Fluoride Action Network

Minnesota: 3M water suit goes to trial trimmed

Source: Pioneer Press | May 4th, 2009 | By Bob Shaw
Industry type: Perfluorinated chemicals

After five years, it comes down to this.

The 3M Co. pollution case — at least, what’s left of it — staggers into court today.

Dozens of lawyers have been working since 2005 for this day, the start of a jury trial expected to last eight weeks.

Chemicals found in Washington County drinking water have cost the company more than $56 million in cleanup costs, and the current lawsuit could boost that by millions.

But as big as the lawsuit is, it is a puny version of what it could have been.

At one point, it had the potential of being one of the largest environmental lawsuits in state history.

To some lawyers, it looked like a simple case. There is no dispute that 3M made the chemicals and dumped them in landfills over several decades. No one denies that the chemicals leached into groundwater, where they were consumed by 68,000 Washington County residents.

The impact, many of the water drinkers said, ranged from lethal cases of cancer to minor skin rashes.

The settlement could have been enormous. The chemicals were identical to those in a 2005 case in Ohio that cost the DuPont Corp. $300 million — excluding any claim for injury to anyone.

But over the past five years, the powerful case against 3M has deteriorated.

Lawyers for the company and the handful of plaintiffs would not comment for this story. However, a review of court records and years of news reports, plus new interviews with experts, tell a tale of science, fear and money, the next chapter of which starts today in a Stillwater courtroom.


The initial tipoff came from 3M itself.

In 2004, 3M alerted state officials to check the level of PFCs — perfluorochemicals — in the drinking water of Lake Elmo and Oakdale.

3M had manufactured PFCs since 1947. They were used for making Teflon, Scotchgard stain repellant and fire-extinguishing foam.

PFCs were an enormous success, with PFC products providing more than $2.5 billion in sales in 2000, according to a court document.

But warning signs about PFCs were emerging.

Scientists had discovered traces of PFCs around the world in fish, animals and humans. The material was slow to break down and accumulated in living bodies. In large doses, it caused cancer, thyroid problems and birth defects in mice.

The company asked the state to check the drinking water around landfills where it had dumped PFCs legally, ending in the 1970s.

Bingo. They found traces of PFCs.

An alarm went out. Officials weren’t sure how dangerous this mysterious chemical could be. Homeowners were warned: Don’t drink the water.

The company responded. It paid $10 million to install a filter for Oakdale’s drinking water and connect some Lake Elmo homes to city water. It poured millions into state agencies to help test for the chemicals.

Crisis averted.

The episode seemed like a small chemical spill, successfully contained.

3M officials breathed a sigh of relief.


Then, the potential for the lawsuit against 3M surged — in three stages.

In February 2005, four lawyers began knocking on doors in Oakdale and Lake Elmo. 3M said the lawyers also mailed 25,000 letters to residents.

Although no one had complained of any ailments related to the water, the lawyers sponsored public meetings about the potential harm of the chemicals.

They called it a communication campaign. 3M called it fear-mongering and unethical soliciting for business.

The lawyers paid $50 apiece to people willing to have their blood tested for PFCs.

Sure enough, dozens of residents were found to have PFCs in their blood. The worst was in a child — with a PFC level 74 times higher than normal.

The basis for the lawsuit looked apparent. Innocent homeowners, said the lawyers, were victims of corporate-sponsored pollution, and the proof was walking around inside them, in their blood.

Then, the same year, an Ohio case gave the Minnesota lawsuit a shot of adrenaline.

The DuPont Corp. had been using PFCs made by 3M in a plant in Ohio. Traces of PFCs appeared in area drinking water.

A judge did not find that anyone was injured by the pollution. But DuPont was ordered to pay $300 million to get the PFCs out of the water and to monitor the health of residents for future problems.

It became a template for the 3M case. One of the successful lawyers in the Ohio case — Rob Bilott — joined the Minnesota lawsuit.

Then, in 2006, another bombshell.

A new test had been developed for detecting another type of PFC. When state officials checked the water, they were flabbergasted to find this other PFC in an underground plume that stretches 15 miles, from Lake Elmo to Hastings.

