It would not be incorrect to state that the postmodern world is a product of manmade synthesis. With each breakthrough innovation in the market, man’s fixation on interfering with natural laws is evident.
A similar case took place in the early 1930s when the chemistry of per and polyfluoroalkyl substances (PFAS) was discovered. A complex group of over 12,000 synthetic chemicals, PFAS became commonplace in the US by the late 1960s.
They were used in the production of non-stick cookware, stain-resistant fabrics, certain cosmetics, and even Class-B firefighting foams (Aqueous Film Forming Foam or AFFF). Decades later, these chemicals earned a reputation for being hazardous to the environment and humans.
The situation has reached a point where active litigation exists against PFAS manufacturers like 3M and DuPont. In this article, we will look at the legislative progress and what 2024 holds in terms of settlements.
Premise for the Litigation
The individuals most severely exposed to PFAS were firefighters who frequently dealt with AFFF. This foam had been a part of their occupational rescue repertoire for decades, preferred for its low viscosity and water/oil-repellent capabilities.
Sadly, hundreds of them developed life-threatening conditions, mainly cancers of the kidneys, testicles, and bladder. The AFFF foam cancer situation became unavoidable by 2017 when the first wave of lawsuits was filed. By 2018, the litigation had enough cases to form a class-action multi-district litigation (MDL).
The International Agency for Research on Cancer (IARC) deemed one widely-studied chemical from the group – perfluorooctanoic acid (PFOA) – to be possibly carcinogenic. Even in 2023, a study found that there was a direct link between AFFFs and testicular cancer.
The plaintiffs have not only sued PFAS manufacturers for personal injuries, but even municipalities have filed water contamination cases. According to TorHoerman Law, it is alleged that 3M was aware of the human health and environmental repercussions as early as the mid-1960s.
The Plaintiff Counsel’s Partial Victory
By May 2023, both parties were gearing up for the first-ever Bellwether trial for this litigation. The chosen case was the City of Stuart vs. 3M Co. et al – a water contamination lawsuit filed by Florida’s city of Stuart.
The defendants made several attempts to win the trial in their favor, including the exclusion of the Environmental Protection Agency’s (EPA’s) proposed PFAS limits. Around June 2023, there was even a joint motion to delay the litigation.
However, amidst a growing number of cases, the parties finally decided to come to a private settlement. Later, it was revealed that 3M agreed to pay $10.3 billion over 13 years for PFAS detection, remediation, and management. This settlement set the stage for plaintiff attorneys to estimate individual water contamination case payouts.
Currently, there are cases filed against manufacturers of a Telomer-based AFFF as well. It is a different kind of firefighting foam that contains lower levels of PFAS. A global settlement for these cases is awaiting Bellwether trials in August 2024.
Even so, it may be said that the plaintiff’s counsel has secured at least partial victory in this litigation.
Progress So Far in Personal Injury Cases
Despite the partial victory, plaintiffs are concerned about the personal injury lawsuits. This year itself, many have succumbed to their severe injuries. In such cases, the court has granted surviving family members the right to file a wrongful death lawsuit.
By October 2023, over 6000 cases were still pending (some belonging to the water contamination category). Bellwether trials for personal injury lawsuits are expected to take place in 2024. In November this year, plaintiffs were required to choose cases for the discovery pool.
A major hurdle to settlements is the water contamination lawsuit sub-group regarding the Telomer-based AFFF cases. Frustratingly enough, the weeks preceding November 2023 were dedicated to tackling cases for Telomer litigation’s Bellwether trials.
In the meantime, three ‘suggestion of death’ notices were filed in the AFFF litigation. A suggestion of death notice indicates that the respective plaintiff has passed away while awaiting justice. By the time the court holds trials for personal injury cases, it is possible that many more would yield themselves to a similar fate.
On a final note, the focus on Telomer-based AFFF lawsuits will likely push back justice for firefighters and military servicemen. It is believed that settlements may not be on the horizon until late 2025 or even early 2026.
The Case Management Order has been issued, thereby forging a path for an overall settlement. The court is currently reviewing four conditions associated with firefighting foam – hypothyroidism, ulcerative colitis, cancers of the kidneys and testicles, and thyroid disease.
The Judge is looking into the litigation inventory to ascertain its scope. It is concerning that most lawsuits are associated with conditions not currently under the court’s review. This means it may be a while before the court is done assessing the legitimacy of all cases.
