Aqueous Film Forming Foam or AFFF fire suppressant is used to extinguish fires caused by flammable liquids like jet fuel. Developed by the US Navy’s Naval Research Laboratory, AFFF has been a vital part of the firefighting industry since the 1960s.
Sadly, the exposure to Per-and Polyfluoroalkyl Substances (PFAS) found in AFFF comes with health risks and environmental contamination. Studies have discovered that firefighters are at greater risk of developing certain cancers when compared to the general population. These include cancers of the thyroid, bladder, kidney, breast, prostate, and testicles.
Two dangerous disease-causing chemicals in PFAS include Perfluorooctane Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS). The International Agency for Cancer Research (IARC) has even classified PFOA, the most studied PFAS, as a human carcinogenic.
Also known as the ‘forever chemicals,’ PFAS are even found in local water bodies. However, only levels above 70 ppt make the water unfit for consumption. In light of the health and environmental repercussions, AFFF or firefighting foam lawsuits were filed in 2017. A year later, they were consolidated into a class-action Multi-District Litigation (MDL).
There are over 5000 cases currently pending, and apprehensions regarding settlements are rising. In this article, we will explore the latest developments in this Federal lawsuit – the good, the bad, and the ugly.
The First Bellwether Trial and 3M’s Settlements
According to TorHoerman Law, firefighting foam lawsuits are unique as they may be filed under two categories –
- Water contamination lawsuits filed by communities suffering from local water supply pollution
- Personal injury lawsuits filed by firefighters suffering from health issues like cancer
The major defendants in the AFFF lawsuit include 3M, DuPont de Nemours, Chemguard, and Tyco, among others. Just last month, the first pivotal Bellwether trial was held for which the City of Stuart vs. 3M Co. et al case was chosen. This trial was set to alter the course of the litigation, especially since the jury would resolve complex scientific evidence.
The chemical manufacturer (3M) made several attempts to deny responsibility. These included the government contractor defense and preventing the inclusion of the EPA’s proposed PFAS limits. Finally, the Judge delayed the trial as the defendant was willing to come to a settlement for municipalities.
It was later reported that 3M had agreed to settle the lawsuit over PFAS contamination with $10.3 billion. US municipalities will receive these funds over the next 13 years to treat PFAS-related pollution in water supply systems.
The water contamination lawsuit settlement spelt good news since the latter half of 2023 would focus on personal injury lawsuits.
AFFF Personal Injury Lawsuit Plaintiffs Fear Settlement Delays
It is estimated that individual personal injury lawsuits will be settled through a tier-based system. These tiers will be ranked in light of the strength of each plaintiff’s case, determined by three factors –
- The severity of cancer and type
- The extent of AFFF exposure
- The age of the plaintiff
Top-tiered plaintiffs may receive anywhere between $200,000 and $500,000. The next tier would be eligible for the $150,000 to $300,000 range. However, this will be anything but easy given the inexhaustible resources available to the defendant(s) to put up their defense.
Lengthy court proceedings may put intense physical and emotional pressures on the plaintiffs, threatening to deteriorate their health further. Worse yet, some plaintiffs fear that they may succumb to their injuries before justice is served.
A recent case was that of an Alabama plaintiff who died with their case unresolved. This mischance is a stark reminder that there could be others yielding to a similar fate if settlement delays persist.
What Happens if a Plaintiff Dies Before Case Settlement?
When a plaintiff in a civil lawsuit becomes deceased before a settlement, then the presiding Judge issues the abatement. This means the case is not entirely terminated but put on hold temporarily.
During the holding period, the plaintiff’s right to sue (heir or legal representative) may continue the case on the deceased’s behalf. In the case of the Alabama plaintiff, Judge Gergel allowed the deceased’s daughter to continue the legal battle.
The only difference now is that the lawsuit has changed from a personal injury to a wrongful death case. Most wrongful death cases are settled without a trial unless the liability of the defendant is unclear. Even then, settlement may take a few months or, in some cases, a few years.
If the alternative happens (the plaintiff dies without any surviving right to sue), the court will terminate the case.
In the following months, AFFF case numbers are expected to grow, with more people learning about their link with cancer. July 2023 marked the month with the highest case volume (500 in total) since the MDL was formed.
Plaintiffs have a better chance of winning and securing a fair settlement when they’re guided by legal experts. Lawyers must have relevant experience, expertise, and specialization in handling complex lawsuits against behemoths like 3M and DuPont.