AFFF Water Contamination Lawsuit To Be Prepared For Bellwether Trial in January 2023

The U.S. District Judge presiding over all lawsuits over aqueous film-forming foam (AFFF) filed throughout the federal court system has scheduled the first bellwether trial to begin in January 2023, involving contamination claims brought by a water provider.

3M Company, Tyco Fire Products and Chemguard, Inc. face more than 1,400 product liability lawsuits filed by both individuals and municipalities nationwide, each involving similar allegations that the companies knew or should have known about the risks associated with exposure to poly- and perfluorinated compounds (PFAS) within its AFFF firefighting foam products, which have been widely used during training and response exercises nationwide over the last several decades.

In addition to lawsuits brought by former firefighters diagnosed with cancer, a number of the claims involve damages suffered by local water providers, who were left with 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 AFFF contamination lawsuits, the federal claims are all centralized in the U.S. District Court for the District of South Carolina under Judge Richard M. Gergel, as part of a multidistrict litigation (MDL).

In a Scheduling Order (PDF) issued on August 11, Judge Gergel outlined the schedule for the first of a series of bellwether trials, which will begin going before juries next year. The Court calls for expert depositions to be completed by April 13, 2022, motions for summary judgment and Daubert motions by June 1, 2022, and then Judge Gergel will choose which water provider case will serve as the first bellwether trial by September 30, 2022.

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.