The Dark Waters Edition: A Discussion with Environmental Attorney Rob Bilott

Episode Notes

Transcript

[Music]

Intro:  Hello everyone and welcome to CBA’s @theBar.  A podcast where we have unscripted conversations with our guests about legal news, topics, stories and whatever else strikes our fancy.

Jonathan Amarilio:  I’m your host Jonathan Amarilio of Taft Law, and joining me on the pod today is Rob Bilott, also of Taft Law.  Now, I know what you’re thinking when you hear that.  But before you write this off as shameless marketing and hit next in your podcast queue, I promise you, that’s not why we have Rob here, today.

Rob doesn’t need us to promote his practice.  He has a major motion picture made about his legal exploits, “Dark Water” starring Mark Ruffalo and Hathaway and Tim Robbins.  He’s had several documentaries made about those same feats including “The Devil We Know” on Netflix.  He wrote a truly excellent book, “Exposure:  Poisoned Water, Corporate Greed, and One Lawyer’s Twenty-Year Battle Against DuPont.”  He had a feature written about him in The New York

Times magazine which called Rob, “The Lawyer Who Became DuPont’s Worst Nightmare.”  He’s also been written about in Time Magazine, The Washington

Post, The Guardian and countless other publications.

He’s appeared on news television programs, received a standing ovation on The Late Show with Stephen Colbert and perhaps most impressively, he’s received the Right Livelihood Award, which is sometimes referred to as the Alternative Nobel Prize, in the international Accolade given to those who, “to offer practical and exemplary solutions to the most urgent challenges facing the world today.”

My point is, he’s a big deal who has done a lot of good in the world.  Rob, welcome to @theBar.

Rob Bilott:  Thanks so much.  Pleasure to be here.

Jonathan Amarilio:  So, Rob, your story is the stuff that movies are made of.  Your story, in fact, is the stuff that a movie was made of and like many good movies, it started with unlikely circumstances, right.  Let’s start there.  You graduated law school in 1990, right?

Rob Bilott:  Right.

Jonathan Amarilio:  You pass the bar.  Your young hungry associate at Taft Stettinius & Hollister, which I think that was just in Cincinnati.  What did your practice look like at the beginning?  When you started?  When you were a baby lawyer?

Rob Bilott:  Yeah.  When I graduated law school from Ohio State on 1990, I’ve started at Taft that same summer and really had no idea what the practice of law was starting at a big firm and I noticed that they had an environmental group at the time and when I was in law school, that was one of the few classes I thought was really interesting.  There were some classes I didn’t think were quite as interesting.  But at the environmental law class, I thought this was really kind of an interesting subject matter.

So that’s what led me into the environmental group back in 1990 and at that point, I had no science or technical training or background of any kind but really just sort of got thrown into starting to learn all about the different federal and state environmental laws and regulations, which are pretty staggering order to go through all of that and learn all of those different statutes, those rules, those regulations and a lot of what we were doing back then was working with big corporate clients.  And particularly, what was going on in the early ‘90s was a lot of super fun work.  Cleaning up hazardous waste sites all over the country.

So a lot of what I was doing was representing our chemical company clients and meetings with other lawyers representing other big chemical companies all over the country, trying to figure out who pays what to clean up these sites and digging through files that go back decades of what was going on at these old manufacturing facilities that have been closed down all over the country.  So that’s what I was doing the first eight years.  It was really learning that world, and I thought I understood it pretty well, after the first eight years.

The things that were bad, hazardous or nasty or on-list of regulated toxic hazardous materials and as long as we were handling all of those things the way we were supposed to in getting the right permits and complying with those laws all as well.  So that was my introduction to the law during the early 90s and where my practice was heading by late 1998.

Jonathan Amarilio:  In the 1998, you make partner, right?

Rob Bilott:  Correct.

Jonathan Amarilio:  And one day, a farmer from Parkersburg, West Virginia approaches you and wants you to represent him, right?

Rob Bilott:  Yeah.  I got a bizarre call in the office one day.  I just picked up the phone, and there was a gentleman on the other line whose voice I didn’t recognize.  I had never heard of him.  It was fairly agitated, fairly angry.  I was talking about cows that were dropping dead on this property and that I needed to help him and I was about to hang up the phone because I had no idea why this guy was calling me.  Of all people, this is not what I did, and then he blurted out that he got my name from my grandmother earlier that day.  So I paused and paid a little closer attention to figure out how the world was this call coming to me and what does it have to do with my grandmother.

00:05:03

Jonathan Amarilio:  Right, you don’t want her mad at you?

Rob Bilott:  No, no.  So, he explained that he was raising cows outside of Parkersburg, West Virginia, and I knew that town well.  My dad was in the Air Force.  We had moved around a lot, but we’d always come back to Parkersburg because that’s where my mom grew up, and all of her family was there.  We went there for holidays and birthdays.  So when he mentioned he was outside Parkersburg, I kind of viewed that as my hometown and then I understood the connection.  He was talking to his neighbor, who had happened to have been on the phone with my grandmother that day, bragging about her grandson being an environmental lawyer.  Surely, he could help him.

Jonathan Amarilio:  Right.  So what made you decide to help him?

Rob Bilott:  Well, I was a little skeptical during the call.  Again, this was dying cows.  This was not the kind of thing that I was dealing with, but he was adamant that if I could just see the information he had he was convinced there was something in the water that these cows were drinking.  Something was coming out of a landfill next to his property owned by the DuPont Company.  And he was convinced, there was something nasty in that water.  He could see white foam and if I could just look at what he had, I’d see it too.

So I figured, what’s the harm?  I’ll invite him up and so he and his wife drove the three hours back in October 98 and came up with boxes of VHS tapes and photographs dating back to the mid-1990s that he’d been taking and just so happens that the head of our environmental group, Tom Terp, who became the head of the firm in later years, was walking by.  I invited him in, and he watched these tapes, too.  And it was pretty compelling stuff.

