Most of you reading this are aware that PFAS belong to a family of compounds that are widely used in products, such as fire fighting foam, stain repellant coatings, and nonstick surfaces. Attorney Clay Hodges has written about PFAS in Aqueous Film-Forming Foam (AFFF) on this blog site. Please check out those previous blog posts if you are looking for more specific information regarding AFFF. There have been recent developments in the litigation surrounding PFAS, which this article will dive into, as well as provide background information about the chemicals themselves. What are PFAS? Per- and Polyfluoroalkyl Substances are a group of man-made chemicals that have been used in various industrial and consumer products since the 1940s. Known as ‘forever chemicals,’ they take an extended amount of time to break down in the environment, and in the human body. There are thousands of different PFAS: Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS) are two of the most widely used PFAS, and are the subject of recent EPA regulation, which will be discussed later in this article. Exposure to PFAS Surveys conducted by the Center for Disease Control (CDC) show that the majority of people in the United States have been exposed to some quantity of PFAS. These chemicals can be found in drinking water, food, and food packaging products. They can also be found in soil and water near waste sites, as well as manufacturing facilities. It is also present in fire extinguishing foam (AFFF) as mentioned above and in previous posts. In addition, these forever chemicals can be found in household products, personal care products and dust around the house. All of which is to say: there is a good chance PFAS is in your body as you read this. Mine too. Certain individuals and activities create a heightened risk of exposure. Adults who work in industrial fields, and those who work directly with PFAS-containing materials are at a higher risk of exposure. Pregnant women drink an increased amount of water, and may be at risk if their water contains these harmful chemicals. Children are also at risk of heightened PFAS exposure as they drink more water, eat more food, and breathe more air per pound of body weight. Young children also crawl around on the floor, and put things in their mouths, which can lead to PFAS exposure in carpets, dust, and household products. Health Effects of PFAS Exposure

Current studies have shown a range of health effects resulting from PFAS exposure. The most prominent is the increased risk of prostate, testicular, and kidney cancer. In women, reproductive effects have been reported such as decreased fertility, and high blood pressure in pregnant women. Children have been known to have low birthweight, bone variation, and accelerated puberty when exposed to PFAS. These chemicals also reduce the ability of the body’s immune system to fight infections, as well as hinder vaccine response. Recent Regulatory Updates On May 8, 2024, the Federal Register released an article with huge implications regarding the use of PFAS. Prior to the release of this report, on April 17, 2024, the Environmental Protection Agency (EPA) deemed two PFAS: PFOA and PFOS, as hazardous substances. This designation is pursuant to Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In addition, the EPA has established the default reportable quantity (RQ) of one pound for the release of PFOA and PFOS, pursuant to CERCLA 102(b), meaning that the release of one pound into the environment has been determined to cause human injury. Any lower RQ would result in a total ban of the chemicals. What This Means for PFAS Litigation These new regulations will go into effect in July 2024, and will likely cause PFAS litigation to expand. CERCLA designation section 111(g) requires operators of any facility manufacturing or using PFAS to provide notice of the release of hazardous chemicals to potential injured parties via publication in local news sources. This means that the release of one pound of PFOA or PFOS requires a public announcement to any area who may be impacted by the release. For comparison, in 2022, over one million pounds of PFAS were released into the environment, with individual facilities releasing over 50,000 pounds. These numbers are astronomically higher than the new RQ of one pound. With the new EPA regulations, alongside the CERCLA designation, it will be much more difficult for facilities to meet the requirements for release of PFAS, and will create room for new litigation. Look for cities and states to bring litigation against manufacturers who violate these new regulatory requirements. Further, The New York Times recently reported that companies using or manufacturing PFAS should expect massive litigation in the years ahead. If you, or a loved one, have experienced adverse health effects that you believe may have been caused from exposure to PFAS, please first contact your medical provider. If these reactions have been severe, it may be worth the effort to evaluate your legal options. Please do not hesitate to reach out to attorney Clay Hodges with any questions at (919) 830-5602.

