AFFF Injury Lawsuits to Begin Initial Core Discovery In Preparation For First Bellwether Trials

Throughout 2024, parties will exchange key documents and perform depositions to prepare a group of AFFF injury lawsuits to serve as test cases for a series of early trial dates.

The U.S. District Judge presiding over all aqueous film-forming foam (AFFF) injury lawsuits filed against manufacturers of the firefighting chemicals has given the parties 24 weeks to conduct core discovery on a pool of select cases, some of which will go on to be the first claims selected to go before jurors.

Each of the product liability lawsuits involves claims that individuals suffered personal injuries from drinking water that was contaminated with per- and polyfluoroalkyl substances (PFAS) used in the firefighting foam, particular around certain military bases where the chemical fire suppressants were regularly released into the environment.

AFFF foam has been used for decades by the U.S. military and local fire departments to combat fuel based fires. However, 3M Company, Tyco Fire Products, Chemguard, Inc. and other manufacturers involved in the sale of firefighting foam now face lawsuits alleging that they failed to disclose serious health risks associated with PFAS chemicals contained in AFFF, as well as the risk of widespread water contamination.

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

Many of the claims pending nationwide involve firefighter cancer lawsuits, brought by individuals who developed testicular cancer, kidney cancer, pancreatic cancer, prostate cancer and other forms of cancer from exposure during their firefighting careers. However, the MDL judge has prioritized preparing a series of AFFF water contamination lawsuits for the first trial dates, to help gauge how juries will respond to certain evidence and testimony that will be repeated throughout the litigation.

AFFF Injury Lawsuits Core Discovery

In May, Judge Gergel issued a case management order that directed the parties to prepare a list of 28 AFFF personal injury claims to serve as a bellwether pool. These cases focus on plaintiffs who say they were exposed to AFFF through drinking water contamination, as opposed to direct exposure.

The cases include eight kidney cancer claims, eight testicular cancer claims, eight thyroid disease claims and four ulcerative colitis claims. In addition, they are limited to 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.

The parties have turned in those lists, and in response, Judge Gergel issued a case management order (PDF) on December 19, indicating that the court has accepted the lists of potential bellwether trial cases, and outlining out how core discovery will conducted for the initial Personal Injury Bellwether Discovery Pool.

Core discovery will include parties exchanging relevant documents and information, such as medical records, and conducting limited depositions of plaintiffs and key witnesses and company officials. The order gives the parties 24 weeks to complete this phase of discovery.

“Following Core Discovery (a/k/a Tier One) in the Initial Personal Injury Bellwether Discovery Pool Plaintiffs cases, the Parties and Court will narrow the Initial Personal Injury Bellwether Discovery Pool Plaintiffs to a set of ‘Initial Personal Injury Bellwether Trial Pool Plaintiffs’ or ‘Personal Injury Tier Two’ cases,” Judge Gergel wrote. “Thereafter, the Tier Two cases will undergo additional discovery to become trial ready, including expert reports, expert discovery, and dispositive motions practice, with the Court setting a trial date for the first personal injury bellwether trial.”

AFFF Injury Lawsuit Bellwether Trial Selections

Eight weeks before the Core Discovery is to be completed, the parties are expected to propose a process for selecting the initial personal injury bellwether trial pool plaintiffs, and the process leading up to the selection of the first bellwether case to go to trial.

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 firefighter cancer settlement negotiations to resolve the litigation.

In addition to individual lawsuits brought by firefighters diagnosed with cancer and injuries caused by drinking contaminated water, the manufacturers also faced thousands of AFFF water provider lawsuits brought by cities, states and municipalities nationwide, seeking damages for the costs associated with removing the toxic chemicals from local water supplies

In June 2023, 3M Company agreed to pay over $12.5 billion in an AFFF water contamination settlement, to resolve claims brought by local water suppliers. However, there have not been any reported settlements in AFFF  \ injury lawsuits, and none of those individual claims have yet gone before a jury.