Lawyers Must File AFFF and PFAS Lawsuit by September 5, or Face New Requirements in MDL

Judge indicates that AFFF and PFAS water contamination lawsuits filed after the deadline will have short discovery deadlines, and new expert requirements.

In response to concerns over what is believed to be a massive number of unfiled aqueous film-forming foam (AFFF) exposure lawsuits, the U.S. District Judge presiding over the federal litigation is pressuring lawyers not to sit on the cases, indicating that new requirements will be imposed on any claims not filed by September 5, 2025.

Chemical and fire safety equipment manufacturers already face more than 11,000 AFFF lawsuits brought by both former firefighters and individuals exposed to contaminated drinking water, each raising similar allegations that toxic chemicals in the firefighting foam caused the development of testicular cancer, kidney cancer, ulcerative colitis, liver cancer, thyroid cancer and other diseases.

AFFF has been widely used by civilian and military firefighters since the 1960s, to combat fuel-based fires. However, the foam includes per- and polyfluoroalkyl substances (PFAS), which are a group of synthetic chemicals known for their resistance to heat, water and oil, which do not break down naturally and can accumulate in soil, water and the human body over time.

As a result of their persistence and bioaccumulation in the blood of firefighters and civilians’ drinking water, lawsuits seek to hold 3M Company, DuPont and other defendants accountable for failing to warn about the risks associated with direct exposure to the foam or consuming PFAS contaminated drinking water.

While the first in a series of AFFF lawsuit bellwether trials were scheduled to begin on October 20, 2025, the Court has put the start of those claims on hold, encouraging lawyers to file all cases for individuals they represent over the next three weeks, signaling a potential global settlement agreement may be close.

Since December 2018, all AFFF lawsuits have been centralized in the District of South Carolina as part of a multidistrict litigation (MDL) under U.S. District Judge Richard M. Gergel, who is overseeing coordinated discovery and pretrial proceedings.

To help the parties gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation, the Court has been preparing a small group of representative claims for bellwether trials. However, leading up to the start of the first trial, the parties have been directed to engage in AFFF lawsuit settlement talks, in hopes of reaching a massive agreement that could resolve the litigation globally.

Unfiled AFFF Lawsuits

Last month, Defendants raised concerns over information provided during court-ordered mediation, which suggested that lawyers represent tens of thousands of individuals with injury claims that have not yet been filed, which may impact the amount of any AFFF settement.

As a result, Judge Gergel issued an order last month calling for plaintiffs to provide information on the number of unfiled claims. It also called for lawyers appointed to a Plaintiffs’ Executive Committee to identify all law firms that have more than 100 unfiled personal injury AFFF lawsuits.

On August 15, Judge Gergel issued another case management order (PDF), calling on plaintiffs’ lawyers appointed to leadership positions in the litigation to file any outstanding claims by September 5, and encouraging all other lawyers to also file claims for any individuals they represent.

To facilitate a massive influx in cases, the Court indicates that lawyers can combine up to 150 plaintiffs onto a single complaint, and will allow any cases to be dismissed without prejudice if the lawyers later need to withdraw the claim, which would allow plaintiffs to bring their claim again in the future.

“The Filing Facilitation Window is being created to facilitate the filing of unfiled claims, and plaintiffs’ counsel are strongly encouraged to avail themselves of it

— U.S. District Judge Richard M. Gergel wrote.

For any AFFF lawsuits filed after September 5, Judge Gergel indicates that the plaintiffs will be held to a much more aggressive pretrial schedule, requiring a complete copy of all medical records and a Plaintiffs’ Fact Sheet within 90 days, and service of expert witness disclosures within 120 days after the lawsuit is filed.

There is speculation that the order signals the parties may be close to an AFFF lawsuit settlement agreement, and claims not filed prior to the deadline will be required to promptly submit the required proof that they are prepared to present their claim to a jury in short-order.

If a settlement agreement does not materialize, it is expected that Judge Gergel will move forward with several waves of bellwether trials. While the outcomes will not be binding on other claimants, the average amounts of any AFFF lawsuit payouts awarded by juries may help drive the parties toward a middle ground that resolves the litigation.