Thousands of personal injury lawsuits are filed annually under different categories, including medical malpractice, product liability, dog bites, slip and fall accidents, etc. The firefighting foam lawsuit is one product liability suit that attorneys have been monitoring closely for nearly seven years.
It has been filed against manufacturers of per- and polyfluoroalkyl substances (PFAS), the main ingredient used to manufacture Class B firefighting foam or Aqueous Film film-forming foam (AFFF). It was later found that many chemicals from this group of over 12,000 are carcinogenic in nature.
Moreover, they also pollute the environment and do not easily break down. As a result, a product liability suit was filed against 3M, DuPont, and others. Today, the litigation has come a long way and there is an urgent need for a trial date. Is it just because of the timeline? The article will discuss the important contents in detail.
One Half of the Litigation Settled
We just briefly touched upon the AFFF litigation and what it is all about. After the first cases were filed in 2017, the numbers were high enough to form a class-action multi-district litigation (MDL) in 2018.
Since then, the lawsuit has been filed under two separate categories. According to TorHoerman Law, one-half was dedicated to settling personal injury cases filed by firemen and other military personnel. The second half focused on water contamination lawsuits filed by municipalities.
In June 2023, the first-ever Bellwether trial was held, involving the City of Stuart water pollution lawsuit. It was followed by a positive conclusion for the plaintiffs as 3M privately agreed to pay $10.3 billion for PFAS detection and remediation. However, this sum is to be paid over 13 years.
With this settlement, the plaintiff’s counsel knew individual payouts for all water contamination cases. Hence, the AFFF lawsuit update toward the last quarter of 2023 was that one-half was resolved. Plaintiffs of personal injury cases were awaiting trials with bated breath.
Focus Finally Shifts Towards Personal Injury Cases
As the litigation further progressed, personal injury plaintiffs were met with some disappointments and roadblocks. It was unforeseen for the court to direct its attention toward another class of water contamination lawsuits.
These had been missed out previously because they were different from regular PFAS-based AFFF lawsuits. In other words, some municipalities had filed water contamination suits for Telomere-based AFFF. This is different from regular AFFF in the sense that it has 30% to 60% less PFAS content.
Naturally, the judge had to deal with these cases through a separate trial. Plaintiffs were notified of an unexpected delay since Telomere-based lawsuits would go to trial first. Disappointment had crept in but the judge renewed all hope towards the end of 2023. Special attention was given to turnout gear-specific lawsuits.
Certain firefighters had alleged that their injuries (cancer of the bladder, testicles, and kidneys) were due to PFAS in turnout gear. Studies have found traces of PFAS in these professionals’ personal protective equipment (PPE). This meant that personal injury cases would also be taken up soon.
Debate over Diseases That Belong to the AFFF Lawsuit
With the 2024 winter giving way into Spring, the spirit of novelty and renewed hope has entered the AFFF litigation as well. It appears that the court’s focus has finally turned from the water contamination cases to personal injury suits.
The two cancers with the strongest causal connection in the litigation include kidney and testicular cancers. It is expected that these two injury-related cases will receive the highest payouts. In March 2024, a new case management order was released for an upcoming Science Day.
This non-hearing, non-trial event will involve an educational briefing of the judge using evidence and expert witnesses presented by both sides. As of April this year, the debate regarding which diseases (in total) belong to the AFFF litigation has intensified.
Since the science behind the link between AFFF and its injuries is still evolving, it is free for the situation. In due time, the same must be narrowed down so that each case is dealt with fairly. Otherwise, it is possible that certain viable claims may not make it into the MDL.
To that end, a joint motion was filed, which seeks to –
- Identify all diseases that could be linked to AFFF exposure, especially those not covered under the previous case management order
- Organize a Science Day to ensure a detailed educational briefing of the judge
- Prepare outlines or plans for Daubert’s hearing and dispositive motions for the known diseases
- Discuss the selection process for Bellwether cases for known diseases. In case this fails, competing proposals must be submitted within 60 days of Science Day. This part is crucial since it can help secure trial dates and put pressure on the defendants for fair settlements.
- Impose particular mandates on plaintiffs alleging claims that are not listed in the previous case management orders.
As for the turnout gear lawsuits, even the International Association of Fire Fighters (IAFF) has been sued. It was claimed that the regulatory body’s standards required firefighting gear to have carcinogenic chemicals. We see that the AFFF litigation has certainly made an interesting shift.
What’s bothering plaintiff lawyers is the new joint motion since defendants will do everything in their power to prevent unidentified disease cases from going to trial. This is why a trial date is urgently needed.
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