Aqueous Film-Forming foam, or AFFF, is a type of firefighting foam used to extinguish Class B fires. The low viscosity of this foam makes it suitable to combat fast-spreading liquid-fuel fires.
Though 3M had started manufacturing AFFF by the mid-1960s, it was not until the 1970s that the Department of Defense (DOD) used it across military installations. Firefighters have been using this foam ever since, albeit oblivious to its health risks.
Gradually, it was revealed that AFFF was responsible for life-threatening conditions, primarily cancer. It was due to per- and polyfluoroalkyl substances (PFAS) – chemicals used to prepare AFFF foam.
Besides human health, AFFF foam has detrimental effects on the environment, believed to stay indefinitely in the soil (forever chemicals). As a result, a wave of civil lawsuits began piling up against AFFF foam manufacturers in 2017. The same was consolidated into a multi-district litigation (MDL) in 2018.
These lawsuits were divided into water contamination and personal injury cases, the former filed by municipalities and the latter by firefighters. In this article, we will discuss whether any settlements have been made in this litigation.
The Position of Water Contamination Lawsuits
Back in June 2023, the first-ever Bellwether trial regarding the AFFF foam lawsuit was held. The chosen case for the trial was that of the City of Stuart, Florida vs. 3M Co. et al.
The case’s origins belong to 2018 when the city’s residents were notified of high levels of PFAS in the water supply. The municipality filed a water contamination lawsuit against 3M, which is the main defendant in the AFFF foam lawsuit.
During the trial, the defendant made multiple attempts to avoid a fair settlement, including the exclusion of EPA’s proposed limits for the contaminant.
However, it was later declared that a confidential settlement had been reached between the two parties. 3M finally agreed to pay $10.3 billion over 13 years for all water contamination cases. Once this global settlement was made, individual cases were taken up to determine their payout.
However, this global settlement did not involve those cases filed against Telomer-based AFFF. It is also firefighting foam that supposedly contains lower levels of PFAS. In September 2023, Judge Gergel issued a new case management order for all cases involving Telomer-based AFFF. These will go to trial in August 2024.
Where We’re at with Personal Injury Lawsuits
Attorneys are currently speculating whether the upcoming trial in 2024 will impact settlements for personal injury lawsuits. According to TorHoerman Law, the AFFF MDL currently has 6,000 lawsuits (some of which are water contamination cases).
As lawsuit filing continues, new studies proving the link between AFFF and cancer are being released. The strongest study to date linking AFFF with testicular cancer was found. Another indicated a 56% higher risk for thyroid cancer due to PFAS exposure.
Thankfully, some tangible progress was made in the personal injury AFFF litigation early this month. Shortly, all parties (from both sides) will select cases that must be included in the Bellwether discovery pool. The case management order for the same was released last month, in which the parties have time till mid-November.
In the upcoming weeks, plaintiffs will conduct case-specific fact discovery to select a few cases for the Bellwether trial.
How Much More Time Will It Take?
As of now, no settlements have been made for personal injury lawsuits filed by firefighters and military servicemen. Usually, such cases (when consolidated into a class-action MDL) take at least one to two test trials before being settled.
To put an exact date on the settlement is difficult. However, it can take at least four to six months from the first Bellwether trial before any individual settlements are made. The tentative period for the first Bellwether trial is set for the middle of 2024.
If the trial is held around that time, we may expect to see individual settlements by the end of 2024 or early 2025.
Finally, let’s talk a bit about the personal injury lawsuit settlement amounts. The top-tier plaintiffs will most likely be those with long-term occupational exposure and severe injuries. These would include the deadliest types of cancers, including those of the kidneys and pancreas.
Lower tiers would include those suffering less serious cancer types such as prostate and testicular. Estimations show that payouts would range between $200,000-$500,000 while minimum settlement could go as far as $75,000.
The plaintiff’s counsel is still awaiting the litigation’s progression for fair settlements.