Parties Will Select 28 AFFF Lawsuits For Personal Injury Bellwether Discovery Pool in Federal MDL

Parties involved in the federal litigation over toxic chemicals in aqueous film-forming foam (AFFF) will turn in a list of personal injury claims that qualify to serve as initial bellwether test cases early next week, from which the U.S District Judge presiding over the federal MDL will select 28 cases that will go through case-specific discovery in preparation for test trials.

Each of the AFFF lawsuits will involve claims for personal injuries sustained as a result of exposure to per- and polyfluoroalkyl substances (PFAS) and other chemicals in the firefighting foam that contaminated drinking water, particular around certain military bases where the chemical fire suppressants were regularly released into the environment.

Aqueous film-forming foam has been used for decades by the U.S. military and local fire departments to combat fuel based fires. However, 3M Company, Tyco Fire Products, Chemguard, Inc. and other manufacturers involved in the sale of firefighting foam now face lawsuits alleging that they failed to disclose serious health risks associated with PFAS chemicals contained in AFFF, as well as the risk of widespread water contamination.

Given common questions of fact and law presented in the claims, all AFFF lawsuits are currently centralized before U.S. District Judge Richard M. Gergel in the District of South Carolina, for coordinated discovery, pretrial proceedings and a series of early bellwether trials.

Many of the claims pending nationwide involve firefighter cancer lawsuits, brought by individuals who developed testicular cancer, kidney cancer, pancreatic cancer, prostate cancer and other forms of cancer from exposure during their firefighting careers. However, the MDL judge has prioritized preparing a series of AFFF water contamination lawsuits for the first trial dates, to help gauge how juries will respond to certain evidence and testimony that will be repeated throughout the litigation.

AFFF Injury Lawsuit Bellwether Selections

In May, Judge Gergel issued a case management order that directed the parties to prepare a list of 28 AFFF personal injury claims to serve as a bellwether pool. These cases will focus on plaintiffs who say they were exposed to AFFF through drinking water contamination, as opposed to direct exposure.

The cases will include eight kidney cancer claims, eight testicular cancer claims, eight thyroid disease claims and four ulcerative colitis claims. In addition, they will be limited to individuals alleging they were exposed to contaminated water near Peterson Air Force Base, Colorado Springs Municipal Airport, the Willow Grove Naval Air Station Joint Reserve Base and the Naval Air Warfare Center in Warminster.

According to an amended case management order (PDF) issued on December 4, the parties are expected to turn over that list of potential cases by next Monday. The order also calls for the parties to submit either a joint Tier 1 Discovery Case Management Order, or proposed orders if they cannot reach agreement on the same day.

While the outcome of these early bellwether trials will not have any binding impact on other claims, it is expected that the amount of any AFFF lawsuit payout awarded by juries may influence future firefighter cancer settlement negotiations to resolve the litigation.

In addition to individual lawsuits, the manufacturers also faced thousands of AFFF water contamination lawsuits by cities, states and municipalities nationwide.

In June 2023, 3M Company agreed to pay over $12.5 billion in an AFFF water contamination settlement, to resolve claims brought by local water suppliers. However, there have not been any reported settlements in AFFF  personal injury lawsuits, and none of those individual claims have yet gone before a jury.