You could see white foaming water coming through a creek that these animals were drinking from.  And you could see the animals wasting away.  They were all skin and bones.  They had black teeth.  They had tumors.  There was a video of stillborn calves.  There was a video of the farmer.  His name was Mr. Tenant cutting into the animals to try to figure out what was going on.  So watching those videos, seeing the photographs and frankly, listening to Mr. Tenant and his wife describe what was going on and seeing how upsetting this was to them and this seemed like, this should be something we could help them with.

Jonathan Amarilio:  What did you think you could do to help him at that point?  Like, how did you imagine at this early stage, the way this will go?

Rob Bilott:  You know, at that point when he told me this was the landfill and it was permitted by the State of West Virginia and that the DuPont company owned the landfill, I knew DuPont.  They were a massive chemical company.  They weren’t a client of our firm, yet I knew them because a lot of their lawyers would show up at these superfund sites, I mentioned earlier, where their lawyers would be arguing with us about whose company ought to pay, how much to clean up these sites.  So I knew that they were a very sophisticated company.  They had a lot of good scientists.  They had good lawyers.

If this was a DuPont landfill, certainly it was going to have the proper permits.  We could get to the bottom of it pretty quickly.  There was probably something exceeding those permits.  All I would need to do, go to the state files, get the permits, and look at what was regulated, what the limits were and there’s probably something above a limit and once DuPont was alerted to that, I was assuming they’d be able to take care of it.  It turned out to be a lot more complicated than that.

Jonathan Amarilio:  Right.  So your initial assumption was that they were playing by the rules, which as you later found out was not the case.  But let’s stick with the early days for a minute, you launch your initial investigation, right?  You’re doing your due diligence.  How did that begin?  What did that look like?

Rob Bilott:  Well, since this was a landfill permitted by the State of West Virginia, we went out and did Freedom of Information Act Requests to the State of West Virginia for copies of the permit, copies of the monthly reports that the company would send in that would describe what they were monitoring for in the water coming out of the landfill.  To see what types of materials were being monitored for, and to see if there was something that was clearly exceeding a permit limit.  Some obvious explanation for what was happening with this white foaming water.  And we did the same thing, we went to the US EPA to see if they had any related documents.

And frankly, going through those government records nothing was really jumping out.  Nothing was jumping out from those permits that was an obvious source of white foam or would cause the kinds of things we were seeing in these animals.  So I realized we’re going to have to do something beyond simply going to getting the government records.

Jonathan Amarilio:  And what was that?

Rob Bilott:  Well, we ended up making the decision to actually bring a formal claim and lawsuit against DuPont in order to get the company’s records.

00:10:01

And to find out — maybe they had information about this landfill, that we weren’t seeing in the government files.  So we filed that case in 1999.  And when we first filed it, we were contacted by DuPont’s lawyers.  And again, these were folks I knew from some of our other superfund work and right from the beginning was a very cordial relationship.  They explained, “Hey, we actually have a study already going on with the US EPA, where we’re looking into what’s happening to these cows.  We’ve got the top experts from US EPA, and some of the top people from DuPont are pouring into this right now.  So no need really, to get into a bunch of really expensive discovery and going through all that.  You’ll be getting an expert report from these folks real soon.  So why don’t we just wait and get that report?”  So making sense at the time.

Jonathan Amarilio:  Right, of course.  And how long did it take you to get that report?

Rob Bilott:  Well, it took over almost a year to get this report.  We kept being assured it was coming.  In the meantime, I was digging through additional documents from the States.  DuPont had agreed to give us all of their documents about the permit and the landfill.  So we were getting all of their documents about the regulated materials in that landfill.  And just like the state records, nothing was really jumping out from the DuPont records.  But I was waiting to get this report from these expert veterinarians.

And that report finally landed on my desk.  I believe it was January of the year 2000 and was frankly, an eye opener because reading through this report, it basically was blaming Mr. Tenant, the farmer saying, “He simply didn’t know how to raise cows.”  And at that point, I began to really start to get a little suspicious of what was happening, because what was described in that report did not relate to what I was seeing.  I had gone out to that property.  I had met Mr. Tenant.  I had met his family.  They knew how to raise cows.  So that was not the answer.  And when, Mr. Tenant saw that report, it was very adamant that that was simply not the case.  So, I realized at that point we needed to take a different approach.

Jonathan Amarilio:  So when was the first time you saw the letters PFOA or CA together?

Rob Bilott:  It was at the point where after getting this cattle report, that’s what they called it, there was this cattle team that had been put together by US EPA in DuPont and realizing it wasn’t providing any answers.  At that point, I decided — I think I need to broaden discovery here.  I’m not going to just be focused on the permits and what’s regulated that landfill.  I went back to DuPont and said, I want to know everything that’s actually going into that landfill.  Whether it’s in the permit or not.  And I want to know, what are you making at the plant down the River.  That’s actually generating the waste that you’re sending to this landfill?

Well, the atmosphere changed dramatically at that point.  The DuPont lawyers started resisting that discovery saying, “This was a wild fishing expedition.  This was totally irrelevant.”  We had to go to court.  Get court orders, orders to compel, which were eventually granted where we started getting the files from the company about what they were making down the river at this massive plant that was almost two miles long and what was going to the landfill, whether it was permitted or not.  And those of you have seen the movie “Dark Waters.”  You see all these boxes.  That’s the way it was.

Jonathan Amarilio:  The document though.

Rob Bilott:  Yeah, this was before electronic discovery.  Everything was coming hard copy.  So I started pouring through that stuff page by page, putting it in chronological order.  Then that’s when, one day I stumbled across a document that was mentioning this stuff called PFOA.  And that large amounts of it apparently went to this landfill and no idea what that was.

Jonathan Amarilio:  Right.  You’ve been doing this for eight years.  You think you know chemicals pretty well at that point, but you never seen PFOA before.  I think DuPont also called it C8, right?  How did you figure out what it was?

