The US District Court for the District of South Carolina has been handling a major class-action multi-district litigation (MDL) involving firefighting foam. This foam renowned in the firefighting industry for putting out liquid-fuel fires is known as Aqueous Film Forming Foam (AFFF).
This foam has been in use since the 1970s, with its main ingredient being per- and polyfluoroalkyl substances or PFAS. Over the years, firefighters started developing life-threatening health conditions like cancer.
This is what led to the filing of the AFFF or firefighting foam litigation. The legal war against PFAS manufacturers continues to rage. In this article, we will discuss the possible timeline to understand when justice will finally be served.
An Ongoing Battle for Years
The first group of firefighting foam lawsuits was filed back in 2017. A year later, all the cases were consolidated into a class-action multi-district litigation or MDL. According to TorHoerman Law, firemen, and military personnel alleged that the foam’s PFAS were responsible for their testicle, bladder, and kidney cancers.
Even if we make a general assessment, the Environmental Protection Agency (EPA) lists a number of health concerns associated with PFAS. These include reduced immune response, developmental delays, hormonal imbalances, and increased cholesterol levels.
Firefighters are exposed to the foam directly for greater frequency. A study even found that their personal protective equipment (PPE) also comes lined with PFAS due to water and oil resistance. What’s alarming is that the chemicals are released in greater volumes when the firefighting gear undergoes wear and tear.
The AFFF lawsuit was filed under two categories, one by municipalities for water contamination and the other by firefighters for personal injuries. In 2023, the former category of cases was offered a global settlement of $10.3 billion. This amount is to be paid out over a period of 13 years. The personal injury cases are still awaiting jury verdicts.
Crushing Discoveries Become Useful Tools
Before the first group of firefighting foam lawsuits was filed, it was known that PFAS, precisely perfluorooctanoic acid (PFOA) is a human carcinogen. By the time the litigation started, the cards had already been dealt in the plaintiffs’ favor.
As the years have passed, the plaintiff’s counsel side has only become stronger. This can be attributed to the various studies conducted for a better understanding of how PFAS affects humans and the environment.
Perhaps the most compelling discovery that was made was concerning the degradation (or lack of) of these chemicals. PFAS received the name ‘forever chemicals’ because they can stay in the human body or the soil almost indefinitely. The carbon-fluorine bond that these chemicals shared could not be broken down easily.
Then, more appalling revelations were in store as studies found PFAS to be ubiquitous in nature. Traces were discovered in drinking water, worldwide rainwater samples, and even in packaged foods. The latest study also showed how PFAS interacted with the human skin.
17 different PFAS were analyzed by applying each directly to the skin. It was found that the shorter-chain chemicals had higher absorption rates when compared to the longer chains. The latter were even retained in the tissues, which meant that they could be released into other parts of the body with time. If there were an example to describe being hard-pressed on all sides, this would be it.
Voluntary Dismissals and Burdens on the Court
One thing is certain at this point – the aforementioned studies have only increasingly favored the plaintiff’s side. There is no shadow of doubt that PFAS may turn into (or already have become) a public health crisis. Their direct exposure to firefighters would only have spelled disaster.
Amid an ongoing litigation, countries worldwide have agreed to ban PFAS production completely. The primary defendant in this lawsuit, 3M, has given its word to cease PFAS manufacturing by the end of 2025.
While this is good news, the court has also been witnessing an uptick in voluntary dismissals. This refers to the termination of a lawsuit upon the plaintiff’s request. Could it be because some plaintiffs found their case to be weak? Were they tired of waiting for years to receive justice?
It is generally believed that when a notice of voluntary dismissal is made, it is because the case was privily settled. If this is true, it is difficult to know for sure the exact settlement amount. Along with this, a new strategy has also been implemented to reduce the case burden on the court.
Plaintiff attorneys have made a solid proposal regarding testicular and kidney cancer cases as well as ulcerative colitis and thyroid disease cases. They have suggested choosing the former from among cases from the state of Pennsylvania. As for the latter, the cases belonging to the state of Colorado have been recommended.
The plaintiff’s counsel believes that such a strategy would shift the focus on specific parties and sites. As a result, the number of required expert reports, evidence, and depositions will be reduced.
Bellwether Cases and Increasing Anticipation
The strategy to reduce the court burden would even expedite the timeline of the litigation. Even now, preparations for Bellwether trials are in full force. Out of 11 proposed cases, Judge Gergel has selected 9 to be taken up first for the trials.
Among these cases are those of kidney and testicular cancer chosen from the state of Pennsylvania. Similarly, cases of thyroid disease and ulcerative colitis have been selected from the state of Colorado. This came as a big win for the plaintiff’s side because the Judge followed the path proposed earlier.
All of this took place in late July 2024. By this time, the case count had not increased much compared to the previous month. In fact, the numbers decreased from 9,525 cases to 9,198 owing to settlements regarding water contamination cases and voluntary dismissals. As a result, anticipation on both sides is continuously building.
From what we’ve discussed, how much more do plaintiffs of personal injury lawsuits need to wait before settlements are made? It appears that at the current rate, a global settlement could be made by the end of 2024 or at least the beginning of 2025.
If this happens, plaintiffs will finally be able to breathe a sigh of relief. Lawyers will have a better idea of individual payouts based on factors like exposure duration, severity of injuries, plaintiff’s age, and more.
