The Spirit of Spring in the AFFF Litigation: What It Means for Plaintiffs 

Since 2017, a lawsuit that has steadily gained steam is the firefighting foam litigation. To offer a bit more context, this lawsuit is essentially about firefighting foam for Class B fires or Aqueous Film Forming Foam (AFFF). 

Firefighters have alleged that constant exposure to the said foam caused them to develop life-threatening conditions like cancer of the kidney, bladder, and testicles. The reason behind this is the chemicals used to manufacture AFFF – per- and polyfluoroalkyl substances (PFAS). 

All cases were consolidated into a class-action multi-district litigation (MDL) in 2018. It’s already been an arduous struggle of nearly five years, and it seems like the spirit of Spring has finally entered the litigation in 2024. 

What does that mean? Well, the season of Spring is symbolic of renewed hope and new beginnings. This article will discuss the optimistic turn the AFFF litigation has recently taken. 

Justice Served for One Case Category 

The personal injury lawsuits we previously discussed are simply one-half of the AFFF litigation. TorHoerman Law shares that municipalities have also filed water contamination lawsuits against defendants like DuPont and 3M. 

Even the Environmental Protection Agency (EPA) has at least 180 Superfund sites listed on its website that require PFAS cleanup and remediation efforts. These chemicals are not only a health hazard but do not degrade the environment or the human body. 

This is why they are considered to be the ‘forever chemicals.’ The greater half of 2023 was dedicated to resolving all cases of water contamination in the firefighting foam lawsuit. Bellwether trials were conducted, for which Florida’s City of Stuart case was chosen. 

The defendants made a few attempts to win the trial in their favor but ended up making a private agreement. 3M finally negotiated with the municipalities, agreeing to pay $10.3 billion for 13 years. This settlement amount will be used for PFAS detection and management across 11,000 public water systems. 

Since June 2023, lawyers have had a good idea of what the average payouts would be in case of water contamination lawsuits. This court settlement gave hope to firefighters and other military personnel who had filed a personal injury lawsuit. 

Unexpected Shifts in Litigation Focus 

The plaintiff’s counsel had shifted its focus toward personal injury cases, hoping that some concrete action would be taken in the second half of 2023. As the months progressed, two unexpected shifts marked the litigation. 

It was later found that 3M’s settlement amount would not tackle a different class of lawsuits. These included suits against AFFF made using Telomere fluoro-surfactants. The primary difference between Telomere-based AFFF and standard foam is the composition of fluorine. 

The former uses an estimated 30% to 60% less fluorine to prepare the AFFF agent. A good number of lawsuits involved Telomere-based AFFF, which the Judge decided to take up next. This meant that both sides would have to prepare for Bellwether trials. Firefighters were frustrated with this move because many were advanced in age or on the edge of succumbing to their injuries. 

In early 2024, the AFFF litigation took another unforeseen turn. Up until this point, the focus in the personal injury cases was primarily on the firefighting foam. Now, the Judge directed their attention to firefighting turnout gear. 

A study conducted by the National Institute of Standards and Technology (NIST) found that firefighters’ protective clothing often contained toxic traces of PFAS. This also increased the risk of cancer and other deadly conditions. 

A new court management order was created, laying down the procedures for the management of turnout gear-specific lawsuits. The plaintiff’s counsel is required to prepare a Plaintiff Fact Sheet (PFS) for all cases involving turnout gear injuries. 

Spring 2024 Brings Renewed Hope 

The Spring season of 2024 was not entirely a harbinger of hope. A new study was published in February regarding the connection between processed foods and PFAS. It was found that highly processed meats, butter, flour, and other foods further elevated PFAS levels in the body. 

Also, individuals who consumed more takeout or restaurant-packaged foods were likely to have higher levels of PFAS in their bodies. From the legal viewpoint, the plaintiff’s counsel experienced the spirit of Spring – renewed hope due to new beginnings. 

Since the second half of March, the court’s focus has shifted to personal injury cases. A schedule was made for both parties to share scientific studies associated with AFFF-induced diseases (other than those involved in the water contamination lawsuits). 

This will pave the way for a Science Day before the MDL Judge. On the scheduled Science Day, both sides will attempt to educate the Judge on the medical principles relevant to the litigation. It is mainly a non-hearing, non-trial event. Expert witnesses will be selected to discuss chemical composition, carcinogenic effects, and more. 

As we just saw, the court is trying to shoot two birds with a stone. On the one hand, trial preparations are underway for the second class of water contamination lawsuits. On the other hand, Science Day is to soon be held to increase the pace of personal injury cases. 

Can we expect settlements to happen within this year? Perhaps it is too early to say that with any certainty. As of now, plaintiffs must rejoice that the AFFF litigation has made tremendous progress compared to when it all started. 

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