AFFF Personal Injury Lawsuits Involving Kidney Cancer, Testicular Cancer, Ulcerative Colitis and Thyroid Disease To Be Prepared For Trial in 2025

The U.S. District Judge presiding over all pretrial proceedings for AFFF (aqueous film-forming foam) lawsuits has ordered the parties to begin discussions on which cases are best suited for early trial dates, including claims for kidney cancer, testicular cancer, ulcerative colitis and thyroid disease, which should be ready to go before juries by late 2025.

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 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.

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 exposure to AFFF caused various cancers, including AFFF testicular cancer, kidney cancer, liver cancer, thyroid cancer, ulcerative colitis 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, 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.

AFFF Injury Lawsuits Eligible For Bellwether Trials

Last year, Judge Gergel established a bellwether process where a small group of AFFF personal injury lawsuits will be prepared for trial, going through case-specific discovery and pretrial motions. The initial bellwether pool was limited to individuals diagnosed with the following injuries:

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

Since those injuries only covered some of the AFFF lawsuits filed by firefighters or others impacted by water contamination, the Court ordered the parties to develop a plan to address other claims earlier this year. In March 2024, the parties indicated that they will select a second group of AFFF bellwether lawsuits, involving individuals diagnosed with:

• Liver Cancer
• Thyroid Cancer

At this time, plaintiffs involved in the litigation have indicated they do not intend to present expert evidence supporting the link between AFFF and other injuries. Therefore, Judge Gergle issued a case management order (PDF) on May 15, indicating that lawsuits involving any other cancers or injuries can be dismissed subject to a tolling agreement, which allows plaintiffs to refile their case within four years, if additional studies on the side effects of AFFF exposure develop. Otherwise, those claims will be subject to strict docket control measures, requiring plaintiffs to provide expert reports supporting their AFFF injury within 240 days of bringing the claim.

AFFF Lawsuit Discovery Schedule

For the first group of AFFF bellwether lawsuits, Judge Gergel issued a scheduling order (PDF) on May 7, which outlines the process for selecting cases that will go through complete discovery and be prepared for trial involving kidney cancer, testicular cancer, ulcerative colitis or thyroid disease.

An initial pool of 25 cases selected will be narrowed down and divided into two groups, which will proceed in a staggered schedule of discovery proceedings, motion practice, trial preparation and trial.

• Group A will involve six lawsuits, with three involving AFFF kidney cancer injury lawsuits and three involving AFFF testicular cancer lawsuits;
• Group B will consist of five lawsuits, including two AFFF ulcerative colitis lawsuits and three AFFF thyroid disease lawsuits.

Judge Gergel has ordered the parties to exchange proposals for the Group A and Group B bellwether pools by July 2. If they are unable to agree on the selections 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.

Fact discovery proceedings for Group A cases are expected to be completed by October 16, 2024. The parties will meet and confer on which Group A cases should be selected for the first trials by January 13, 2025.

Fact discovery for the Group B pool is scheduled to be complete by December 16, 2024. No date has yet been set for selection of Group B cases for trial, with deposition of expert witnesses expected to be completed by July 31, 2025.

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.