Rob Bilott:  Well, I went to all of our resources that we had at the firm at the time.  all of our lists of chemicals and regulated materials, and that just simply wasn’t on any of those lists.  One of my other partners at the time mentioned that he had been working with an analytical chemist.  This is for some of our corporate clients that maybe he’s a good guy to run this past and see if he knows anything about it.  And again, in the movie, you see this depicted where I meet with this expert.  This is an analytical chemistry expert.  And he said to me, I’ve never heard of this stuff either.

But keep in mind, this is the summer of the year 2000.  This is around June of 2000.  Well, this expert had just read a trade journal or article that had mentioned the fact that the 3M company in May of 2000, just a couple of weeks earlier was announcing that it was pulling Scotchgard off the market.

00:15:12

And it had mentioned it had something to do with the chemical called PFOS.  And so the expert said, “You know, I’m not sure if PFOA is the same — is related to PFOS.  But if 3M is pulling PFOS off the market, something that was used in such a profitable product line – 

Jonathan Amarilio:  Right, it’s a major product of theirs – 

Rob Bilott:  Maybe you got to find out about PFOA, too.  See if it’s related, and that’s what set me down that path.

Jonathan Amarilio:  So let’s go there.  Take a sidebar for a minute and explain for our audience what is PFOA.

Rob Bilott:   PFOA stands for — this is the acronym world.  Those of you who practice environmental law are unfortunately too familiar with all these acronyms but PFOA stands for perfluorooctanoic acid, which is one of a big family of completely manmade chemicals called PFOS per- and polyfluoroalkylated substances.  There are hundreds, if not thousands of these completely manmade PFOS chemicals, all of which were developed right after World War II, starting with the 3M company.

The principal PFOS chemicals that they were making right after the war were ones that had eight carbons.  All of these chemicals are characterized by a kind of unique structure of carbons attached to fluorine, and the two that were their most well-known were PFOS and PFOA.  Both of which had eight carbons and as you mentioned, DuPont called it C8, that’s why because it had eight carbons.

Well, 3M was using PFOS to make things like Scotchgard and certain types of firefighting foams but they started selling their PFOA to DuPont as early as 1951 and DuPont was using it to make Teflon.  Now again, this is a completely manmade chemical and when I first heard about it, there was no information out there about any of it.  And it took digging through the internal files of DuPont over several years to figure out what this stuff was and what was known about it, and what we found out was even though it was at that time completely unregulated most people had never heard of it.  There was a lot known about it, a lot known internally by not only 3M who was making it, but by DuPont, who was their principal purchaser.

Decades of studies had been done showing that it was incredibly toxic.  It could cause cancer and laboratory animals.  It had this unusual ability to — once it got out into the environment, stay there virtually forever.  That manmade chemical structure of carbons to fluorine made it almost impossible to break down, which is why you hear me referred to now as forever chemicals.  Once they get out there, they don’t breakdown and they have this uncanny ability to get into living things.  So like animals or people that are exposed.  This stuff gets in you and sticks into your blood and then builds up overtime.

So it’s toxic, biopersistent, bioaccumulative and a lot of that was known going back decades and decades.  Yet it wasn’t regulated, when I first started reading about it in 2000.  Why?  Because remember, this was first made in the 1940s, 1950s, decades before the US EPA even came into existence in 1970 in the first federal laws regulating new chemicals came out around 1976.  So when those laws first came out, they really focused on new chemicals from that point forward.

Well, an existing chemical like this one, it was up to the companies making or using them to tell the EPA if they had information that suggested a substantial risk to human health or the environment and despite all of this information I was seeing in these internal files – 

Jonathan Amarilio:  DuPont hadn’t done – 

Rob Bilott:  DuPont was saying was determining we don’t think it’s a risk and hadn’t been recording.

Jonathan Amarilio:  Because I mean, that’s a loophole that you could drive a Mack truck through, right?  A regulatory loophole.

Rob Bilott:  Well, this whole case with PFOA and PFAS chemicals has really highlighted the problem with the way in which those laws were set up.  That really relies upon the manufacturers and the users of those chemicals to be the ones to tell the EPA whether there’s a problem with them.

Jonathan Amarilio:  But they don’t have a lot of incentive to do that, right?

Rob Bilott:  Well, not really.  Because as we saw here, the information was withheld for decades.  And even when they finally did get caught and the EPA sued them for withholding that information, after decades, all they ended up having to do was pay a $16 million fine on products that they were making billions a year on.

00:20:06

Jonathan Amarilio:  Right, I want to go there.  But for now, let’s just stick with what DuPont knew.  They knew for decades that this stuff was poisonous, you said.  Am I remembering correctly that they even experimented on their own employees by giving them cigarettes that were intentionally laced with PFOA to see what would happen?

Rob Bilott:  Yeah.  There was a report from the early 1960s, when DuPont was first going into the market for Teflon around 1961, 1962 that apparently workers were given cigarettes that were laced with Teflon and they smoked them and then the company observed what the effects were and what they learned was heating this stuff up — this Teflon material could create what they called “polymer fume fever,” or the Teflon flu would give you the shakes like flulike symptoms.  This was known in the early 1960s as the product is being launched.  That was humans that were being experimented on in that way.

Jonathan Amarilio:  And I think that’s worth emphasizing a little bit, because heating it up creates adverse health effects and they’re selling this product, Teflon, on pots and pans that are used on stovetops across America, which are heated up every day, right?

Rob Bilott:  Yeah, and even if you go to the website, I’m not sure if it’s still there or not, but at least in the past, if you went to the DuPont website, it would say, “Do not overheat.”  In the Environmental Working Group at one point in the early 2000s actually tried to highlight the fact that just routine cooking could reach the temperatures where a lot of these toxic gases could start to be released from Teflon.

