Dallas Bar Association
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May 2019 Volume 44 Number 5
Focus | Energy & Environmental Law
Duffee + Eitzen Honors Judge Merrill L. Hartman’s Legacy BY MICHELLE ALDEN
In 1997, the Dallas Bar Association and Legal Aid of NorthWest Texas joined their previously separate pro bono programs to create the Dallas Volunteer Attorney Program (DVAP). The now 22-year-old program combines the volunteer resources of the Dallas Bar Association with Legal Aid’s expertise in providing legal help to the poor. Today, DVAP is the largest and most comprehensive provider of pro bono legal services in Dallas. The program is recognized locally, regionally, and nationally as a leader in the pro bono community because of its unique partnership between a bar association and legal aid organization. Currently, legal aid programs around the nation face a crisis over how to pay for the legal aid services they provide. Committed volunteers provide their legal services free of charge; however, funds are needed to coordinate clinics, recruit volunteers, train and mentor volunteers, and oversee the thousands of cases that DVAP handles every year. Federal and state funding are tied to legislative support for legal aid to the poor, which has, unfortunately, not been a high enough priority in recent budgets. Federal and state funding cuts threaten the future of DVAP
Focus
Melinda Hartman Eitzen and Lisa Greenwood Duffee shown with a photograph of Judge Merrill Hartman.
and other legal aid programs across Texas and the United States. Rather than waiting for the next round of funding cuts, the
Dallas Bar Association has taken a proactive approach by creating an endowment named the Justice Forever Fund (the Fund). The
Fund exists to create and maintain longterm funding to secure legal aid to the poor in Dallas should traditional funding methods shrink or cease to exist. Accordingly, the Fund functions to provide a dependable safeguard to the DBA’s efforts to help fund pro bono legal services, and it shall be used solely for the support of DVAP. The firm of Duffee + Eitzen has stepped up to support the Fund with a gift of $50,000 in honor of the memory of Melinda Eitzen’s father, Judge Merrill L. Hartman. Judge Hartman is associated with many firsts in the Dallas legal community: he was the first full-time tax fraud prosecutor for the U.S. Attorney in Dallas, the first judge to allow jurors to take notes, and the first judge on the family law bench to require mediation in child custody cases. Judge Hartman was also known as the “Father of Pro Bono,” as he cofounded the first free legal clinics in Dallas. He recruited and encouraged other lawyers to do pro bono work, and his efforts became the foundation and the blueprint for DVAP, as well as other clinics across the state and nation. In addition, he began hearing cases at night court at the clinics to continue to bring the legal system to those who live in continued on page 20
Energy & Environmental Law
PFAS Litigation: The Fight for Safe Drinking Water BY MAJED NACHAWATI AND S. ANN SAUCER
In December 2018, the Panel on Multidistrict Litigation (the Panel) created MDL 2873 to coordinate cases concerning synthetic carcinogens that have contaminated water supplies nationwide. MDL 2873 coordinates cases alleging contamination by aqueous film-forming foams (AFFFs) used to extinguish liquid-fuel fires. In these cases, Plaintiffs allege that AFFFs used at airports, military bases, and industrial locations’ contaminated drinking-water supplies. At the time of the December coordination order, seventy-five AFFF actions were pending in eight districts, and the Panel predicted that this number will grow significantly. Two types of plaintiffs are included in MDL 2873 cases. Thousands of individual plaintiffs have filed suit for personal injuries, medical monitoring, and property damage. In addition, the State of New York and municipal entities have sued to recover the costs of remediating their water supplies. AFFFs contain PFOA (perfluorooctanoic acid) and PFOS (perfluorooctane sulfonate), which are among the substances known under the umbrella term PFAS. In addition
to AFFFs, products made with PFASs include non-stick cookware, water-repellent clothing, stain-resistant fabrics and carpets, some cosmetics, and products that resist grease, water, and oil. The Panel refused to include nonAFFF cases in MDL 2873, finding insufficient commonality. PFOA and PFOS have been phased out of production and use in the United States, yet exposure to these toxins is widespread. These non-biodegradable chemicals migrated into the environment, polluting soil, air, and water. One major avenue of harmful exposure is through drinking contaminated municipal or private well water. Workers involved in making or processing PFAS- and PFAS-containing materials also sustained toxic exposures. The Environmental Protection Agency considers PFASs to be emerging contaminants and has issued a health advisory for PFOA and PFOS, which are referred to as “forever” chemicals. Studies have shown that PFOS and PFOA can be found in the vast majority of Americans’ blood and pose significant health threats given their toxicity, mobility, and bioaccumulation potential. Studies of PFAS exposure have shown deleterious effects on growth, learning,
and behavior of infants and older children; impeded fertility in women; other hormonal interference; increased cholesterol; damage to the immune system; and cancer, including prostate, kidney, and testicular cancers. PFAS toxicity is being studied by the Agency for Toxic Substances and Disease Registry (the “Agency”), which is directed by Congressional mandate to survey and catalogue the public-health effects of hazardous substances in the environment. As concern over PFAS exposure has mounted, the Agency and state health partners are investigating toxic exposure and the ensuing health problems in more than thirty communities nationwide, with many more communities believed to have been affected. Identifying the responsible party defendants can be challenging in this type of litigation. Generally speaking, liability theories have been tied to sales or to specific sites, with some defendants bearing liability for both, and with some cases naming defendants in both categories. Most cases in MDL 2873 name the sellers of AFFFs as defendants, including 3M Company; Buckeye Fire Equipment Co.; Tyco Fire Products, LP; Chemguard, Inc.; National Foam, Inc.; and Kidde-Fenwal, Inc.
Inside 8 Practice Tips for Transactions Involving Environmental Matters 13 Getting the Word Out About Mental Health 17 Like Kind Exchanges of Oil & Gas Rights 21 The Murky Waters of the United States
Another group of defendants are those responsible for the sites themselves. For example, an Alabama suit against 3M Company challenges its Decatur manufacturing facilities. The City of Newburgh sued federal and state governmental entities in addition to corporations in a case raising federal environmental law claims in addition to common law causes of action. As an example of litigation naming defendants from the point-of-sale to site disposal, a Michigan class action named 3M for making and selling ScotchguardTM; Wolverine World Wide, Inc. for using and dumping it; and Waste Management defendants for owning and operating the disposal site landfill. The Panel previously had centralized other PFAS contamination litigation. In 2017, DuPont and Chemours Co. settled more than 3,000 personal injury claims for $671 million. In 2018, 3M settled with Minnesota for $850 million. We predict that future MDLs will be created for other types of PFAS contamination. Safe water supplies are worth the fight. HN Majed Nachawati is a founding partner of Fears Nachawati and can be reached at mn@fnlawfirm.com. S. Ann Saucer is Of Counsel at Fears Nachawati and can be reached at asaucer@fnlawfirm.com.