Overnight, the potential for public injury ballooned to 67,000 people. What started as a small case now looked like a stampede.


The lawsuit against 3M went into overdrive.

The ranks of the water drinkers who joined the lawsuit swelled to more than 1,000.

The case was simple. 3M produced PFCs that ended up in drinking water. People were hurt. 3M should pay.

In interviews with the Pioneer Press in 2007, 43 residents in Washington County suspected — or claimed positively — that the PFCs hurt them and their neighbors.

“I went to so many funerals, it was ridiculous,” said 72-year-old Shirley Pedersen, who lived in Oakdale from 1961 to 1973.

At that time, she said, 14 of her neighbors died. “It was terrible — people dying left and right. They all had cancer. It definitely was the water.”

Other residents said the water injured their pets, gave them diabetes and gave skin rashes to infants.

In court, their lawyers never claimed the PFCs caused actual illnesses; they said the PFCs caused “subcellular injury.” This was, they said, a subtle form of damage to cells that might take years to turn into full-fledged diseases.


To 3M, this seemed preposterous.

3M officials were confident — even cocky — about the harmlessness of PFCs.

For years, they had studied their own factory workers, who were exposed to PFC doses many times greater than anyone else had seen.

They cited more than 1,500 studies of PFCs, involving animals and people. None of the studies showed ill effects on people — at any dose.

The traces found in drinking water were, to 3M, almost laughably small. Company officials once calculated that a person in Woodbury would have to drink 500,000 glasses of water a day to match the dose found harmless in mice.

And subcellular injury? Hogwash.

“We don’t think it exists,” 3M lawyer Cooper Ashley said in court in December 2008. “There is no actual evidence of even $1 in medical expenses. No one has spent a red cent on hospitals, doctors (or other medical care). Nobody was hurt.”


Outside the courtroom, evidence was mounting to support 3M.

3M had spent more than $56 million to clean the chemicals out of water, and the state Pollution Control Agency said those efforts had worked.

In all areas, except for a few private wells, officials concluded the levels were so low the water could be consumed daily for a lifetime with no ill effects.

Then, in June 2007, the state Department of Health completed a survey in the affected areas. Despite decades of exposure to the PFCs, residents showed no increases in disease or death compared with metro-area norms.

Last December, District Judge Mary Hannon drove the last nail into the coffin of health damages. She threw out all arguments regarding health claims.

It was the foundation of the original lawsuit. If no one was harmed, what was all the fuss about?

What remains — and is the subject of the trial that starts today — is whether 3M was negligent in dumping the PFCs or hurt residential property values.

Even those claims, lawyer Joe Anthony said, will be difficult to prove.

“If there are no ill effects, and no contamination on the property, what is the damage?” said business law expert Anthony, of the Minneapolis firm Anthony Ostlund Baer & Louwagie, who is not involved in the 3M case.

“I am not sure what the negligence would be,” he said.

Jury selection in the trial was scheduled to begin this afternoon, and opening arguments are expected to begin later this week.


1947 — 3M begins manufacturing PFCs — perfluorochemicals — for household products.

1970s — 3M stops dumping PFCs in landfills.

2000 — Reports increase of PFCs discovered in animals and people worldwide.

2002 — 3M stops making PFCs; officials develop test for PFCs in water.

2004 — PFCs detected in water in Lake Elmo and Oakdale.

2005 — DuPont Corp. pays $300 million for PFC in Ohio.

2006 — Tests developed for detecting PFBA, another form of PFC.

Jan. 20, 2007 — PFBA discovered in 15-mile-long plume running from Lake Elmo to Hastings.

June 7, 2007 — Minnesota Department of Health says there is no increase in health problems in the affected area.

June 20, 2007 — Judge rules against “class action” status, so plaintiffs must sue 3M individually.

Aug. 17, 2007 — PFCs found in local fish. Officials recommend limiting fish consumption.

Jan. 17, 2008 — Health Department says PFC levels in water too low to be a health threat.

Dec. 19, 2008 — Judge rules, in effect, that PFCs did not injure water drinkers.

May 4, 2009 — Trial begins, limited to 3M negligence and damage to property values.