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Federal judge in SC wades through lawsuits about toxic firefighting foam used at military sites

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Air Force firefighters spray foam on an engine and the fuselage of an Air Force C5 Galaxy cargo plane that crashed carrying 17 people just short of a runway at Dover Air Force Base Monday, April 3, 2006 in Dover, Del. The military cargo plane headed for Spain developed problems after takeoff and crashed trying to return to Dover Air Force Base early Monday, military officials said. All 17 people aboard survived, though several were injured. (AP Photo/Chris Gardner)

A federal judge in South Carolina is taking a crash course on the medical and environmental science surrounding a toxic firefighting foam, as military bases and other sites throughout the country continue to test positive for the chemical-laden product. 

U.S. District Judge Richard Gergel was tasked earlier this year with wrangling a huge number of lawsuits related to the suppressant, which was used for decades to put out fuel fires at military installations, civilian airports and petroleum manufacturing sites.

The number of cases involving the foam now stands at more than 120 separate lawsuits. They seek to hold the manufacturers of that product — including 3M, an American manufacturing giant — responsible for the toxic chemicals in the foam that leached into soil, drinking water and people's blood streams. 

The foams contained chemicals known as perfluoroalkyl and polyfluoroalkyl substances — PFAS for short. Those compounds continue to be scrutinized for potential links to thyroid disease, immune problems, pregnancy complications and kidney and testicular cancers.

Earlier this month, the judge got a taste of how complicated and controversial the cases are likely to be. He ordered the lawyers in the lawsuits to bring six expert witnesses into federal court in Charleston to brief him on the firefighting foams and PFAS chemicals. The testimony won't be used as evidence in the future. It was simply meant to serve as a tutorial for the federal judge. 

Gergel wanted the witnesses to help him understand some of the basic questions involved in the lawsuits: How have PFAS chemicals been regulated? Can they be cleaned up once they enter the environment? And what happens to people who consume water laced with the industrial compounds? 

"What I really want to know is the underlying science," Gergel said opening the hearing on Oct. 4. "What do we agree on? What don't we agree on? What do we know? What do we not know?" 

The six experts recognized the chemicals were difficult to remove from soil and water once they were released. The chemicals, they acknowledged, are proven to accumulate in people's blood streams and can remain in the human body for years. 

And they seemingly agreed that the number of military bases, industrial facilities and drinking water systems shown to contain the compounds is likely to expand in the coming years. 

"This is a national issue, and we are going to find far more sites as we go along," said Christopher Higgins, a professor at the Colorado School of Mines, who testified about how the chemicals don't break down in the environment. 

The answers to other questions varied based on which witnesses Gergel interrogated. The sharpest divide was over what threat the chemicals posed to human health. 

The experts testifying on behalf of the individuals, cities, states and water utilities that sued over the firefighting foams provided one opinion. They said medical scientists are still working to determine the effects of the chemicals in humans. But the growing body of evidence, they said, is enough to warrant public advisories and regulations for the chemicals in drinking water. 

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Two of those witnesses cited an epidemiological study of roughly 70,000 people who were exposed to PFAS chemicals by a DuPont manufacturing plant in West Virginia. They also pointed to the growing number of peer-reviewed studies on the health outcomes of rats and other animals exposed to the chemicals. 

"I would want to limit the human population to as little of this substance as possible," said Dr. Robert Bahnson, a urologist who treated cancer patients who were exposed to the chemicals in West Virginia. 

A witness for 3M, Tyco Fire Products, Chemguard Inc. and the other corporate defendants explained to Gergel that its nearly impossible to prove someone was injured after drinking small quantities of the chemicals. 

Dr. Philip Guzelian, a retired professor from the University of Colorado, argued the animal studies can't prove the chemicals cause cancer, thyroid disorders or immunological problems. He said the medical research on PFAS chemicals is too "inconsistent" or "sparse" to reach a conclusion that it caused someone's kidney cancer, for instance. 

Gergel, who was appointed to the federal bench in 2010, said in a "perfect world" the lawsuits over the firefighting foam wouldn't be litigated until the science was settled. But that's not how the country's judicial system works, he said. 

It could be up to federal jurors to decide whether there is enough evidence to suggest the people who drank water contaminated with PFAS chemicals suffered negative health outcomes.

Federal juries already awarded multi-million dollar verdicts in similar lawsuits to the people who drank PFAS chemicals released from the DuPont factory in West Virginia. And some of the same attorneys who litigated those cases are pushing the cases that were moved to South Carolina. 

More than 50 of the lawsuits that Gergel is handling involve claims of personal injury by individuals who believe their health suffered as a result of exposure to the chemicals. Another 32 cases are also calling for the 3M and the other defendants to pay for medical monitoring of communities who drank water laced with the chemicals.  

Those cases are likely to be some of the more difficult to resolve. But the trials aren't expected any time soon. It could be more than a year before the attorneys even finish their discovery in the lawsuits. 

Meanwhile, Gergel expects he will continue to receive lessons about the latest research on PFAS chemicals, which are now being investigated by researchers all over the country. 

"In this litigation, I think we are going to learn a lot as we go along," Gergel said. 

Reach Andrew Brown at 843-708-1830 or follow him on Twitter @andy_ed_brown.

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