A while back I published a blog post discussing the potential health problems associated with aqueous film-forming foam (AFFF). Specifically, I discussed how it contained several chemicals (PFAS) that could potentially harm humans.
At the time of that blog post, some major litigation concerning AFFF had just begun. But a few years have now passed and we might have a potential settlement involving many of the litigants. Before I get to the settlement, let me provide some background information to better put things in perspective.
How Is AFFF Potentially Harmful?
AFFF contains a variety of chemicals, but two of the most relevant here are perfluorooctane sulfonate (PFOS) and perfluorooctane acid (PFOA). These chemicals are also used in other consumer products, like nonstick surfaces and stain-repellant coatings. They also belong to a family of chemicals called perfluoroalkyl and polyfluoroalkyl substances (PFAS).
When PFAS enters the human body, whether it’s ingested, inhaled or absorbed through the skin, it starts to accumulate. It doesn’t get metabolized or processed by the human body and it doesn’t get filtered out either. Over time, the amount of PFAS can build up in the human body and potentially cause health issues. Some of these problems may include:
- Prostate cancer
- High cholesterol
- Ulcerative colitis
- Testicular cancer
- Kidney cancer
- Bladder cancer
- Liver damage
- Immune system damage
- Pregnancy-induced hypertension
- Thyroid disease
- Ovarian cancer
The relationship between PFAS and cancer isn’t definitive, but studies suggest a possible link. Given the potential health risks from PFAS, many companies no longer use or make these chemicals.
Individuals may have been harmed by the AFFF through exposure during their jobs or from PFAS from the AFFF finding its way into their drinking water.
Pending PFAS Litigation
The primary focus of much of the litigation concerning AFFF, PFOA, PFOS and PFAS lies with the Aqueous Film-Forming Foams Products Liability Litigation MDL No. 2873 (AFFF MDL). This MDL (multi-district litigation) is before Judge Richard Gergel in the U.S. District Court for the District of South Carolina and he’s overseeing more than 4,000 lawsuits.
The plaintiffs include individuals and state and local government entities while the defendants include chemical companies like 3M, Tyco Fire Products, DuPont De Nemours (DuPont), Corteva and the Chemours Company (Chemours). Also included as a defendant is the U.S. government.
After litigation began, one of the major defenses that the chemical company defendants relied on was the government contractor defense. This was because much of the AFFF was used by firefighters working on military bases or on behalf of the federal government.
The government contractor defense basically says that a company doing business with the government can avoid legal liability in certain situations because they can sometimes share in the government’s legal immunity from lawsuits. However, Judge Gergel denied the motion for summary judgment that the defendants filed in August 2022 which relied heavily on this defense. This didn’t mean the defense wouldn’t work, but the defendants would have to wait until trial to present this defense.
On June 2, 2023, three defendants in the AFFF MDL announced a tentative settlement agreement amongst themselves. The defendants subject to this agreement included Chemours, DuPont and Corteva. The settlement would only apply to certain plaintiffs, largely municipal public water systems.
The three defendants will contribute $1.185 billion to a settlement fund. DuPont would provide about $400 million, Corteva approximately $193 million and Chemours contributing the bulk of the settlement money of roughly $592 million.
These three defendants hope to finalize the settlement agreement over the next month or so, although there are two potential hurdles before the settlement becomes official.
First, Judge Gergel has to approve the settlement. Second, assuming the judge approves the settlement, enough plaintiffs must consent to the settlement and opt into it. If too many plaintiffs decline the settlement, then Chemours, DuPont and Corteva reserve the right to cancel the settlement and proceed to trial.
Another thing to keep in mind is that even if this settlement gets approved and enough plaintiffs accept it, there will still be many plaintiffs and defendants in the AFFF MDL that still have pending cases that could go to trial or get settled at a later time. For example, 3M, another prominent defendant in the AFFF MDL is rumored to have agreed to a settlement of at least $10 billion.
If you’d like to learn more about this litigation or think you might have been affected by AFFF, don’t hesitate to contact me (direct line) at 919.334.6277. And if you’re curious about whether AFFF has potentially contaminated your drinking water, you can check out the Environmental Working Group’s PFAS Contamination in the U.S. map.