Additional AFFF Ulcerative Colitis Lawsuits Added to Bellwether Discovery Pool

Judge issued a new discovery schedule after the addition of three new AFFF lawsuits involving ulcerative colitis allegedly caused by toxic chemicals in the firefighting foam.

The U.S. District Judge presiding over all federal aqueous film-forming foam (AFFF) lawsuits has added three ulcerative colitis claims to a group of bellwether cases being prepared for early test trials, to gauge how jurors respond to evidence that toxic chemicals in the firefighting foam caused the development of various types of cancer and other ailments.

3M Company, Tyco Fire Products, Chemguard, Inc. and other manufacturers involved in the sale of AFFF-based firefighting foam face more than 8,000 lawsuits nationwide, each alleging they failed to disclose serious health risks associated with firefighting products used widely by the U.S. military and local fire departments for decades, which have caused widespread water contamination in communities nationwide.

AFFF products have been sold with toxic per- and polyfluoroalkyl substances (PFAS), which includes a group of more than 9,000 man-made chemicals that are used to resist grease, oil and water. They help AFFF products fight petroleum-based fires. However, there is now increasing evidence that these chemicals can build up in the environment and human body, causing a number of serious side effects.

Numerous studies and surveys have shown that PFAS chemicals in firefighting foam often find their way into local water supplies, particularly around military bases, airports and firefighter training locations. Many of these compounds have been found to increase the risk for ulcerative colitis, testicular cancer, kidney cancer, liver cancer and thyroid disease.

Given common questions of fact and law presented in the claims brought throughout the federal court system, all AFFF lawsuits are currently centralized before U.S. District Judge Richard M. Gergel in the District of South Carolina, for coordinated discovery and a series of early bellwether trials.

Over the past year, Judge Gergel has been overseeing the preparation of a group of 28 AFFF injury claims for bellwether trials, with the first cases focusing on individuals who developed kidney cancer, testicular cancer, thyroid disease and ulcerative colitis. 

The Court originally included eight kidney cancer claims, eight testicular cancer claims, eight thyroid disease claims and four ulcerative colitis claims in the bellwether process. In addition, lawsuits were only eligible for a potential bellwether trial if they involved individuals alleging they were exposed to contaminated water near Peterson Air Force Base, Colorado Springs Municipal Airport, the Willow Grove Naval Air Station Joint Reserve Base and the Naval Air Warfare Center in Warminster.

Additional AFFF Ulcerative Colitis Lawsuits

Last December, Judge Gergel called for the parties to select between two and four additional AFFF ulcerative colitis lawsuits to be added to the pool of potential bellwether cases. In March, lawyers responded with a list of three such claims, which the Court has now accepted.

On April 25, Judge Gergel issued a scheduling order (PDF), amending the discovery schedule to accommodate these additional claims, known as Tier 1 Group B cases.

The schedule gives the parties until August 11, 2025, to complete discovery for the Tier 1 bellwether pool cases. He also gave the parties the option of selecting some of the additional claims to be included in a second wave of bellwether lawsuits, which are also under preparation.

In addition to individual lawsuits brought by drinking contaminated water and firefighters diagnosed with cancer due to exposure through their profession, the manufacturers also faced thousands of AFFF firefighter lawsuits involving claims that direct exposure to chemicals while spraying the foam led to the development of injuries for civilian and military fire safety personnel.

In June 2023, 3M Company agreed to pay over $12.5 billion in an AFFF water contamination settlement to resolve other claims brought by local water suppliers, which have been left with the costs associated with removing the toxic chemicals from U.S. water sources. However, there have not been any reported settlements in AFFF personal injury lawsuits, and none of those individual claims have yet gone before a jury.

While the outcome of these early bellwether trials will not have any binding impact on other claims, it is expected that the amount of any AFFF lawsuit payout awarded by juries may influence future cancer settlement negotiations to resolve the litigation.