Back in June I wrote a blog post about a possible $1.185 billion settlement between several defendants in the Aqueous Film-Forming Foams (AFFF) Products Liability Litigation MDL No. 2873 (AFFF MDL). This is a large amount of money, but given how many people and municipalities may have been harmed, this is almost a drop in the bucket when it comes to how much more money could be at stake here. In fact, just a few weeks later, there was news of another viable settlement in the AFFF MDL.

The 3M Settlement

According to its June 22, 2023 press release, 3M announced a potential settlement with public water suppliers, many of which are plaintiffs in the AFFF MDL. The settlement amount will be at least $10.3 billion. This money would be used to help public water suppliers remove perfluoroalkyl and polyfluoroalkyl substances (PFAS) from municipal water supplies as well as fund continued water testing.

Under the settlement’s terms, the money would be paid out over 13 years and could amount to more than $12 billion if additional public water systems detect PFAS in their water.

Over the course of less than two months, the PFAS litigation has resulted in more than $11 billion in tentative settlements. Yet this is probably just the start of what’s to come.

The Potential Breadth of PFAS Litigation

PFAS are sometimes called “forever chemicals” because it’s difficult for PFAS to break down in the human body and in nature. PFAS easily dissolves in water, so PFAS spreads around the world through rain, rivers, and ocean currents. Some studies have found possible links between PFAS and cancer.

Then there’s the fact that PFAS was widely used in the consumer and commercial contexts. For example, it was used to make non-stick cookware, stain-resistant carpets, cardboard food packaging, cosmetics, and firefighting foams.

As a result, PFAS can be found almost everywhere. The Environmental Working Group reports that more than 200 million people in the United States could have PFAS in their drinking water. As if that’s not bad enough, a study found that 97% of Americans tested had PFAS in their blood.

So we have two major AFFF/PFAS settlements amounting to more than $11 billion. But those settlements largely concern public water suppliers, not individuals. Therefore, it doesn’t take much of an imagination to see how much more money and litigation are probably still forthcoming. It wouldn’t be surprising if PFAS litigation verdicts and settlements rival those from the asbestos and tobacco civil suits.

Individual PFAS Lawsuits

There are a lot of PFAS lawsuits involving individual plaintiffs, but many of them haven’t been resolved. The AFFF MDL also has a lot of cases featuring individuals as plaintiffs.

In May 2023, the judge in the AFFF MDL issued Case Management Order Number 26, which began the process of litigating many of the cases involving personal injuries. This process consists of two steps.

In step one, the court and parties will identify a group of cases involving personal injury plaintiffs where additional discovery will take place.

Step two requires the court and parties to examine the list of cases from step one, then further narrow down this list to find cases that will undergo even more discovery and prepare for bellwether trials. According to the case management order, the parties have until July 28, 2023 to identify cases for step one.

While this timeline can easily change over the next few months, it reveals that resolving PFAS lawsuits involving individual plaintiffs in the AFFF MDL will take a bit more time.

It should be noted that not all PFAS cases involving personal injuries are part of the AFFF MDL. For instance, a 2020 case in Ohio federal court resulted in a $40 million verdict for the plaintiff who alleged PFAS caused his cancer. The verdict was upheld on appeal, although now the defendant is appealing the case to the U.S. Supreme Court.

This Ohio case was one of more than 3,500 cases that were a part of the In Re: E. I. du Pont de Nemours and Company C-8 Personal Injury Litigation MDL No. 2433. (C-8 MDL). These lawsuits stemmed from the alleged discharge of a chemical called C-8 by DuPont in West Virginia. C-8 is also known as perfluorooctoanoic acid (PFOA), which is part of the same family of chemicals as PFAS.

Many of the cases in the C-8 MDL settled, likely with favorable terms for the plaintiffs. This is because the settlements came after two bellwether trials and one post-bellwether trial all went against DuPont. However, not all C-8 MDL cases were part of that settlement.

The C-8 MDL results don’t necessarily predict what will happen in the AFFF MDL or any other PFAS-related lawsuits. But it shows what’s possible. It also hints at how many more PFAS-related lawsuits are likely for the foreseeable future.

If you have any questions about the AFFF MDL or PFAS exposure in general, please give me a call at (919) 830-5602. I’ll do my best to answer your questions.

