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.

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.