AFFF Lawsuits Over Water Contamination To Be Ready For Trial To Begin By March 2023

The U.S. District Judge presiding over all aqueous film-forming foam (AFFF) lawsuits has pushed back the start date for the first bellwether trial to March 2023, involving claims over water contamination caused by the firefighting foam chemicals.

3M Company, Tyco Fire Products and Chemguard, Inc. face more than 2,400 product liability lawsuits filed by both individual firefighters, as well as local water suppliers, each involving similar allegations that the companies knew or should have known that AFFF firefighting products would result in widespread exposure to per- and polyfluorinated compounds (PFAS), both among individuals working with the foam and communities that would be left to deal with water contamination problems.

AFFF Lawsuits brought by former firefighters indicate that the PFAS chemicals in the foam caused the development of various types of cancer, including testicular cancer, prostate cancer, pancreatic cancer and other injuries. However, local water providers are pursuing damages for the costs associated with cleaning up the chemicals that leached into water supplies near military bases, airports and other training locations.

Given common questions of fact and law presented in the litigation, the federal claims are all centralized in the U.S. District Court for the District of South Carolina under Judge Richard M. Gergel, for coordinated discovery and pretrial proceedings, where a group of water contamination cases are being prepared for early trial dates to help gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the claims.

In August 2021, Judge Gergel originally scheduled the first series of bellwether trials to begin in January 2023. However, according to a new case management order (PDF) issued on May 5, that date has been pushed back to at least March 1, 2023.

Judge Gergel’s order indicates the schedule is being altered to allow “for some additional time for Tier Two fact discover and amends certain remaining deadlines accordingly.”

The new schedule calls for expert discovery for cases selected for the bellwether pool to complete expert depositions by July 28, 2022. Itr orders parties to file motions for summary judgment and Daubert motions by August 15, 2022, with recommendations for the first bellwether trial case to be submitted by October 14, 2022.

The order indicates the court will choose the first bellwether trial case by December 2, 2022 with pretrial motions and motions in limine due by January 9, 2023. Jury selection and trial would begin on or after March 1, 2023.

The order came after both a plaintiffs’ letter (PDF) and a defendants’ letter (PDF) calling for deadlines in the cases to be extended by four weeks.

Firefighter Foam Health Concerns

PFAS were first introduced into the manufacturing industry in the 1940’s, because of their ability to resist heat, grease, stains, and water. However, since then the chemicals have been linked to a myriad of adverse health effects including liver damage, thyroid disease, decreased fertility, high cholesterol, obesity, hormone suppression, and cancer.

It is projected to take thousands of years for PFAS chemicals to degrade, and past studies have shown their ability to enter and stay in the environment and human body through the air, dust, food, soil, and water. Previous U.S. Centers for Disease Control and Prevention studies have shown PFAS chemicals primarily settle into the blood, kidney and liver, and could likely be detected in the blood of 98% of the U.S. population.

The chemical substances are used to manufacture a number of products, including some food packaging materials, pizza boxes, popcorn bags, fabrics, nonstick cooking pans, and other products.  However, it is perhaps most known for its use in firefighting foams used by military and civilian firefighters.

While these cases specifically focus on lawsuits filed by water providers over the contamination of water sources, many of the firefighter foam lawsuits have been filed by individuals, often former firefighters, who say they developed cancer due to years of exposure.