemours, a 2015 spinoff of DuPont, as the defendant.
Advertisements from law firms that have represented class action and environmental cases began to show up soon after the issue surrounding GenX, and other related chemicals found in the Cape Fear River, began to take shape in North Carolina. GenX, while not regulated by the EPA, has shown to cause illness in animals, including pancreas, liver and testicular cancer, according to the N.C. Department of Health and Human Services. The department has since established a heath goal of 140 parts per trillion for the chemical. There are no studies, however, regarding the human health effects of GenX, according to the agency.
Kiser is a client that responded to law firm advertisement efforts, and he is being represented by Washington, D.C.-based Cohen Milstein Sellers & Toll PLLC, which has several offices nationwide including in Raleigh.
The 46-page consolidated class action complaint alleges that Chemours knew that dumping GenX, and other related chemicals, into the Cape Fear River was wrong. It also states that the company knowingly “lied to government regulators” about how they were disposing of the chemicals and claims Chemours knew the chemicals were “dangerous” and of their health effects.
Three people with health issues are named in the case, which alleges their ailments are related to those known chemical health effects. It also claims the chemicals have contaminated both water and air, causing a larger scope of personal injury to Cape Fear residents and damages to property and businesses.
Attorneys representing Wilmington, Delaware-based Chemours have since filed a motion to dismiss the proposed class action case. Attempts to reach both Dupont and Chemours for further comment about the litigation in federal court were not returned as of press time.
In the motion, the company denies the accusations of deception and misconduct. The company claims that the lawsuit does not allege that GenX or any other chemical actually caused the plaintiff ’s ailments, dismissing the claims as “theoretical health concerns.” It also claims that the allegations regarding property damages based on a provisional health goal for GenX are not an enforceable standard and its exceedance does not establish injury.
The court has not yet ruled whether the matter will be certified as a class action case.
A class action is a lawsuit that allows one or more plaintiffs with similar claims and injuries to sue a defendant and prosecute on behalf of a larger group or class.
Ted Leopold of Cohen Milstein was appointed in January by a federal judge as co-council in the proposed class action case. Leopold is also co-lead counsel in a class action brought by Flint, Michigan, residents against Gov. Rick Snyder, 17 local government officials, the city of Flint and a group of engineering companies over the contamination of the Flint water supply.
In the Wilmington case, Leopold is working along with Stephen Morrissey of Susman Godfrey LLP in Seattle, Washington, who was also appointed co-lead in the case.
Kiser and other named plaintiffs have a very important role to play as representatives of the class, Leopold said.
“Their involvement will be essential … because they are acting and sitting in the shoes of the entire class and to make sure they act in the best interest of that class,” Leopold said.
The attorneys litigate and represent the class on behalf of the individuals and work on a contingency basis, he said, adding that there are no out-of-pocket costs to the class representatives or any members of the class.
“They are certainly not cheap cases to litigate,” Leopold said of class actions. “They are time intensive and cost-intensive.”
Attorneys can spend years on environmental cases like these before they see their day in trial, if at all. Cohen Milstein filed a response to the defendant’s motion to dismiss on April 13, laying out the reasons the case should be allowed to proceed. A ruling on just that motion can take weeks or months, he said.
But the pending ruling is not stopping attorneys from working on the case. Discovery could begin to take shape in the meantime, alongside other lawsuits against Chemours.
Coordination among law firms pursuing cases against Chemours is happening in the discovery process, Leopold said.
The proposed class action and other federal cases represent various approaches law firms are taking in litigations against Chemours, said Scott Summy, an attorney with Dallas- based Baron & Budd PC, who is representing private well owners near the Fayetteville Works Facility in a separate civil case in federal court.
Summy has handled drinking water cases before, and in the 1990s, filed an environmental lawsuit against oil company Conoco Inc. on behalf of Wilmington residents. That case was settled for millions in 1997.
The well owners’ lawsuit alleges that the properties, including groundwater, have been contaminated by GenX and other related chemicals.
The law firm also represents Brunswick County, Wrightsville Beach and Lower Cape Fear Water & Sewer Authority in lawsuits against Chemours. The firm is pursuing these legal actions to recover costs required to investigate, manage, reduce and remove chemicals from drinking water drawn from the river. Those cases, as well as the well owners’ lawsuit, are not class action cases, Summy said.
All of the cases related to the Chemours facility will be consolidated in one court as standard procedure, Summy said. The Cape Fear Public Utility Authority has also filed a lawsuit in federal court.
Legal battle with a fortune 500
Anytime a firm has a complex environmental case, like the ones being pursued against Chemours, it’s difficult because the firms are dealing with “rich corporations,” Summy said.