There was even — again, those of you who saw the film “Dark Waters” or the documentary, “The Devil We Know” you see an excerpt from ABC’s 2020 show in 2003.  In that show, you had people showing how quickly these pots could heat up on the stove and reach the temperatures where these gases could be released.  And that’s been known for a long, long time.  It could kill birds if they’re in the kitchen when these pans are overheated.  And that’s something – again, that’s been posted on the websites for a long time.

Jonathan Amarilio:  Yeah, canary in the kitchen.  So DuPont and 3M were so successful with Scotchgard with Teflon marketing these products that it’s now in the bloodstream of 99% of living creatures that have bloodstreams circulatory systems, the planet, the entire planet am I correct?

Rob Bilott:  It’s rather disturbing.  You have to keep in mind that so far we’ve been talking about 3M and DuPont in the use of some of these chemicals in some of the signature products, like Scotchgard or Firefighting foam or Teflon but you have to keep in mind that these chemicals in these related PFAS chemicals have been used in a wide variety of different consumer products over the last 70 years, not just nonstick cookware, but things like stain resistant waterproof clothing, carpeting, fast food wrappers and packaging, computer chips.  I mean, just a wide variety of different products by different companies all over the country as well that have purchased this stuff and used it.

Many of them having no idea these chemicals were even in there and so what’s happened is over that 70 years, as these materials have been used and pushed out into so many products all over the planet, this stuff has been getting out into the air, into the water, into the soil where it has managed to now contaminate drinking water not only all over the United States, but all over the world, Australia, New Zealand, Italy, Germany and this stuff doesn’t just stay in the environment.

Living things are what they call a sink for this stuff.  It ends up being stored in living things, in their blood, in people and as you indicated by today, we now have about 99% of the people on the planet having these chemicals in their blood and it’s passed on.  Babies are born with these chemicals because it passes from the mother to the baby in utero.  So it’s environmental contamination on a global scale that’s really sort of unprecedented in scope.

Jonathan Amarilio:  And it will last forever.

Rob Bilott:  Unfortunately, particularly for these what they call the longer change, the ones with 8 carbons or 9 carbons, 10 carbons, those are the ones that stay out there and don’t break down.  And unfortunately, everything that’s been emitted for the last 50, 60, 70 years is still out there and will be unless we find some ways to clean it up.

00:25:00

Right now, most of the focus has been on identifying where it’s in drinking water so that we can at least stop those exposures and get it out of people’s water.  But people are just now shifting their focus to, “Okay, if we can stop it — if we can get it out of people’s drinking water, how do we get it out of the ground?  How do we get it out of the ground water?  How do we get it out of the soil so it doesn’t keep leaking into the water?”  Those types of scientific inquiries are just now beginning.

Jonathan Amarilio:  There was a scene in the movie depicting the moment where you figure out that PFOA is in Teflon, something that’s in your home, in the homes of countless millions of others.  Did that happen?  Was there a moment of true revelation and terror or was that just a handy plot device?

Rob Bilott:  It did happen.  It was something that really kind of built over time.  It began when I first realized what this chemical was used in making.  When I realized that this stuff was used in making Teflon and started to see all the different ways in which these Teflon materials were used and then, started to see that it wasn’t just the Teflon.  That these things were used in a whole bunch of different products going to other companies and really started to put together in my mind the scope of this and that’s when I started to realize that this was a problem that was going way beyond one farmer in his family or even one community there in West Virginia.

This was a massive public health threat.  This stuff was in drinking water all over.  I saw evidence that had been found in human blood across the country going back into the 1970s but nobody had been told.  And I started to realize that we were looking at information of a massive public health threat that, frankly, I wasn’t sure anybody else knew about.  It was clear that the regulators hadn’t been told, the public hadn’t been told, and I was struggling with, what do we do with that information?  How do we make sure that the public is protected, that this information gets out and that steps are taken to make sure the public health threats addressed?

Jonathan Amarilio:  And with that Dickensian level clipping, or it’s probably a good place for us to take a break.  We’ll be right back.

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Jonathan Amarilio:  And we’re back.  So, Rob, let’s get back to the case.  I’m sure this wasn’t easy.  DuPont was throwing as many obstacles as they could in your way, right?  What did those look like?

Rob Bilott:  Well, it took many forms and as I explained in the book “Exposure,” it became clear that addressing this issue was going to go far beyond simply handling the legal issues through the legal process, through briefing, through court proceedings, that this battle was being waged not only in the courtroom but in scientific journals, before the regulators, before the media, through the PR department, through all of these different areas that we had to start to understand and start to really monitor and be able to follow, and to make sure that as we were dealing with one issue in court, the laws weren’t being changed behind our back in another way, or the regulators weren’t being misled about something or the public wasn’t being misled.  It had to be monitoring all of that.  And as you see in the film —

00:30:00

Rob Billot: At one point when I first you know, decided I’m going to reveal this health threat to the public agencies that are supposed to protect us from these types of threats. When I put my letter together to go to the U.S. EPA back in March 2001 to lay out why this was a health threat and why they needed to do something about it. DuPont actually went to a federal court to get a gag order to stop that and to prevent me from speaking to the public agency. So you know, you could just see the different types of things that were happening not only in the courtroom but then you know, PR firms that were being consulted with and hired to try to find ways to control the narrative and to make sure that we didn’t have access to scientific experts or to make sure that if we started to contradict their view on science that our folks were labeled junk scientists you know, with the media and disregarded and it happened on a number of levels throughout many different ways. 

Jonathan Amarilio: And you had to deal with a lot of corporate capture as well, not only with the West Virginia EPA but the even the U.S. EPA. It seemed like they were almost on DuPont side throughout this. 

