A panel of judges has determined that most fire-fighting foam lawsuits filed throughout the federal court system will be consolidated before one judge for coordinated pretrial proceedings.
3M Company, Tyco Fire Products and Chemguard, Inc. face dozens of product liability lawsuits filed by both individuals and municipalities nationwide, each involving similar allegations that the companies knew or should have known about the risks associated with exposure to perfluorinated compounds (PFAS) within its aqueous film-forming foam (AFFF), which has been used by the military over the last several decades during routine fire extinguishing exercises at military bases nationwide.
Defendants filed a motion in September seeking to consolidate cases filed in U.S. District Courts nationwide before one federal judge for coordinated discovery and pretrial proceedings. The manufacturers proposed transferring cases to the U.S. District Court for the District of Massachusetts, or, alternatively, to the Southern District of New York, and a group of plaintiffs supported the centralization of the cases to avoid duplicative discovery into common issues, avoid conflicting pretrial schedules and serve the convenience of common witnesses and parties.
Following recent oral arguments presented to the U.S. Judicial Panel on Multidistrict Litigation (JPML), a transfer order (PDF) was issued last week, calling for 75 claims pending in 8 different courts to be centralized in the U.S. District Court for the District of South Carolina under Judge Richard M. Gergel.
However, the JPML refused to add nine cases filed against 3M in the newly formed multidistrict litigation (MDL), referred to as non-AFFF actions, indicating that they differed significantly from the fire-fighting foam lawsuit because they involved allegations that the chemicals perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) were discharged directly into water sources and into the air by factories.
“While a non-AFFF MDL would allow for common discovery and motion practice with respect to 3M – the main producer of PFOA and PFOS – it would also include far more site-specific issues, different modes of PFAS contamination, and different PFAS chemicals (where as the AFFF actions are limited to PFOA and PFOS contamination),” the panel determined. “Such an MDL could quickly become unwieldy. As there are relatively few non-AFFF actions, which are being managed effectively in their current districts, expansion of this MDL to include non-AFFF actions is not warranted.”
Attorneys indicate that hundreds, if not thousands, of additional individuals who are similarly situated may join the firefighting foam class actions or file individual lawsuits over health risks allegedly caused by tainted water supplies.
At least two sites have already been found to be contaminated, including Naval Auxiliary Landing Field Fentress in Chesapeake, Virginia, and Naval Weapons Station Earle in Colts Neck, New Jersey.
PFASs were found in the drinking water at Fentress, but only in the groundwater, and not drinking water, at Earle station. However, the firefighter foam was recorded to have been used at least 664 sites where fire training and crash training exercises were conducted nationwide, potentially contaminating the ground water and drinking water supplies in hundreds of military bases and local surrounding communities.
Exposure to the chemicals has been linked to a risk of tumors, neonatal death, liver toxicity, immune system problems, disruption of the human endocrine system, as well as a potential risk of prostate, kidney and testicular cancers.
Recent research by the Environmental Protection Agency (EPA) suggests human exposure to PFCs may lead to a number of adverse effects, including reproductive, developmental and systemic adverse effects, low birth weight, accelerated puberty, and immune and thyroid disorders.
According to findings published in the Journal of the American Medical Association in 2012, exposure may also suppress the immune system and limit the ability of the body to create antibodies in response to childhood vaccines.