AFFF Lawsuit: Condensing an Arduous Struggle for Justice

By Swati Aug29,2023

The image of a firefighter is almost certainly accompanied by a white foam-like agent used for fire suppression. Aqueous Film Forming Foam (AFFF) is a type of firefighting foam used to extinguish fires caused by liquid fuel.

Discovered in the 1960s by the US Naval Research Laboratory, this foam was a vital part of the industry for decades. However, over the years following its discovery, scientists have raised concerns regarding its harmful effects.

AFFFs consist of a class of “forever chemicals” called per- and polyfluoroalkyl Substances (PFAS). This means they can indefinitely stay in the soil or human body without breaking down.

These chemical compounds have wreaked such havoc on the environment that there are currently 180 Superfund sites with PFAS contamination. Even lawsuits have been filed against AFFF manufacturers due to severe physical injuries like cancer.

In this article, we will discuss the ongoing battle for justice in a condensed manner.

 

First Wave of Lawsuits – First Bellwether Trial Victory

In 2017, the first wave of firefighting foam lawsuits was filed against manufacturers like 3M, DuPont, and so on. By 2018, enough cases were pending across Federal courts to consolidate them into a new class-action multi-district litigation (MDL).

However, the same took over a year as an MDL was created in December 2018 under Judge Richard Gergel. He was to preside over these cases in the US District Court of South Carolina.

According to TorHoerman Law, these firefighting lawsuits were divided into two broad categories –

  • Personal injury lawsuits filed by injured firefighters and military servicemen
  • Water contamination lawsuits filed by local communities with polluted public water supply systems

Case filing continued in subsequent years with no clear firefighter foam cash settlements in either of the categories. Finally, good news arrived in October 2022 that the City of Stuart vs. 3M Co. et al case was chosen for the first-ever Bellwether trial of the MDL.

Just a month before this, 3M’s government contract defense appeal was turned down. The defense would have provided 3M protection because it manufactured AFFF products under the government’s instructions. However, the Judge rejected it because the company withheld (from the government) info regarding the forever chemicals’ harmful risks.

By January 2023, another study revealed that firefighters were 60% more likely to die from cancer than the general population. These included cancers of the prostate, blood, and the kidneys. Over the next few months, wave after wave of lawsuits piled up in the US District Court of South Carolina.

Bells of victory finally chimed around June as the defendants agreed to make negotiations. The first Bellwether trial was put on hold due to a joint motion to delay. It was later announced that 3M had settled for $10.3 billion to close all water contamination lawsuits.

The amount would be paid to PFAS-polluted municipalities for testing and cleaning their water supply systems over 13 years. Having the Bellwether trial end on a positive note meant speedier settlements for all water contamination lawsuits. Additionally, plaintiff lawyers were hopeful that the second half of 2023 would be dedicated to settling personal injury lawsuits.

 

Personal Injury Lawsuit Verdict Still on Hold

By the end of July 2023, over 5,000 cases were pending in the class-action MDL. These included both water contamination and personal injury lawsuits.

Some plaintiff lawyers had to face the demise of their clients who succumbed to their injuries. An instance that came to light was that of an Alabama plaintiff who died on August 1st 2023. Following the tragic event, Judge Gergel granted the unopposed motion to let the plaintiff’s daughter continue the legal battle.

The only difference was that the personal injury case had turned into a wrongful death lawsuit. Other plaintiffs also showed concerns that they may never get to witness justice. An example would be the case of Jones vs. 3M et al filed in mid-August.

The case’s plaintiff is a 73-year-old man who developed prostate cancer due to AFFF exposure as a firefighter with the Air Force. The man had also undergone a prostatectomy to get rid of the cancer. Another 1000 cases have been filed so far (August 2023).

 

Is 2023 the Year?

Speculations exist about whether 2023 will be the golden year when the preceding six long years of struggle will pay off. Plaintiff lawyers anticipate a positive progression of the MDL as they continue to accept new cases against AFFF manufacturers.

Another nested study found that PFAS increased the risk of developing testicular cancer among military members of the Air Force. The latest update is that Judge Gergel has asked lawyers on both sides to present the events relevant to the litigation.

It does look like the MDL is advancing steadily on the right track. With four months still left, a positive outcome may be on the horizon for personal injury plaintiffs and lawyers.

 

 

 

 

 

 

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