“Once we work our way through the court system and we get to a point where we can discover what went on at that plant … we feel like we’re going to get some real traction because this is one of these stories that paints an ugly picture about making money to the detriment of everybody else,” Summy said.
Addressing the class action case, Leopold said such cases are highly contested and litigated.
“Chemours and Dupont have excellent attorneys … they have unlimited funds to defend these cases,” he said. “They litigate them and defend them very vigorously.”
Leopold added that while it’s the company’s right to defend cases, it’s also the job of plaintiffs’ attorneys to seek “the truth.”
“That’s one of the beauties of our judicial system … everybody, once we get into court, is on a level playing field,” he said.
Last year, DuPont and Chemours agreed to pay $671 million to settle a class action case involving PFOA, or C8, which was replaced by GenX in 2009, and personal injury claims related to drinking water in Ohio.
The litigation, however, is not having much impact on the company’s stock price.
When Chemours spun out of DuPont in 2015, it had debt and potential legal liabilities. Its stock dropped more than 80 percent to less than $4 per share by January 2016 on fears the company would not survive.
However, Chemours turned itself around, sending its stock soaring to $57 by October 2017. Sales grew to the point where the company was added to the Fortune 500 list last year. It ended 2017 with revenue of $6.2 billion, up 15 percent from the previous year and net income of $746 million.
In Chemours’ fourth-quarter earnings call, Mark Vergnano, president and CEO of the company, addressed litigation issues in North Carolina involving GenX and said the company is taking the matter “very seriously.”
“We hear the community and the concerns in North Carolina and we are absolutely committed to working closely with all the authorities to respond to those … We’re working very hard and sharing data with regulators of both states [including Ohio] and federal and local inquiries that occur,” he said. “And we are really trying to find a solution that addresses all the full scope of these issues … we continue to believe that none of these discharges, either before we became an independent company in mid-2015 or after, have adversely impacted anyone’s health.”
Whatever the outcome of current litigation, Summy said, “I think it’s going to be a very interesting case that has major ripple effects, and it’s going to be one to definitely watch with a keen eye and see what happens.”
Leopold said this case, as well as the Flint water case, are representative of the “importance of individuals being protected and not having their rights intruded upon by corporations [like] Dupont and Chemours, putting profits over the health of individuals.”
“These types of litigations are very important in light of today’s environment where the EPA is on the side of big business in doing away with all these important regulations protecting the environment and individuals,” Leopold added. “And it’s even more important, I believe at this point in time, for these types of litigations to go forward in order to provide the ability of individuals, who are not only property owners to protect their properties … but most importantly the severe and significant threats to their health.”
As a plaintiff in the class action case, Kiser said he hopes the outcome will be that the company is held accountable not only for his situation but for others as well, including future victims, he said.
“I hope, if it’s proven that they in fact did this, after … they knew that it caused cancer in laboratory rats, if after having that research and they continued to discharge that poison into our water system, and if it in fact, caused me to get this cancer and changed my life like it did, and put me through the hell I go through every day, then they need to be held accountable and they need to pay,” Kiser said.
• STATE COMPLAINT: The N.C. Department of Environmental Quality on April 9 filed an amended complaint and motion for preliminary injunctive relief against The Chemours Company in Bladen County Superior Court. With the legal action, the state aims to require Chemours to control air emissions of GenX compounds; remove, treat or control all other sources of GenX compounds; and provide a full accounting of any process wastewater discharge through a drainage ditch at the site. The action expands the scope of a Sept. 7 complaint filed by the agency.
Recent News Related to GenX
• FUNDING REQUEST: On April 10, Gov. Roy Cooper shared his budget recommendations to address emerging contaminants like GenX. He recommended $14.5 million for the state Department of Environmental Quality and Department of Health and Human Services for water quality sampling and testing; funding scientific equipment and lab analysts; transform the industrial permitting process; planning for needed lab upgrades and additional health experts in environmental epidemiology.
• CONTAMINATION STUDY: The National Defense Authorization Act for Fiscal Year 2018 signed into law in December includes direction to federal agencies to study human health impacts from PFAS contamination in water. The study is to be completed by December 2023. PFAS, or perfluoroalkyl and polyfluoroalkyl substances, are a class of chemicals that includes GenX.
• EPA NATIONAL SUMMIT: The EPA will hold a national summit in Washington, D.C. on PFAS May 22-23. Following the summit, EPA will travel to states with communities impacted by PFAS to further engage on ways the agency can best support the work that’s
being done at state, local and