AFFF Lawsuits Over PFAS Chemicals Cleared to Continue, After Judge Rejects “Government Contractor” Defense

The U.S. District Judge presiding over all aqueous film-forming foam (AFFF) lawsuits, including cancer claims brought by former firefighters and water contamination claims, has rejected a motion for summary judgment filed by 3M Company, which tried to argue that manufacturers of the toxic foam should be immune from liability for poisoning public water supplies under a “government contractor” defense.

3M Company, Tyco Fire Products, Chemguard, Inc. and other manufacturers involved in the sale of aqueous film forming foam (AFFF) face more than 2,400 firefighting foam lawsuits brought throughout the federal court system, each raising similar allegations that the manufacturers withheld information about the risks associated with toxic per- and polyfluorinated compounds (PFAS) contained in their products, which have caused cancer and resulted in wide-spread water contamination, especially near military bases, airports and other fire training facilities.

PFAS chemicals were used by the companies in AFFF firefighting foam, which are now commonly referred to as “forever chemicals,” since they can build up in the body and environment. Exposure to the chemicals has been linked to the development of various types of cancer, including testicular cancer, prostate cancer, pancreatic cancer and other injuries.

In addition to claims brought by individuals directly exposed to the firefighting foam, the companies also face lawsuits brought by0 local water providers, who have incurred damages attempting to remove chemicals that leached into water supplies.

Given common questions of fact and law presented in the claims, the 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 are expected to begin next year.

Firefighter Foam Government Contractor Immunity Defense Rejected

Last month, the Court held oral arguments over a motion for summary judgment filed by 3M, claiming that it should be immune from liability for problems caused by PFAS chemicals in the firefighting foam under a “government contractor” defense.

The defense stems from a 1988 Supreme Court decision, Boyle v. United Technologies Corp., which determined imposition of liability on a government contractor through state laws could present a conflict of interest between state and federal interests, limiting the manufacturing of government designs or resulting in increased prices. However, to maintain the defense, the manufacturer has to show that it made the government aware of any defects or shortcomings known to impact the design.

Government contractors have to prove that federal government officials had to have full knowledge of any defect which led to the liability claims, and that the product fit the specifications approved by the government.

On September 16, Judge Gergel issued an order and opinion (PDF) which denied 3M’s government contractor immunity claims in the AFFF litigation.

The opinion indicates that 3M knew or suspected some of the risks of PFAS, also known then as C8 chemicals, as early as the 1970s, after dozens of studies were published. However, the company failed to warn the government or the scientific community at large.

“The record before the Court, viewed in a light most favorable to Plaintiffs as the nonmoving party, includes numerous instances in which 3M knowingly withheld highly material information about the defects and risks associated with its AFFF product,” Gergel ruled. “Because of the limited knowledge of the properties of C8 chemistry and their risks to human health and the environment within the government and the general scientific community, the withholding of these hundreds of internally conducted 3M studies was particularly significant.”

3M did not acknowledge the problems with PFAS and firefighting foam chemicals until it disclosed more than 1,200 reports between 1998 and 2000, Judge Gergel noted. He ruled these and other factors made summary judgment inappropriate and cleared the cases to move forward.

PFAS Health Concerns from Firefighting Foam

PFAS were first introduced into the manufacturing industry in the 1940’s, because of their ability to resist heat, grease, stains, and water. However, since then the chemicals have been linked to a myriad of adverse health effects including liver damage, thyroid disease, decreased fertility, high cholesterol, obesity, hormone suppression, and cancer.

It is projected to take thousands of years for PFAS chemicals to degrade, and past studies have shown their ability to enter and stay in the environment and human body through the air, dust, food, soil, and water. Previous U.S. Centers for Disease Control and Prevention studies have shown PFAS chemicals primarily settle into the blood, kidney and liver, and could likely be detected in the blood of 98% of the U.S. population.

The chemical substances are used to manufacture a number of products, including some food packaging materials, pizza boxes, popcorn bags, fabrics, nonstick cooking pans, and other products.  However, it is perhaps most known for its use in firefighting foams used by military and civilian firefighters.

September 2022 AFFF Firefighting Foam Lawsuit Update

Following the rejection of the government contractor defense, the Court will continue with planned bellwether trials, which will be scheduled to help the parties gauge how juries are likely to respond to certain evidence and testimony that is being repeated throughout the litigation.

Early in the pretrial proceedings, Judge Gergel has established a “bellwether” program that started with a group of water contamination cases going through case-specific discovery in preparation for a series of early trial dates, that are expected to begin in mid-2023.

While the water provider lawsuits move through the bellwether process, a growing number of firefighter cancer lawsuits continue to be brought by individuals directly exposed to AFFF during training and response exercises, adding allegations that the manufacturers should have warned firefighters that they faced a future risk of cancer.

The same manufacturers also now face an increasing number of PFAS water contamination lawsuits being brought by individuals diagnosed with pancreatic cancer, liver cancer, bladder cancer, testicular cancer, kidney cancer or ulcerative colitis, following years of drinking tap water that has been found to contain high levels of the chemicals from firefighter foam, particularly near military bases and other locations where PFAS was released into the water system.