Thousands of AFFF Exposure Lawsuits Expected To Be Voluntarily Dismissed, With Ability To Refile in Future

Court has outlined the process for dismissing AFFF exposure injuries not covered by the bellwether trials, allowing the claims to be brought again within the next four years

The U.S. District Judge presiding over all aqueous film-forming foam (AFFF) exposure lawsuits filed in federal courts nationwide has outlined a new process, which will allow plaintiffs pursuing claims for injuries that are not currently covered by the bellwether expert discovery to dismiss their lawsuits without prejudice, subject to a tolling agreement that gives them up to four years to refile the claims in the future.

AFFF has been used as firefighting foam 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 more than 8,000 lawsuits alleging that they failed to disclose serious health risks associated with toxic chemicals contained in AFFF, as well as the risk of widespread water contamination that may result from use of the foam during training and response exercises.

Plaintiffs say exposure to AFFF has led to various forms of cancer, such as testicular cancer, kidney cancer, liver cancer, thyroid cancer and other injuries, due to the toxic chemicals used in the firefighting foam’s production.

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, which will be used to help the parties gauge how juries may respond to certain evidence and testimony that will be repeated throughout the litigation.

Voluntary AFFF Exposure Lawsuit Dismissals

Last year, Judge Gergel established a bellwether process, where a group six of AFFF exposure lawsuits will be prepared for trial, going through case-specific discovery and pretrial motions. The initial bellwether pool will consist of claims by individuals diagnosed with:

• Testicular Cancer
• Kidney Cancer
• Ulcerative Colitis, and
• Thyroid Disease

In addition, the court has ordered the parties to prepare a plan for a second group of five bellwether trials to address other injuries that plaintiffs’ leadership believes can be causally related to exposure to AFFF. In March, plaintiffs lawyers identified a second group of AFFF exposure injuries that they believe can be worked up for trial, including:

• Liver Cancer, and
• Thyroid Cancer

However, these selections will leave thousands of claims involving other injuries out of the bellwether process, without the plaintiffs leadership providing sufficient expert support to allow the claims to go before a jury. Therefore, each of those plaintiffs may be required to establish that they can provide sufficient evidence establishing that exposure to AFFF causes their diagnosed injury in the coming months, facing the prospect that their claim may soon be dismissed with prejudice, preventing them from ever securing financial compensation.

As the science involving injuries caused by exposure to the firefighting foam continues to evolve, Judge Gergel issued an order earlier this month, indicating that AFFF exposure lawsuits can be dismissed voluntarily by August 22, and the manufacturers have agreed to toll the statute of limitations in such cases for up to four years. This will allow those plaintiffs to refile their complaint once they are prepared to provide the required expert reports to support their AFFF injury within 240 days of bring the claim again.

Over the past few weeks, the Court indicates that it has been alerted that “thousands” of plaintiffs are likely to seek dismissal without prejudice in the coming weeks. Therefore, to help administrate the mass dismissals of claims, Judge Gergel issued another case management order (PDF) on May 28, detailing steps that must be taken.

Plaintiffs’ attorneys will be permitted to file a single notice of voluntary dismissal listing up to 25 member cases, to entirely dismiss those complaints. However, to dismiss individual parties from complaints, a single filing can include up to 50 plaintiff parties from 25 different member cases. Similarly, if the dismissal only applies to certain claims in a complaint, attorneys can file one notice that dismisses claims for up to 50 plaintiffs from up to 25 member cases.

The order also includes instructions on how to effectuate the dismissal and provides templates for plaintiffs’ attorneys to use.

AFFF Exposure Lawsuit Bellwether Trials

As the scope of the MDL is being narrowed, the parties have been directed to exchange proposals for the two remaining bellwether pools by July 2. If they are unable to agree on a process for selecting representative AFFF exposure lawsuits involving the covered injuries by July 16, each side will explain to the court why they could not reach agreement and they think their list is representative of the majority of cases and why the opposing sides’ is not.

Bellwether trials for the first pool of cases are scheduled to begin by January 13, 2025. No start date has been selected for the second pool of cases.

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 contamination 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 settlement, to resolve claims brought by local water suppliers. However, there have not been any reported settlements in AFFF injury lawsuits.