Rob Billot: You know, it was incredibly difficult, it was a very eye opening for me to see how this really worked and what was really happening first as you mentioned to see what was happening at the state level with the State of West Virginia where rather than the state simply coming in and investigating this chemical and setting proper safety limits, they set up a process in collaboration with the company to create another team just like their cattle team that they had done with the U.S. EPA to set up a team with the DuPont scientists on the team to tell the public what a safe level was and it was something frankly then the DuPont lawyers who helped negotiate that process leave their private law firm and become the heads of the West Virginia EPA, enforcing that same agreement, it was rather mind-blowing. But then we saw similar problems at the federal level you know, you’re talking about an agency that is massively overworked you know, with just having to review thousands of chemicals, understaffed, under-budgeted a lot of times, or budget keeps getting cut and you know, you have companies that are able to come in offering with here’s our draft of how you know, what the safety levels would be and we even saw in this particular case the DuPont folks helping to draft the public statements that the U.S. EPA would make about this very chemical and then former U.S. EPA people leaving the agency and then becoming consultants working for DuPont negotiating with the agency. So I think you see that in the documentary, the devil we know where one of those former agency people is you see an excerpt from his deposition, so again I wanted to highlight that in the book so that people just understand the extent to which this does happen and we saw a little bit of that in Minnesota as well you know, with former 3M folks involved with the with the state EPA there. 

Jonathan Amarilio: So there’s this revolving door that you’re dealing with. You also had to fight the town, Parkersburg and its residents, right? The very people that you were trying to help were resisting you making any progress in your lawsuit isn’t that right? 

Rob Billot: Well you know, you have to keep in mind, this was a town where DuPont was one of the main employers and most people either worked for that company or knew people that did had relatives that did, they had been a long-time supporter of different community organizations as you see in the film you know, you have a park named after them or a street named after them or their sponsor of the school you know, sports team so there was a lot of support in the community and I think a lot of folks didn’t want to believe that something like this could be happening particularly if they worked there or had family that worked there and you know, even when we got to the point of have settling this case, this class action that we ended up bringing and setting up a scientific panel to be able to confirm whether this chemical you know, was linked with disease, a lot of the folks that participated and gave blood and you know, helped in generating that science were doing so hoping it was going to vindicate the company and prove that there was not a problem so you know, even to this day there is a lot of support still in the community because you know, they’re a major employer with a lot of historic ties there. So it was very difficult for the people that were taking on this case and that were speaking out because they did suffer you know, some pushback certainly from the community, from the local press, from editorials you name it. 

Jonathan Amarilio: It’s understandable from an economic standpoint I suppose it was sort of hard to accept that the very people who are being poisoned and killed by this company or defending it but. 

00:35:06

You mentioned the settlement, there were several settlements. The first settlement was the one with Earl Tennant and his claim right? 

Rob Billot: Correct. 

Jonathan Amarilio: Why did you settle that? What did you hope to gain from the settlement? 

Rob Billot: Well you know, we were able to reach a settlement for Mr. Tennant and his family and I was glad to be able to do that and unfortunately though by the time we were able to do that and to resolve his claims for his family and for his property we had discovered by that point and he was well aware that this went far beyond his family and his property you know, this was a bigger issue you know, that’s what led eventually to us sending my letter to the EPA to alert them that this was an ongoing health threat which finally the community became aware this was in their water and that led to the community coming to us and asking them to bring claims to get it out of their water, the class action that followed. 

Jonathan Amarilio: And that’s in 2001 you filed the class action right? 

Rob Billot: Correct, correct. After we were able to settle Mr. Tennant and his family’s case, we had members of the community, once they finally found out this was in their water come to us and say how do we get this out of our water now and how do we get relief that was going to tell us what this is doing to us and let us get whatever testing and appropriate relief is necessary if it’s causing us harm. 

Jonathan Amarilio: So that class was about 70,000 people in West Virginia and Ohio whose drinking water had been contaminated, right? What were your claims there in the class action? 

Rob Billot: You know, at that point we knew from the documents we had received from DuPont we knew that this was in the water of at least two of the public water districts there, one in Ohio and one in West Virginia and as the case progressed it became clear that this had spread to six water supplies in the area and dozens of private wells so, by the time the case eventually concluded in 2004, a couple years later, we were aware that it was as you indicated 70,000 people in six different public water supplies that were contaminated. But when the community first came to us from the originally impacted water supplies you know, they presented us with a real difficult legal challenge. They’re telling us we want you to help us get it out of the water and we want this testing and studies to tell us whether it’s hurting us yet remember at that point in time, this chemical was not regulated. There were no state or federal standards, rules or regulations, saying if it’s in the water above this level you have to do something about it. The only thing that existed was a drinking water guideline that DuPont itself had come up with. It was an internal drinking water guideline that DuPont’s own scientists had developed back in 1988 when they first found out this stuff was in the water but of course didn’t tell anybody about it. So they had set this internal guideline of one part and one part per billion. 

Jonathan Amarilio: There you go. 

Rob Billot: Correct. No more than one part per billion and what we were seeing in the documents is their own sampling was showing three to five times that in the local community. So you know, we had to figure out how do we bring a claim based on that and it just so happened that we were dealing with a situation in West Virginia along the Ohio River and the Supreme Court of West Virginia had just recognized a new type of torque claim called medical monitoring where you could bring claims if you’ve been exposed to something that increased your risk of disease. Well here we had internal DuPont documents saying if you drink it above this guideline it may result in an increased risk of these problems. So that’s what we based our claim on. We focused on this new West Virginia medical monitoring law, common law torts and filed that as a class action in West Virginia court in 2001. 

Jonathan Amarilio: And DuPont is still throwing hurdles in your way right because you settled the first case you don’t have any kind of res judicata or collateral estoppel to back you up in terms of what the acceptable level of contamination is right or that that safe level of contamination I suppose I should say is — and as you’re prosecuting that case if I remember correctly DuPont’s position changes whereas before as you mentioned they said one part per billion is problematic, now suddenly they’re saying with the blessing of, am I correct and saying the West Virginia government, 150 parts per billion is the new safety level. 

Rob Billot: Yeah and this is what I describe in the book, exposure is this you know, it’s rather remarkable when you look back at the history here remember that when we filed the case, the regulatory agencies didn’t even know about this. 

