Thousands of Unfiled AFFF Lawsuits May Disrupt MDL Schedule, Ongoing Settlement Talks

Lawyers have been ordered to meet with the MDL judge today, to discuss the impact of these unfiled claims on upcoming bellwether trials and the next round of AFFF lawsuit settlement negotiations.

The U.S. District Judge presiding over more than 11,000 aqueous film-forming foam (AFFF) lawsuits currently pending in the federal court system has expressed serious concerns about the potential impact that thousands of unfiled claims could have on ongoing settlement negotiations, and plans to present a series of test cases to juries in the coming months.

The litigation is already one of the largest pending mass torts in the U.S., with claims brought against numerous chemical and safety equipment companies nationwide, each raising similar allegations that the companies should be held responsible for various different types of cancer and other diseases caused by chemicals in the firefighting foam. However, lawyers recently suggested that the current size of the litigation may be dwarfed by “tens of thousands” of viable claims that have not yet been filed in court.

The litigation stems from toxic chemicals in firefighting foam products, which have been widely used by U.S. military and civilian firefighters since the 1960s to fight petroleum 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 from local water supplies, PFAS exposure has been linked to a range of serious health conditions, including testicular cancer, kidney cancer, liver cancer, thyroid cancer, thyroid disease and ulcerative colitis.

The AFFF lawsuits include claims from both military and civilian firefighters who suffered direct chemical exposure during training exercises and emergency response, as well as water contamination lawsuits brought by individuals exposed to the chemicals after they leached into local water supplies.

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

While the first AFFF lawsuit bellwether trials are scheduled to begin on October 20, 2025, focusing on a small group of individuals who developed kidney cancer, testicular cancer, thyroid disease or ulcerative colitis, the parties are engaged in ongoing settlement negotiations to discuss a global resolution for the litigation.

Dispute Emerges Ahead of Key AFFF Settlement Talks

On July 15, the Defense Coordinating Committee (DCC) sent a letter (PDF) to Judge Gergel, asking the Court for guidance on new information from plaintiffs that indicates there could be tens of thousands of unfiled AFFF lawsuits, which they say could significantly complicate ongoing settlement talks, the next of which is scheduled for this Friday.

Defendants raise concerns about the potential effects on case management, schedules and the bellwether trial process. The DCC has requested a phone conference before Friday to discuss the issue.

In a response letter (PDF) sent the same day, plaintiffs criticized the defense for using data from a “protected communication,” suggesting that the chemical and fire safety manufacturers are attempting to improperly manipulate the mediation process.

Judge Gergel responded in a court order (PDF) the same day, siding with defendants’ concerns about the potential impact of so many cases waiting in the wings, and agreeing with the need for a telephone conference before the next mediation session, which will be held sometime today.

“The issue of unfiled personal injury claims has been previously discussed by the parties with the Court, and it was entirely appropriate and necessary for the DCC to bring this matter to the Court’s attention. The sudden aggregating of a large number of unfiled personal injury claims has the potential of disrupting the orderly operation of the MDL and undermining ongoing settlement discussions among the parties.”

-Judge Richard M. Gergel, Order, July 15, 2025

The order called for plaintiffs to provide information on the number of unfiled personal injury cases, as of May 13, 2025, and as of July 15. It also calls for the Plaintiffs Executive Committee to identify all firms that have more than 100 unfiled personal injury AFFF lawsuits.

If no settlement is reached before October, the first in a series of bellwether trials is expected to proceed, with lawyers also preparing a separate group of claims involving liver cancer and thyroid cancer for a second wave of bellwether trials, expected to begin next year.

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 PFAS injury lawsuit payouts awarded by juries may influence future settlement negotiations to resolve the litigation.