In 2017, firefighters filed a lawsuit against manufacturers of per- and polyfluoroalkyl substances (PFAS). Sharing a carbon-fluorine bond, these chemicals are extensively used in producing Aqueous Film Forming Foam or AFFF.
Due to its low viscosity, it is a type of firefighting foam classified as Class B. The foam had been used in the firefighting industry for decades to put out fast-spreading liquid-fuel fires. However, it was alleged that prolonged exposure to AFFF had caused injuries like cancer of the kidneys, bladder, and testicles.
In 2018, all lawsuits were consolidated into a multi-district litigation (MDL) – number 2873. It has been nearly seven years since the litigation started. In this article, we will discuss the current status of the AFFF MDL as well as its future scope.
One Half of the Litigation Resolved
As per TruLaw, the firefighting foam litigation gradually branched into two separate categories. One was the personal injury lawsuits filed by firefighters and other military personnel. The other half was filed by municipalities suffering from water contamination.
Essentially, PFAS are not only toxic to humans but these chemicals also pollute the environment. What’s worse is that they may have an eternal nature in the sense that they do not break down easily.
In 2023, the initial half of Bellwether trials for the AFFF foam lawsuit were held. Florida’s City of Stuart case became the one that went to trial proceedings. The outcome leaned on the plaintiffs’ side despite the defendant’s attempts to avoid fair compensation.
Finally, 3M agreed to privately negotiate with all municipalities. The company promised to pay a heavy sum of $10.3 billion over 13 years for PFAS identification and remediation. Once the overall settlement was made, it became easier for plaintiff attorneys to determine individual case payouts. In a nutshell, one-half of the firefighting foam litigation was resolved last year.
Court Shifts Focus to Personal Injury Cases
Towards the end of 2023, both sides expected the court to take up personal injury cases right away. However, that was not to be since another class of water contamination cases was found to be pending.
These lawsuits were filed against Telomere-based AFFF, which consists of 30% to 50% less PFAS. This means Telomere-based AFFF would contaminate underground water but its effects are not comparable to regular AFFF. Naturally, such cases called for separate Bellwether proceedings.
Plaintiff lawyers continued to showcase their frustrations because many of their clients were advanced in age or frail due to disease. In the meantime, a couple of them succumbed to their injuries, having their cases turn into wrongful death lawsuits.
As 2023 came to a speedy close, the court’s attention moved towards personal injury cases, even PFAS found in firefighting turnout gear. Numerous veterans had alleged that traces of PFAS found in their personal protective equipment (PPE) were responsible for their injuries.
As both parties prepared for Telomere-based AFFF lawsuit trial proceedings, personal injury cases were also receiving their due attention. Even so, it was difficult to ascertain whether any concrete conclusion could be expected in 2024.
Current Litigation Status and Filings
As PFAS in turnout gear also received the court’s attention, monthly case volumes began to rise significantly. Until now, over 9,000 cases are awaiting settlements.
In February 2024, it was possible to witness the spirit of Spring in the firefighting foam litigation. This is because the court paved the way for personal injury case pretrial proceedings.
From the very beginning, there have been debates regarding which diseases belong to the AFFF litigation. Currently, it is a free-for-all situation since the science behind PFAS toxicity is still evolving. Shortly, this should be narrowed down to ensure individual cases are dealt with fairly.
The court will hold a Science Day where expert witnesses will have the chance to present evidence for diseases associated with AFFF. The court had asked both sides to prepare a Case Management Order (CMO) for Tier II personal injury trial proceedings.
Although the deadline for the same has passed, a joint motion was filed, requesting an extension of 15 days. This means the CMO will now be submitted by April 24th, 2024. Will it alter existing deadlines and milestones in the litigation? It seems unlikely because the extension is sought purely to enhance the quality of the agreement.
From what we have discussed, it may be deduced that personal injury lawsuits in the AFFF litigation will not be settled in 2024. In fact, it is unlikely that Bellwether trials for the same will be held within this year.
Plaintiff attorneys are against all manner of delays. In any case, it may take another year before an overall settlement amount is available for the plaintiff’s counsel. We can expect individual payouts to begin by the end of 2025 (provided no further delays are made).
