Plaintiffs in PFAS lawsuit call defense motion an ‘overreach’

Attorneys for the town of Stella property owners who allege the current and former owners of the Rhinelander paper mill are responsible for PFAS contamination detected in their drinking wells have responded to a recent defense motion to compel discovery.

In a 13-page brief filed on Feb. 9, attorneys for the plaintiffs insist their clients have been cooperating with proper discovery requests but the defendants’ latest request for additional documents is an “overreach” the court should not allow.

The defendants — Ahlstrom Munksjo, Wausau Paper and the chemical giant 3M — have asked the federal judge presiding over the lawsuit, filed in the United States District Court for the Western District of Wisconsin, to compel all 48 named plaintiffs, to respond to their request for the production of documents.

“Forty-eight named plaintiffs sued defendants, asserting property damage claims on behalf of three putative subclasses,” attorneys for the defendants wrote in their motion. “Yet despite voluntarily injecting themselves into this litigation as parties, 42 of those named plaintiffs contend that they can evade (defense) requests for production of documents concerning their property claims by ‘designating’ six other plaintiffs as class representatives.”

Allowing plaintiffs to ‘self-select the active class representatives’ to ‘leave discovery limited to the portion of the plaintiffs selected’ is inappropriate because it would skew the evidence regarding the claims,” they added.

While the defendants suggest the plaintiffs are impairing their ability to mount a defense, attorneys for the plaintiffs insist the defendants are trying to “prematurely expand discovery beyond its proper scope at this stage (in the litigation process), seeking merits-based information rather than class-related discovery.”

“Their argument amounts to little more than ‘because we know their names, we must have full access to them,’ but that is not the standard for pre-certification discovery,” the plaintiffs argue.

Attorneys for the plaintiffs also stressed that the defendants have already received detailed information “sufficient to address plaintiffs’ experiences related to the alleged presence of PFAS on their properties.”

The additional information the defendants are now seeking “will only serve to stall, delay and render more difficult the necessary work of preparing this matter for class certification,” they added.

“Even among the requests that have some tangential relevance to class certification, when applied beyond the class representatives, it becomes clear that the defendants are using discovery as a strategy to undermine class membership by emphasizing individual differences in plaintiffs’ properties,” the plaintiffs’ brief states. “Given this, discovery at this stage should focus on the class representatives who will be central to the forthcoming motion for class certification, with broader discovery postponed until after the class has been certified.”

The lawsuit, filed in August 2023, alleges that the spread of PFAS-contaminated sludge/fibercake from the Rhinelander paper mill on local farmlands contaminated private drinking wells. Ahlstrom has owned the mill since 2018, when it purchased the company from Wausau Paper. 3M is accused of providing products to the mill that contained PFAS.

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 human exposure to PFAS and adverse health effects and some of the Stella plaintiffs allege they have experienced health issues they attribute to PFAS contamination.

Stella residents became aware of the well contamination in late 2022 after the DNR conducted a statewide testing program. 

The defendants have mounted a vigorous response to the litigation from the outset, including opposing any attempt to have the lawsuit certified as a class action.

Among other things, they argue that land-spreading is a common practice, regulated by the DNR, that does not meet the legal definition of a “hazardous activity” as is required for the plaintiff’s strict liability claim to prevail.

As for the class action certification, the defendants argue that none of the plaintiffs’ claims meet the “rigorous standards” for class certification.

According to court records, a decision as to whether the case will be certified as a class action is not expected until February 2026 and the trial has been pushed back from September 2026 to March 2027.

Heather Schaefer may be reached at [email protected]