00:40:02

But you had this internal guideline from DuPont that they were still following of one part per billion in drinking water and our case of course was focusing on that DuPont standard and so what DuPont did is as soon as we filed that case that’s when they went to the State of West Virginia seeking a government approved or government blessed number that would be higher than their internal one part per billion number and at the time the levels that were starting to come back from some of these water supplies were more than three to five times that they were now 10 or maybe 35 times higher in certain wells that were being tested. So DuPont then went to the State of West Virginia, set up this consent order where they agreed to set up a team that would come up with a new screening level for PFOA and drinking water and the DuPont people would be on that team and DuPont helped select the consulting firm that would corral all the scientific data so just a couple months after our case is filed, this new DuPont West Virginia team comes out and announces and this is right after levels have been found in one of the public water wells at 35 times the one part per billion number. They come out and announce it’s perfectly fine the screening level is now 150 parts per billion. 

Jonathan Amarilio: Wow. 

Rob Billot: And keep in mind, DuPont to this day never changed its own internal standard of one part per billion so they went into court and then said the government now has this standard, this case should be thrown out the government now has primary jurisdiction over this this case should stop and our state court said no, this is a good old common law tort claim whatever the state does has no bearing on that, this case goes forward. And we did, we got certified as a class and the case moved on. 

Jonathan Amarilio: Reminds me of that old church hill quote something like people occasionally stumble over the truth but most just pick themselves up and carry on, hurry off, like nothing had happened. So you do settle that case for 70 million in damages right and DuPont agrees to install water filtration systems in the affected towns and they agree to pay for medical monitor or medical study I should say, of the affected communities which entailed an independent science panel, can you explain what that was the panel? 

Rob Billot: Sure yeah, when we reached the settlement in 2004 as you indicated, one of the first things we wanted to make sure was done was that everybody’s exposure would stop from their drinking water. So DuPont was required to pay for the design and installation of water filtration systems for all of the impacted water supplies, public water and the private wells which they did and then the other issue that the community wanted and answered to was what’s this stuff going to do to us in the long term, it was clear from the documents we had seen it caused cancer in laboratory animals, it caused all kinds of toxic effects. We were seeing similar issues in the workers who had been exposed but DuPont had always been taking the position where animals aren’t relevant to humans and even these workers that you’re seeing problems in, those are such highly exposed people, nothing we would expect no problems with people who are drinking at the levels that these people are drinking. So when we sat down to settle this case we decided we needed independent scientists to look at all of the data not just what was published which was very little at the time right but to look at all of the internal studies that we had uncovered and do new studies of the people that were drinking this to confirm whether or not it actually was linked with causing these diseases. So this panel, we had to sit down with DuPont and agree on three epidemiologists, human health studies folks that were completely independent, never worked for either side and believe it or not we actually were able to do that. We picked three that we all agreed on and then they were given the task of looking at all of the data and doing new studies and confirming whether or not this chemical was linked with disease at the levels the people were drinking it and really nobody have ever done that before, so we had no idea how long it would take, we ended up the 70 million you mentioned that was part of the class settlement, we used all of that money to pay people to come in and have their blood tested and have medical information provided so that there would be a big enough group studied to finally confirm these problems. Because what we’ve been hearing even in all the prior studies that have been done, even in the human worker studies where cancer elevations were found for example, the argument always was were there aren’t enough cases, the study’s not big enough to really draw firm conclusions. 

00:45:00

So we knew we needed a big study of tens of thousands of people so we thought maybe if we were able to pay people to come in they’d participate and we were floored frankly that we got 69,000 people to participate that way and finally we were able to give that panel big enough comprehensive enough data that they were eventually able to confirm links with disease. It took them a long time but they were able to do it. 

Jonathan Amarilio: So this is one of the things that’s confused me about the case as I understand that part of the settlement was the deal that if the panel found probable links between PFOA and health problems, DuPont would pay for medical monitoring and those class members affected would have the right to bring individual suits against DuPont for their damages. DuPont knew that this stuff hurt people. As you said earlier, decades of information on that, so why would they agree to that? Do you think they were just buying time and kicking the liability can down the road so that they could keep profiting off Teflon and these other products in the meantime or I can’t square that circle. 

Rob Billot: Well all I can tell you is that at the time we sat down and negotiated this deal, right and I discussed this in the book is you know, remember at the time we negotiated this, almost all of the published peer-reviewed science that had been done was whatever DuPont or 3M frankly had chosen to publish or have out there in the journals and DuPont was taking the position none of the existing studies were big enough to confirm any of these effects. He didn’t have enough people, the group wasn’t big enough, there weren’t enough cases to really confirm one way or the other and at the time we reached this agreement that this panel would have the right to make these decisions based on all the data and if they found links DuPont would have to pay for testing as you indicated with people would have a right to bring these claims. At the time we agreed to that deal we hadn’t explained how we were going to use the 70 million dollars. It was only after we agreed to this deal that we then submitted our plan to the court that we would use the 70 million to pay people to come in and that’s what resulted in getting 69,000 people to come in and do the type of study that I suspect a lot of people thought could never be done, there would never be enough people, there would never be a big enough study to confirm these things but having access to that money, we were able to get a big enough study. 

Jonathan Amarilio: So the science panel comes back after how many years was it? 

Rob Billot: They started their work around 2005 or six you know, a lot of this data collection getting the blood data from 70,000 people that took a while you know, that took a year or two and they didn’t finish their work until 2012. 

Jonathan Amarilio: And then they find probable links between PFOA and kidney cancer, testicular cancer, thyroid disease, high cholesterol, everything that comes with that, preeclampsia, ulcerative colitis. So it seems like you’ve got DuPont dead to rights at that point but they tried to renege again on the deal didn’t they? 

