A Middlesex County Superior Court judge has certified a class action lawsuit filed against Middlesex Water Company in regard to its notice to customers that their wells tested above state limits for the new perfluorooctanoic acid standard in October 2021.
“This case is now certified as a class action, meaning that the named plaintiffs are representatives for the much broader class of consumers,” said Michael Galpern, partner at Javerbaum Wurgaft Hicks Kahn Wikstrom and Sinins P.C., Voorhees, Camden County. “There are four subclasses also certified in this case, so every consumer who ingested the tainted water and received notice, whether they have an injury or are just obtaining medical monitoring, is now part of the case. This ruling significantly expands the group of people who are now part of the case, and who will benefit from any settlement in the case.”
Middlesex County Superior Court Judge Michael A. Toto certified the class action lawsuit on April 21.
Tomas Vera, of Avenel, who suffers from specific health concerns and a severely compromised immune system, filed the class action lawsuit in Middlesex County Superior Court on Oct. 29, 2021, seeking reimbursement for expenses incurred following the company’s drinking water notice, which was sent to customers on Oct. 22. Another notice went out on Nov. 1 expanding the notification.
Vera is joined by residents Joel Velez, Margaret Kennedy, Donna Zielinski, Michael Zielinski, Marco L. Nead and Renee Williams as plaintiffs in the lawsuit.
Attorneys Stephen P. DeNittis, Joseph A. Osefchen, and Shane T. Prince of DeNittis Osefchen Prince P.C., Marlton, Burlington County had filed the initial 17-page complaint on behalf of Vera.
Galpern and Zachary M. Green filed the complaint on behalf of a proposed class similar to Vera.
When Vera receiving Middlesex Water Company’s notice on or about Oct. 22, he did “exactly what the notice urged him to do.”
He followed the notice’s “written directives to consult with his doctor and buy bottled water as a substitute for his contaminated tap water. Vera “incurred out-of-pocket expenses, including a co-pay for that doctor’s consultation and the cost of bottled water, costs which were fully foreseeable to [the water company] at the time of the notice,” according to the complaint.
The notice included all residential and retail customers served by the water company’s Park Avenue treatment plant in South Plainfield. Residential and retail customers are in South Plainfield, Clark, Edison, Metuchen, Woodbridge and Carteret.
New Jersey is one of seven states that have enforceable regulation drinking water standards for perfluorooctanoic acid (PFOA).
Jay L. Kooper, vice president, general counsel and secretary for Middlesex Water Company, in a press release on May 4, said the Vera plaintiffs “have sued the wrong party, and all efforts should be made to hold the actual polluter of Middlesex Water’s Park Avenue facility, the 3M Company, accountable for their actions.”
Middlesex Water, which has served as a trusted water provider in the area for 125 years, has evidence to believe PFOA has been put into the ground by the 3M Corporation and has filed a lawsuit against the corporation in U.S. District Court for the District of New Jersey to recoup wellfield remediation costs.
Kooper said similar lawsuits have been filed across the country.
“Middlesex Water Company did not pollute its own water supply,” he said. “The Vera lawsuit is misguided, unnecessary, and even detrimental to the interests of the very people whom these class action attorneys represent. Every dollar Middlesex Water directs to this lawsuit is one less dollar realized from the litigation with 3M that could spare the very Middlesex Water customers the Vera attorneys claim to represent from having to pay the cost to remediate the PFAS pollution for the long-term.”
On Dec. 16, 2021, Middlesex Water announced, in a statement on its website, that it implemented an interim plan, which enabled them to turn off the wells in question and provides customers with water from alternate sources, which complies with all drinking water standards, including the new PFOA standard.
In addition, Middlesex Water is in the process of engineering an expanded temporary solution intended to keep the water supply below New Jersey’s maximum contaminant levels while the company completes construction of a water treatment facility to ensure the regulatory standard can be met for the long-term.
“At every step, Middlesex Water Company has proactively acted to protect the interests of its customers and to ensure the continued provision of safe and reliable water service,” Kooper said. “Part of these actions has been to ensure that the party that caused the exceedance of PFAS in Middlesex’s water supply, 3M Company, is the party held responsible for the remediation of the water supply. We call upon these class action attorneys in the Vera matter to do the same.”
PFOA is a member of the group of chemicals called per- and polyfluoroalkyl substances (PFAS), used as a processing aid in the manufacture of fluoropolymers used in non-stick cookware and other products by 3M, as well as other commercial and industrial uses, based on its resistance to harsh chemicals and high temperatures.
PFOA has also been used in aqueous film-forming foams for firefighting and training, and it is found in consumer products such as stain-resistant coatings for upholstery and carpets, water-resistant outdoor clothing, and greaseproof food packaging, according to the water company.
Current scientific research suggests exposure to high levels of certain PFAS over many years may lead to adverse health outcomes. They are referred to as “forever chemicals” because they do not break down and last in the environment for thousands of years, according to the water company.
Following the initial notice, municipalities held meetings with their respective residents with representatives from the water company explaining the notice of the exceedance of the PFOA drinking water standard, which officials said was a Tier 2 violation.
Municipalities affected by the water company’s drinking water notice, banded together to retain Vlasac and Shmaruk, LLC, Iselin, and Berger Montague PC, Philadelphia, to investigate the actions implemented by 3M and Middlesex Water Company to comply with federal and state safe drinking water standards.
With the notifications, Middlesex Water provided literature on PFOA treatment on its website as well as its notice to residents.
The notice stated people with specific health concerns, a severely compromised immune system, have an infant, are pregnant, or are elderly, may be at higher risk than other individuals and should seek advice from health care providers about drinking the water.
Dennis Doll, president and chief executive officer of Middlesex Water, noted at the meetings “because the science and research regarding PFOAs in drinking water is not yet mature, the medical field does not have any information.”
The New Jersey Department of Health advises that infant formula and other beverages for infants, such as juice, should be prepared with bottled water when PFOA is elevated in drinking water, the notice further stated, noting boiling water will not remove PFOA.
Women who are pregnant, nursing or considering having children may choose to use bottled water for drinking and cooking to reduce exposure to PFOA. Residents can consider installing in-home water treatment (filters) that are certified to lower the levels of PFAS in the water, according to information provided during one of the presentations the water company held.
For more information, contact the company’s Customer Service Department at 800-549-3802 or visit www.middlesexwater.com/alerts. Also, customers can visit the New Jersey Department of Environmental Protection website at www.nj.gov/dep/watersupply/pfas.