Link Between AFFF and Liver Cancer, Thyroid Cancer To Be Examined by MDL Court

Judge will hold a “Science Day” on June 6, 2025, to allow the parties to make educational presentations on the risk of thyroid and liver cancer from firefighting foam chemicals.

The U.S. District Judge presiding over all federal AFFF lawsuits, involving allegations that toxic chemicals in the firefighting foam caused firefighters and other individuals to develop various types of cancer, has asked lawyers involved in the litigation to file proposed schedules for the court to evaluate the risk of liver cancer and thyroid cancer.

AFFF (aqueous film-forming 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 more than 8,000 lawsuits alleging that they failed to disclose serious health risks associated with exposure to toxic chemicals contained in the foam, as well as the risk of widespread water contamination.

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.

In 2023, Judge Gergel established a process to prepare a group of AFFF injury claims for early test trials, involving lawsuits over the development of kidney cancer, testicular cancer, thyroid disease and ulcerative colitis. However, the Court indicates it is now ready to begin addressing general causation issues in lawsuits involving liver cancer and thyroid cancer as well.

That first AFFF lawsuit bellwether pool is limited to claims involving kidney cancer, testicular cancer, thyroid disease and ulcerative colitis injuries, which are being prepared for early trial dates to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout claims involving those injuries.

However, while moving forward with discovery in those cases, Judge Gergel directed the parties to identify a second group of injuries that should be prepared for trial, and plaintiffs indicated in March 2024 that thyroid cancer and liver cancer injuries should be considered by the court in the second round of AFFF bellwether trials.

In a text-only docket entry issued last week, Judge Gergel indicates that the Court is now considering issuing a case management order to establish deadlines for preparing expert reports on general causation involving liver cancer and thyroid cancer.

The parties have been asked to submit joint or competing proposals by February 21, which should include deadlines for expert reports and rebuttals, expert depositions and briefings on challenges to the admissibility of the testimony at trial.

On the same day, Judge Gergel issued another text-only order, announcing that the court will hold a “Science Day” on June 6, 2025, to allow the parties to make educational presentations on scientific issues that will come up regarding the link between AFFF and liver cancer or thyroid cancer.

In complex product liability litigation, it is common for courts to schedule such scientific presentations early in the case, to educate the court about issues and concepts that will come up during the proceedings. The presentations are designed to be educational, not adversarial, and typically are not part of the official record or subject to cross examination.

While the outcome of early bellwether trials in the MDL will not have any binding impact on other claims, the average lawsuit payouts awarded by juries for different categories of injures may impact the amount of money the chemical manufacturers need to pay in AFFF settlements to avoid thousands of individual cases being remanded for separate trial dates in the future.