Rob Billot: Well at that point once the science panel came out and announced there were you know, it was able to confirm frankly a lot of what we had already been seeing in these documents you know, keep in mind the original animal studies dating back to the 80s had already confirmed PFOA could cause testicular tumors in rats yet DuPont was fighting that saying it was not relevant to humans, we didn’t have enough data and what was one of the things that the science panel confirmed, testicular cancer. But nevertheless once those findings came out and these links were confirmed then anybody in the class who had one of those six diseases was able to move forward with an individual claim against DuPont in the agreement that we had reached under this written settlement agreement was once those links were confirmed by the independent panel, DuPont could not dispute that that chemical was capable of causing those diseases in these people who were defined by their dose level. This group that was studied was defined as being anybody who had been exposed for at least a year to more than 50 parts per trillion of PFOA in their water. So the group that was studied was defined by their dose level and once these claims started getting filed, we had about 3,500 people who filed cases seeking damages saying I drank this water, I drank it at those dose levels, I have one of these diseases. DuPont started filing documents and taking the position in those court cases that you know, you still have to prove that you had enough dose to have caused that. 

00:50:05

And we explained no that was part of the settlement was this group is already defined by their dose level that’s resolved. We had to battle that in court for over a year until the federal court in Ohio you know, basically upheld our settlement agreement and said no this is what was agreed to, you are bound by it DuPont you cannot be disputing that and fighting that in these court cases. So we were able to move forward and people were finally able to get compensated, we won every trial until DuPont decided they’d settle all of them in 2017. 

Jonathan Amarilio: So the juries in the first three cases — individual cases came back with a words of increasing amounts 1.6 million, 5.6 million, 12.5 million, everything’s trending your way, you’re perfecting your presentation of those cases obviously and the verdicts are increasing by orders of magnitude. DuPont sees the writing on the wall and as you said it enters into a global settlement that was for — was it 671-672 million? 

Rob Billot: In 2017 we settled those first 3,500 or so cases that were pending as of that point for about 670.7 million that was in 2017 and as you can imagine, everybody in that class once these links were confirmed with disease even the people who didn’t yet have disease they were entitled to free medical monitoring. DuPont was required under our settlement to pay up to 235 million in medical monitoring for that entire class, so people were continuing to be monitored and being diagnosed with disease so even after the settlement in 2017 we had dozens of more people who were diagnosed with cancer for example, those additional cases were filed and just recently we were able to settle approximately another 100 of those for another 83 million. So as of now there’s been total settlements for that class of about 753 million. 

Jonathan Amarilio: It’s remarkable. Let’s pull back from the case a little bit. And I know this is something that lawyers especially litigators, we’re warriors we don’t like to talk about you know, the personal toll that cases can take on us, it’s an inherently stressful job. We often take the worries and the pains of our client on our own shoulders year after year, case after case but this was different than most wasn’t it? There was a scene in the movie several scenes I should say that depicts you having physical health effects from the stress of this case and the toll that it also took on your family, can you talk about that a little bit? 

Rob Billot: Well yeah I mean this was — it was stressful, there were a lot of ups and downs in this litigation which is now in its 23rd year, I mean it’s continuing to this day and you know, particularly during the period of time where we had settled the class action, we had set up this scientific panel that was charged with confirming whether these diseases were linked with this chemical in the water or not you know, we’re waiting to see what’s going to happen from that process. Years are going by. People are calling you know, reporting about family members getting sick, the family members dying. Mr. Tennant passes away, his wife Sandra gets cancer and passes away you know, and as we’re waiting during this period of time, this is also when the economy starts to implode. Now this is 2008-2009 and you know, the economy is falling down around us and here we are you know, with this very expensive litigation going on, we’ve got thousands of people relying on the results of this and we don’t know you know, where it’s going to come out and it’s incredibly stressful and you know, during that period of time you know, I had this unusual issue develop as you see in the movie I talk about it in the book as well, this is sort of odd neurological symptoms that flared up and I’m happy to say you know, fairly much under control now but you know, I still don’t know what all that is or what caused all that but you know, it’s what happened. 

Jonathan Amarilio: Yeah, there’s a scene in the movie after you depose DuPont CEO where you’re getting in your car and it seems like you hesitate maybe even you’re afraid to turn the key in your car to turn it on presumably because you think it’s rigged to explode, presumably by DuPont, was that real? 

Rob Billot: You know, it’s based on an event and I again I mentioned this I describe it in the book as well where it was the event where I went to Wilmington, Delaware to take the deposition of DuPont’s CEO and you see that in the film and I had actually called my parents that night and I don’t remember why but I was talking to them and they were asking me where I was and I mentioned I’m at the DuPont hotel and they were questioning why of all places would I be there. 

00:55:10

And you know, who else had all of these documents, who else knows all of this and what would happen if you know, if you were out of the picture and I was starting to think about those things and then particularly after the deposition. You know, I was walking back to the parking garage, it was late in the day and it was fairly empty and I started thinking about those things particularly you know, after I knew that folks probably were not too happy with what had just happened in that deposition where I had shown the CEO all of the internal studies that DuPont was claiming you know, didn’t exist or you know, that showing them the adverse effects that they were claiming had never been found. So yeah those thoughts were swirling through my head when I walked to the car that day. 

Jonathan Amarilio: Yeah. Let’s jump back to the suit, so the fight continues you filed new PFOA lawsuits against whom, who are your clients, what are your claims and how’s it going? 

