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.

Firefighters have a host of tools available to them to fight fires. Some of these are simple, like high-pressure water. Others are more state-of-the-art, like forward-looking infrared handheld cameras and aerial drones. One of the special tools in a firefighter’s arsenal is aqueous film-forming foam, or AFFF. This “fire foam” has served as a highly effective fire suppressant for about half a century. Unfortunately, exposure to this substance has been linked to serious health problems, including cancer.

Let’s take a closer look at AFFF, its relationship to cancer and what it means for those who might have been exposed.

What Is AFFF?

AFFF is a special liquid that firefighters use to fight fires caused by flammable liquids, like gasoline and jet fuel. AFFF works by creating a foam layer over the flammable liquid, which makes it much harder for that liquid to burn.

The primary components in AFFF that gives it this fire suppression quality are perfluorooctanesulfonic acid (PFOS) and perfluorooctane acid (PFOA). Both of these chemicals belong to the family of per- and polyfluoroalkyl substances (PFAS), a group of compounds that are widely used in consumer products, such as stain repellant coatings and nonstick surfaces.

Given how effective AFFF is at putting out these types of fires, AFFF became widely used in many settings. These locations include airports, military bases and places where large amounts of flammable liquid might be kept. This includes petroleum refineries and storage facilities.

This meant that many firefighters, first responders and military personnel were exposed to large amounts of PFOA and PFOS through the on-the-job use of AFFF. Civilians may have also been exposed when the PFOS and PFOA from the AFFF contaminated the groundwater surrounding military bases, refineries and airports.

What helps make PFOA and PFOS so dangerous is that once it’s released into nature, it will persist for a very, very long time.

How Is AFFF Dangerous to People?

PFOA and PFOS can enter the human body in many ways. It can be orally ingested, absorbed through the skin or inhaled from the air. Then once in the body, it doesn’t pass through or get metabolized. Instead, it sits around and accumulates with each subsequent exposure.

When enough of either chemical builds up in the human body, it may cause a variety of health problems, including:

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

The idea that PFOS or PFOA might cause cancer is especially troubling. But there is not yet a conclusive link between cancer and PFOA and PFOS. Most studies so far either suggest an increased risk of cancer or show an increased risk that is so small, it may be statistically insignificant. The International Agency for Research on Cancer has concluded only that PFOA is “possibly carcinogenic to humans.”

It’s also not fully understood how PFOA or PFOS causes cancer in humans. At least one study found evidence that exposure to these chemicals might lead to cancer because the chemicals might:

• Suppress the immune system
• Increase the proportion of free radicals in the body
• Lead to rapid tissue growth
• Make changes to DNA
• Affect how cells communicate with each other

Even though the link between PFOS and PFOA with cancer is not known with 100% certainty, many manufacturers of these chemicals have stopped production.

Has Anyone Sued After Being Exposed to AFFF?

Yes. And these lawsuits have potential. That’s because there have already been a number of large personal injury legal settlements relating to PFAS or PFOS exposure.

For example, in 2017, DuPont and Chemours agreed to pay $671 million to settle thousands of cases where plaintiffs alleged that they became sick when PFOA allegedly leaked into local water supplies.

It’s this case that created the “C8 Science Panel,” which is one of the leading studies examining the effects PFAS may have in humans. The C8 Science Panel concluded that there was “a probable link between exposure to [PFOA] and testicular cancer and kidney cancer.”

In 2018, 3M settled a lawsuit for $850 million brought by the state of Minnesota. In this case, the state of Minnesota alleged that PFAS created by 3M had contaminated drinking water in the Twin Cities Metropolitan area.

Following in Minnesota’s footsteps, the state of Michigan has recently brought several suits for PFAS contamination due to the use of AFFF.

When it comes to AFFF lawsuits, most of the personal injury cases are in the multi-district litigation (MDL), In Re: Aqueous Film-Forming Foams Product Liability Litigation, MDL 2873. This MDL consists of about 500 cases in the U.S. District Court for the District of South Carolina.

Many of the plaintiffs are firefighters and allege that their personal injuries, such as cancer, are the direct result of exposure to PFOA, PFOS and/or precursors to PFOA and PFOS. A few of the major causes of action include:

• Negligence
• Products liability – defective design
• Products liability – failure to warn
• Misrepresentation and fraud

Some cases have been brought individually and others as a proposed class action. There are also dozens of defendants, although 3M is one of the most commonly sued company.

What’s Next for AFFF Litigation?

The AFFF MDL is still in the early stages of litigation, with some defendants still filing an answer while other litigants have begun discovery. And thanks to the coronavirus pandemic, the litigation will move even more slowly.

Even if this MDL reaches a global settlement, it will probably take a few years to get to that point, with at least a few bellwether trials being held before then.

In the meantime, if you want to know if PFOA, PFOS or other PFAS-related chemicals have been found in a water supply near you, the Environmental Working Group has an interactive map that shows the location of water tests that have shown various levels of PFAS contamination.