AFFF Lawsuits Over Liver Cancer, Thyroid Cancer To Be Selected For Bellwether Process in Federal MDL

With thousands of AFFF lawsuits pending in the federal court system, each involving allegations that firefighters and other individuals developed various types of cancer and other other injuries after exposure to toxic chemicals in the firefighting foam, the court has established a process for the parties to prepare a new group of cases involving liver cancer and thyroid cancer for additional discovery and trial work up.

Aqueous film-forming foam (AFFF) 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 per- and polyfluoroalkyl substances (PFAS) contained in AFFF, as well as the risk of widespread water contamination.

Lawsuits are now being filed by former firefighters, as well as individuals who lived around military bases, airports and other locations where the chemical fire suppressants were regularly released into the environment, raising allegations that exposure to the chemicals in AFFF caused various cancers, including testicular cancer, kidney cancer, liver cancer, thyroid cancer and other injuries.

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.

AFFF Lawsuit Bellwether Trial Process

Last year, Judge Gergel established a bellwether process where a small group of AFFF water contamination lawsuits are going through case-specific discovery and pretrial motions in preparation for a series of early trial dates, which will be used to help gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the litigation.

That first AFFF lawsuit bellwether pool was limited to claim involving kidney cancer, testicular cancer, thyroid disease and ulcerative colitis injuries, and the parties selected a group of 28 AFFF injury lawsuits involving those injuries, which will later be narrowed down to a small list of cases that will be eligible for the first injury trials.

In December 2023, the Court ordered the parties to meet and confer on a plan to address other personal injury cases that did not involve those initial injuries, including a schedule for conducting pretrial discovery in those additional cases.

On March 13, Plaintiffs submitted a response (PDF), indicating that this second bellwether group should include claims involving allegations that exposure to AFFF caused liver cancer or thyroid cancer. In a case management order (PDF) issued the same day, the Court outlined the plans for preparing those claims for trial.

The order calls for plaintiffs to produce all relevant peer-reviewed articles or studies supporting an association between firefighter foam exposure and liver cancer and thyroid cancer injuries and present them to the defendants by April 3. Defendants will have until May 1 to present articles or studies disputing the alleged associations. Both parties will turn over their respective articles and studies to the Court by May 15.

AFFF Lawsuits “Science Day” Planned

In addition, the order calls for the parties to conduct a “Science Day” presentation to educate the court on the scientific data and theories on how AFFF exposure could or could not lead to these types of injuries.

Such proceedings typically involve non-adversarial presentations by expert witnesses or parties, which are intended to educate the court about issues and concepts which will come up during the proceedings. The presentations are not part of the official record in the case, or subject to cross examination. However, information presented may guide the Court in any future rulings or motions about evidence to be presented in the AFFF lawsuits, including decisions about which expert witness testimony may be presented to juries.

Though no date for the Science Day is specified in the order, Judge Gergel indicated the parties will have 60 days after the presentations to submit a joint order, or competing orders, on a bellwether process for this second batch of early test trials. This will include how they propose to handle Daubert motions challenging the admissibility of expert witness testimony, as well as any dispositive motions.

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 brought by firefighters diagnosed with cancer and injuries caused by drinking contaminated water, the manufacturers also faced thousands of AFFF water provider lawsuits brought by cities, states and municipalities nationwide, seeking damages for the costs associated with removing the toxic chemicals from local water supplies

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 injury lawsuits, and none of those individual claims have yet gone before a jury.