Rob Billot: Well you know, since the science panel’s work was completed in 2012 and the links between PFOA and disease were released in the scientific community, the regulators started to understand that and that led to the U.S. EPA for the first time starting to require public water supplies to go out and sample not only for PFOA but for the related PFOS chemical and you know, for the first time this stuff started being found in public water all over the country not because it wasn’t there before but because it was the first time people started looking for it, this is 2013-2014. And then the New York Times Magazine article came out in 2016 which summarized the whole history of this and pointed out the fact that these chemicals were being found in water supplies across the country. That prompted a lot of folks in different parts of the country to start calling U.S. EPA saying what is this stuff? Why is it in our water and what’s the safe level? Keep in mind in 2016, 15 years after I had sent my letter to the EPA telling them this stuff was in the water and asking for a safety guideline there was still not even a guideline from the U.S. EPA at that point for the stuff in the water. Four months after that article, the U.S. EPA came out with its very first drinking water guideline no more than 70 parts per trillion for PFOA and PFOS combined. Well the Department of Defense seeing that realized these chemicals had been used in firefighting films which they had knew were had been used in training exercises at military bases all over the country, they put together a list of hundreds of sites that may have used the foam they went out and started sampling sure enough by late 2016 these chemicals were being found in public water all over the country. So since that time, a whole new wave of lawsuits have started being filed as these chemicals and related replacements for PFOA and PFOS, things with six or four carbons C4, C6 are started going out of the market those are being found in the water. You have this new wave of lawsuits and they’re not only by communities who are finding out this is in the water but by public water providers who are having to spend millions of dollars to try to get this out of the water and filter it by states who are making claims from natural resource damages. So we have been involved now in trying to help these different groups, different states, water providers, others that are now having to deal with the costs of this massive contamination and there’s a whole new multi-district litigation now in South Carolina where hundreds of cases involving claims from exposure to firefighting foam are pending and we’re involved in that and I filed a new case at the end of 2018. As I see all of this happening and I see these additional PFAS chemicals being found and I hear arguments from the companies just like we heard 20 years ago when we first found out about PFOA. Well there’s not enough evidence to say whether they’re causing you harm. It occurred to me you know, people shouldn’t have to litigate for 20 years like we did over PFOA. But these companies that are putting these out into the environment knowing they’re going to get in our water into our blood, they shouldn’t be able to sit back and say you the exposed person, you don’t have enough evidence to show it’s harming you, so we can keep using it, no those companies should be paying to make sure the science is done and confirmed to tell us exactly what they’ll do to us. So I filed a new case in federal court in Ohio the end of 2018 seeking to bring a nationwide class action for everyone who has this larger group of PFOS chemicals in their blood and it’s not for money, not for damages, it’s to have basically kind of like what we did in West Virginia in one community with one chemical. 

01:00:05

But have nationwide studies of this larger group of chemicals so people will know exactly what they’re doing to us, but have the companies that put those out there be the ones paying for it, not the taxpayers, not the people who are exposed. So, all of that litigation is ongoing right now. We’re fighting over whether that nationwide case can go forward as a class action or not. So, a lot of litigation still going on with these chemicals and you know, we’re hoping, that forever chemicals aren’t generating for every litigation, there’s got to be a way to address this in a much more comprehensive way.

Jonathan Amarilio: Maybe treat it like asbestos or something like that?

Rob Bilott: Who knows? I mean, there’s got to be — there’s got to be a more effective way to make sure that the people who are truly responsible for having caused this problem despite knowing this would happen decades and decades ago, are the ones who are paying to clean this up and to address it, not the people who are the innocent victims here.

Jonathan Amarilio: That’s a good place for us to take a break. We’ll be right back with stranger than legal fiction.

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Jonathan Amarilio: And we’re back with stranger than legal fiction. The rules are simple, our audience knows them. I’ve found a real law that’s on the books somewhere but probably shouldn’t be because it’s just strange or absurd and I’ve made another one up or found one that has since been repealed and we’re going to test our guest to see if he can distinguish strange legal fact from fiction. Rob, are you ready?

Rob Bilott: Sure.

Jonathan Amarilio: All right. I picked West Virginia and Ohio for, you know, for obvious. All right? Option one, in West Virginia, it is illegal to whistle underwater. Option One. Option two–

Rob Bilott: Okay.

Jonathan Amarilio: In Ohio, it is illegal for women to wear patent leather shoes. Which one’s real?

Rob Bilott: I’m going to go with the whistling underwater in West Virginia.

Jonathan Amarilio: Why?

Rob Bilott: It just for whatever reason, it hits me like something that might exist.

Jonathan Amarilio: Well, you have great instincts, sir. That is the real one, although the Ohio one —the Ohio one was real, there was a law in Cleveland that has since been repealed and the purpose was to prevent men from seeing women’s underwear in the reflection of their shoes.

Rob Bilott: Okay.

Jonathan Amarilio: Now naturally, the lawmakers thought it was the women’s fault, not the pervs and incels who thought they could stare at women’s shoes in order to catch a glimpse of their panties, I suppose. But that’s an issue for another day. Rob, I’ve got to say, on behalf of my family, our listeners and every living creature on the planet with a circulatory system, I want to thank you truly. We heard some small part of the toll this crusade has taken on you and your family and I can only say that it is deeply appreciated by everyone who hears this story. Thank you.

Rob Bilott: Well thanks so much Jonathan. It’s really a pleasure to be able to talk with you and to me, you know, doing something like this is incredibly important, being able to discuss this story and get it out so that people understand why this impacts all of us everywhere. So, thank you.

Jonathan Amarilio: And that’s our show today. I want to again thank our guest, Rob Bilott of Taft Law for joining us and fighting for us, fighting for all of us. The book is Exposure: Poisoned Water, Corporate Greed, and One Lawyer’s Twenty-Year Battle against DuPont. I promise you it’s worth the read. I have two copies, I’ve read them twice. I also want to thank our executive producer Jen Burn, Adam Lockwood on sound and everyone at the Legal Talk Network family. Remember you can follow us and send us your comments, questions, episode ideas or just troll us on Facebook, Instagram and Twitter at CBAatthebar, all one word. Please also rate and leave us your feedback on Apple podcast, Google play, Stitch or Spotify or wherever you download your podcasts. It helps us get the word out. Until next time for everyone here at the CBA, thank you for joining us and we’ll see you soon At The Bar.

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The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, it’s officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer

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Podcast transcription by Tech-Synergy.com

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