Defendants signal intent to fight effort to certify PFAS lawsuit as a class action

A recent filing in the federal drinking water contamination lawsuit lodged by a group of Town of Stella property owners indicates the complex litigation that began in August 2023 is a long way from any sort of resolution.

The parties’ Rule 26 report, filed on June 4, includes a set of proposed deadlines extending to December 2025.

The report also notes that the defendants — Ahlstrom-Munksjo, Wausau Paper (the current and former owners of the Rhinelander paper mill) and chemical giant 3M — intend to “vigorously oppose” any motion by the plaintiffs for class certification.

It is defendants’ position that none of the plaintiffs’ claims can meet the “rigorous standards” for class certification, the report states.

A Rule 26 report is required under federal rules governing civil litigation. Attorneys for all parties must “meet and confer” as to the nature and basis of their respective claims and defenses and develop for court approval a clear plan for the discovery process.

The original complaint, alleging that the spread of PFAS-contaminated sludge/fibercake from the Rhinelander paper mill on local farmlands contaminated private wells in the small eastern Oneida County township, was filed in August 2023. At that time, there were six plaintiffs.

An amended complaint, filed in February, listed 43 plaintiffs.

PFAS are a group of man-made, fluorinated chemicals manufactured and used since the 1940s. Because they are designed to be stable and unreactive to water, grease, heat, and other elements, they are often referred to as “forever” compounds. Studies have shown a link between exposure to PFAS and adverse health effects.

The amended complaint alleges the plaintiffs have experience various health issues including kidney cancer, kidney disease, thyroid disease and high cholesterol.

The contamination in Stella was discovered in late 2022 through a DNR-led state testing program. As of April, the agency reported that 56 private wells in the Stella area have been found to have concentrations of PFAS that are greater than recommended health guidelines.

“The town of Stella and many of the properties tested to date show some of the highest levels of PFAS contamination found anywhere in the United States with wells showing PFAS as high as 40,000 (parts per trillion),” the plaintiffs state in the Rule 26 report. “Some individual wells may have the highest levels of contamination ever identified in private wells, in some cases thousands of times over the EPA’s maximum contaminant limit.”

In their “statement of case” included in the report, the plaintiffs reference the “unique chemical properties of the PFAS chemicals utilized by the paper company” and suggest there may have been other suppliers in addition to 3M.

“The Rhinelander Paper Mill deposited thousands of tons of the hazardous waste containing paper pulp over the fields around Rhinelander over the course of decades,” the report states. “Because of the unique chemical properties of the PFAS chemicals utilized by the Rhinelander Paper Mill and supplied in part by 3M, these forever chemicals were able to leach from various agricultural fields where the pulp was deposited into the groundwater that feeds the wells of the surrounding communities.”

“Although it is nearly axiomatic (self-evident) that any PFOS found in the Rhinelander Paper Mill’s waste streams came from 3M, there remain additional probable suppliers of PFAS to the paper mill who remain to be identified through discovery,” a footnote included in the report reads.

For their part, the three companies have mounted a vigorous response, with each filing a motion to dismiss the lawsuit. Among other things, they’ve argued that land-spreading is a common practice, regulated by the DNR, that does not meet the legal definition of a “hazardous activity”. 

In their “statement of material issues” included in the report, the defendants note there is a question as to “whether Plaintiffs can demonstrate that any PFAS from papermaking biosolids from the Rhinelander Paper Mill reached each of the individual private wells at different locations in Oneida County.”

According to the defendants, other issues to be resolved include:

• Whether Plaintiffs can demonstrate that Defendants owed any of the individual Plaintiffs a duty of care, considering the various time periods, locations, disclosures, individual knowledge, and other context-dependent issues involved in this complex litigation, as required to prove negligence;

• Whether Plaintiffs can demonstrate that the Ahlstrom Defendants or the Wausau Paper Defendants acted negligently in connection with the application of papermaking biosolids from the Rhinelander Paper Mill to any of the various farmland locations in Oneida County, considering the varying topography, time periods, disclosures, and regulations;

• Whether Plaintiffs can demonstrate that the application of papermaking biosolids to farmland pursuant to a state regulatory program, permits, and public and individual disclosures is an “abnormally dangerous activity” giving rise to strict liability;

• Whether Plaintiffs can demonstrate that 3M is strictly liable to Plaintiffs because 3M PFAS products caused harm to Plaintiffs and were defectively designed;

• Whether Plaintiffs can demonstrate that 3M is strictly liable to Plaintiffs because 3M failed to provide adequate warning regarding 3M PFAS products that caused Plaintiffs’ harm;

• Whether Plaintiffs can demonstrate that the alleged acts of Defendants interfered with any Plaintiff’s particularized use and enjoyment of his or her individual property and whether such interference was substantial and unreasonable based on the facts and circumstances of each Plaintiff;

• Whether Plaintiffs can demonstrate that Defendants’ alleged acts and any effects of those acts, including the underground movement of PFAS compounds, constitute trespassory entry onto each Plaintiff’s property, given the differing locations, topography, and underground water movement for each of them;

• Whether Plaintiffs can demonstrate that the presence of PFAS on any particular property, and any of Plaintiffs’ different injuries and damages, was proximately caused by any alleged act of Defendants and not by any other sources of PFAS within or near Oneida County;

• Whether Plaintiffs can demonstrate that the property value for each of their properties was harmed and that any such harm was caused by the presence of PFAS compounds and not by changes in the property markets, considering the various factors that comprise the ongoing valuation of residential property in the area;

• Whether Plaintiffs can demonstrate that each of them sustained economic or non-economic damages as a result of the alleged acts of Defendants; and

• Whether any Defendant’s alleged conduct with respect to each individual Plaintiff supports any award of punitive damages.

The next step in the process, according to the report, is extensive discovery related to the question of whether the lawsuit should be certified as a “class action”.

According to the Cornell Law School online legal encyclopedia, the requirements for a class actions are as follows:

• The number of class members renders it impracticable to join them in the action

• The class members’ claims share common questions of law or fact

• The claims or defenses of the proposed class representatives are typical of those for the rest of the class, and

• The proposed class representatives will adequately protect the interests of the entire class. 

The proposed deadlines included in the report indicate the parties do not expect the court to rule on the question of class certification until late December 2025 at the earliest.

The  report indicates the parties believe it will take at least three weeks to present the case to a jury.

Heather Schaefer may be reached at [email protected].