A while back I published a blog post discussing the potential health problems associated with aqueous film-forming foam (AFFF). Specifically, I discussed how it contained several chemicals (PFAS) that could potentially harm humans.

At the time of that blog post, some major litigation concerning AFFF had just begun. But a few years have now passed and we might have a potential settlement involving many of the litigants. Before I get to the settlement, let me provide some background information to better put things in perspective.

How Is AFFF Potentially Harmful?

AFFF contains a variety of chemicals, but two of the most relevant here are perfluorooctane sulfonate (PFOS) and perfluorooctane acid (PFOA). These chemicals are also used in other consumer products, like nonstick surfaces and stain-repellant coatings. They also belong to a family of chemicals called perfluoroalkyl and polyfluoroalkyl substances (PFAS).

When PFAS enters the human body, whether it’s ingested, inhaled or absorbed through the skin, it starts to accumulate. It doesn’t get metabolized or processed by the human body and it doesn’t get filtered out either. Over time, the amount of PFAS can build up in the human body and potentially cause health issues. Some of these problems may include:

• Prostate cancer
• High cholesterol
• Ulcerative colitis
• Testicular cancer
• Kidney cancer
• Bladder cancer
• Liver damage
• Immune system damage
• Pregnancy-induced hypertension
• Thyroid disease
• Ovarian cancer

The relationship between PFAS and cancer isn’t definitive, but studies suggest a possible link. Given the potential health risks from PFAS, many companies no longer use or make these chemicals.

Individuals may have been harmed by the AFFF through exposure during their jobs or from PFAS from the AFFF finding its way into their drinking water.

Pending PFAS Litigation

The primary focus of much of the litigation concerning AFFF, PFOA, PFOS and PFAS lies with the Aqueous Film-Forming Foams Products Liability Litigation MDL No. 2873 (AFFF MDL). This MDL (multi-district litigation) is before Judge Richard Gergel in the U.S. District Court for the District of South Carolina and he’s overseeing more than 4,000 lawsuits.

The plaintiffs include individuals and state and local government entities while the defendants include chemical companies like 3M, Tyco Fire Products, DuPont De Nemours (DuPont), Corteva and the Chemours Company (Chemours). Also included as a defendant is the U.S. government.

After litigation began, one of the major defenses that the chemical company defendants relied on was the government contractor defense. This was because much of the AFFF was used by firefighters working on military bases or on behalf of the federal government.

The government contractor defense basically says that a company doing business with the government can avoid legal liability in certain situations because they can sometimes share in the government’s legal immunity from lawsuits. However, Judge Gergel denied the motion for summary judgment that the defendants filed in August 2022 which relied heavily on this defense. This didn’t mean the defense wouldn’t work, but the defendants would have to wait until trial to present this defense.

Possible Settlements

On June 2, 2023, three defendants in the AFFF MDL announced a tentative settlement agreement amongst themselves. The defendants subject to this agreement included Chemours, DuPont and Corteva. The settlement would only apply to certain plaintiffs, largely municipal public water systems.

The three defendants will contribute $1.185 billion to a settlement fund. DuPont would provide about $400 million, Corteva approximately $193 million and Chemours contributing the bulk of the settlement money of roughly $592 million.

What’s Next?

These three defendants hope to finalize the settlement agreement over the next month or so, although there are two potential hurdles before the settlement becomes official.

First, Judge Gergel has to approve the settlement. Second, assuming the judge approves the settlement, enough plaintiffs must consent to the settlement and opt into it. If too many plaintiffs decline the settlement, then Chemours, DuPont and Corteva reserve the right to cancel the settlement and proceed to trial.

Another thing to keep in mind is that even if this settlement gets approved and enough plaintiffs accept it, there will still be many plaintiffs and defendants in the AFFF MDL that still have pending cases that could go to trial or get settled at a later time. For example, 3M, another prominent defendant in the AFFF MDL is rumored to have agreed to a settlement of at least $10 billion.

If you’d like to learn more about this litigation or think you might have been affected by AFFF, don’t hesitate to contact me (direct line) at (919) 830-5602. And if you’re curious about whether AFFF has potentially contaminated your drinking water, you can check out the Environmental Working Group’s PFAS Contamination in the U.S. map.