Court Urged To Combine 5 AFFF Lawsuits For First MDL Bellwether Trial

Plaintiffs indicate the kidney cancer and testicular cancer lawsuits involving AFFF water contamination should be consolidated into a single trial, to gauge how juries may respond in thousands of other cases.

Plaintiffs’ attorneys have asked the U.S. District Judge presiding over all aqueous film-forming foam (AFFF) lawsuits to combine five separate claims for the first bellwether trial in the federal MDL (multidistrict litigation), each involving individuals who developed kidney cancer or testicular cancer from contaminated drinking water.

The lawsuits are part of a massive litigation being pursued against 3M Company, Chemguard and other manufacturers of chemicals used in firefighting foam products, which contain per- and polyfluoroalkyl substances (PFAS) used to fight fuel-based fires.  

However, there is now increasing evidence that the chemicals can build up in the environment and human body, increasing the risk of several serious health problems, including kidney cancer, testicular cancer, liver cancer, ulcerative colitis, thyroid disease and other side effects.

More than 9,300 AFFF lawsuits are now being pursued by former firefighters and individuals living in areas where the foam contaminated drinking water supplies, particularly around airports, military bases and other firefighter training locations.

Given common questions of fact and law presented in the claims brought throughout the federal court system, the cases are currently centralized in the District of South Carolina as part of an AFFF lawsuit MDL, where U.S. District Judge Richard M. Gergel has been presiding over coordinated discovery and pretrial proceedings.

To help the parties gauge how juries may respond to certain evidence and testimony that may be repeated throughout the litigation, Judge Gergel previously directed the parties to prepare 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 or 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.

The number of AFFF bellwether cases has since been narrowed down to a smaller group that are now eligible to go before federal juries.

Plaintiffs Call for Consolidated AFFF Trial

On May 6, plaintiffs’ attorneys filed a motion (PDF) calling for five lawsuits selected for the bellwether trials to be consolidated and go before the same jury together, since they each raise similar allegations and involve individuals exposed to contaminated water near the same Pennsylvania military base. 

“These cases involve many common and overlapping facts regarding liability and general causation, include the same medical specialty (urology), are based upon the same common facts involving ingestion of contaminated drinking water resulting from use of the same aqueous film forming foams (AFFFs) in the very same community emanating from the very same source, utilizing the same law (Pennsylvania), against the same defendants, who all have virtually the same defenses, share many of the same experts, and the same counsel in each case,” the plaintiffs’ motion states. “Moreover, each of these Plaintiffs were heavily exposed to PFAS as a result of residing for decades in a community identified as highly contaminated, with average PFAS blood levels in the community at large far above the national average. These commonalities present good grounds for grouping these actions together for trial purposes to promote the just, speedy, and inexpensive determination of this proceeding.”

Plaintiffs indicate all five selections are representative cases of the litigation as a whole, and include three kidney injury claims filed by Clinton Speers, Brock Donnelly and Kevin Voelker. All three indicate they unknowingly consumed AFFF-contaminated drinking water from Pennsylvania water sources. The three men all underwent surgical procedures to treat their cancer, and have to undergo regular medical testing to ensure their cancer does not return as a result.

The remaining two plaintiff bellwether selections, filed by Michael Bien and Alex Field, involve claims of testicular cancer after years of exposure to AFFF-contaminated drinking water. Both men underwent a procedure to have a testicle removed and received chemotherapy treatment.

If Judge Gergel is not inclined to combine all five cases for the same trial, the plaintiffs indicate that the Court should at least combine the three AFFF kidney cancer lawsuits into one trial, and set the remaining two AFFF testicular cancer lawsuits for a second trial.

In a letter (PDF) sent the same day the plaintiffs’ proposal was submitted, Defendants involved in the cases indicate that they oppose any consolidation of cases for trial, indicating that such an arrangement could prejudice the jury. Therefore, defendants proposed that Voelker’s lawsuit be selected as the first, individual bellwether trial. 

AFFF Firefighter and Water Contamination Lawsuits

In addition to personal injury lawsuits brought as a result of drinking contaminated water, the manufacturers also face 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.

Previously the pretrial proceedings in the MDL were focused on claims brought by a number of local water suppliers, who were left with the costs associated with removing the toxic chemicals from U.S. water sources. However, in June 2023, 3M Company agreed to pay over $12.5 billion in an AFFF water contamination settlement to resolve those water provider claims.

The court is now moving forward with preparing a group of AFFF firefighter and water contamination lawsuits for trial, since there have not been any reported AFFF lawsuit settlements for personal injury lawsuits.

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.