Aqueous Film-Forming Foam (AFFF) and PFAS Litigation Update, Part 2

Back in June I wrote a blog post about a possible $1.185 billion settlement between several defendants in the Aqueous Film-Forming Foams (AFFF) Products Liability Litigation MDL No. 2873 (AFFF MDL). This is a large amount of money, but given how many people and municipalities may have been harmed, this is almost a drop in the bucket when it comes to how much more money could be at stake here. In fact, just a few weeks later, there was news of another viable settlement in the AFFF MDL.

The 3M Settlement

According to its June 22, 2023 press release, 3M announced a potential settlement with public water suppliers, many of which are plaintiffs in the AFFF MDL. The settlement amount will be at least $10.3 billion. This money would be used to help public water suppliers remove perfluoroalkyl and polyfluoroalkyl substances (PFAS) from municipal water supplies as well as fund continued water testing.

Under the settlement’s terms, the money would be paid out over 13 years and could amount to more than $12 billion if additional public water systems detect PFAS in their water.

Over the course of less than two months, the PFAS litigation has resulted in more than $11 billion in tentative settlements. Yet this is probably just the start of what’s to come.

The Potential Breadth of PFAS Litigation

PFAS are sometimes called “forever chemicals” because it’s difficult for PFAS to break down in the human body and in nature. PFAS easily dissolves in water, so PFAS spreads around the world through rain, rivers, and ocean currents. Some studies have found possible links between PFAS and cancer.

Then there’s the fact that PFAS was widely used in the consumer and commercial contexts. For example, it was used to make non-stick cookware, stain-resistant carpets, cardboard food packaging, cosmetics, and firefighting foams.

As a result, PFAS can be found almost everywhere. The Environmental Working Group reports that more than 200 million people in the United States could have PFAS in their drinking water. As if that’s not bad enough, a study found that 97% of Americans tested had PFAS in their blood.

So we have two major AFFF/PFAS settlements amounting to more than $11 billion. But those settlements largely concern public water suppliers, not individuals. Therefore, it doesn’t take much of an imagination to see how much more money and litigation are probably still forthcoming. It wouldn’t be surprising if PFAS litigation verdicts and settlements rival those from the asbestos and tobacco civil suits.

Individual PFAS Lawsuits

There are a lot of PFAS lawsuits involving individual plaintiffs, but many of them haven’t been resolved. The AFFF MDL also has a lot of cases featuring individuals as plaintiffs.

In May 2023, the judge in the AFFF MDL issued Case Management Order Number 26, which began the process of litigating many of the cases involving personal injuries. This process consists of two steps.

In step one, the court and parties will identify a group of cases involving personal injury plaintiffs where additional discovery will take place.

Step two requires the court and parties to examine the list of cases from step one, then further narrow down this list to find cases that will undergo even more discovery and prepare for bellwether trials. According to the case management order, the parties have until July 28, 2023 to identify cases for step one.

While this timeline can easily change over the next few months, it reveals that resolving PFAS lawsuits involving individual plaintiffs in the AFFF MDL will take a bit more time.

It should be noted that not all PFAS cases involving personal injuries are part of the AFFF MDL. For instance, a 2020 case in Ohio federal court resulted in a $40 million verdict for the plaintiff who alleged PFAS caused his cancer. The verdict was upheld on appeal, although now the defendant is appealing the case to the U.S. Supreme Court.

This Ohio case was one of more than 3,500 cases that were a part of the In Re: E. I. du Pont de Nemours and Company C-8 Personal Injury Litigation MDL No. 2433. (C-8 MDL). These lawsuits stemmed from the alleged discharge of a chemical called C-8 by DuPont in West Virginia. C-8 is also known as perfluorooctoanoic acid (PFOA), which is part of the same family of chemicals as PFAS.

Many of the cases in the C-8 MDL settled, likely with favorable terms for the plaintiffs. This is because the settlements came after two bellwether trials and one post-bellwether trial all went against DuPont. However, not all C-8 MDL cases were part of that settlement.

The C-8 MDL results don’t necessarily predict what will happen in the AFFF MDL or any other PFAS-related lawsuits. But it shows what’s possible. It also hints at how many more PFAS-related lawsuits are likely for the foreseeable future.

If you have any questions about the AFFF MDL or PFAS exposure in general, please give me a call at 919.334.6277. I’ll do my best to answer your questions.

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