Ringing the Bell(wether): Firefighting Foam Litigation Update

It may be rightfully said that we currently live in a world dominated by man’s innovations. To understand the length and breadth of this statement, one only needs to closely look at their surroundings. Contemporary society does not resemble its ancient counterparts in any shape or form.

From sky-rise buildings to high-tech gadgets, manmade convenience is the driving force of the modern world. We fail to realize that most of what looks harmless is anything but. One case in point would be the innocent-looking, fluffy, cloud-like firefighting foam.

This substance of modern existence has garnered such negative attention that there is an active lawsuit against its manufacturers. In this article, we will discuss the premise and the progress of the firefighting foam lawsuit.

Grounds for the Litigation

Firefighting foam dates back to 1902, when it was discovered by the Russian chemist, Aleksandr Loran. Depending on the class of fire, respective foam concentrate helped in faster extinguishment. It also blocked any chances of reignition.

Fires of Class B break out due to liquid fuels like gasoline and jet fuel. These fires are extremely dangerous because they can ignite by a simple spark and often spread quickly. This created a need for a powerful foaming agent that could tackle such fast-spreading fires.

In the 1960s, the chemical giant 3M and the American Naval Research Company discovered the ideal solution – Aqueous Film Forming Foam (AFFF). This foam had low viscosity which made it suitable for putting out Class B fires. Since then, firefighters have used AFFF as a staple in their daily operations.

Sadly, environmental concerns associated with AFFF began circulating as early as the 1970s. Much later, it was found that AFFF had chemicals that made it a threat to human life. The chemicals, known as per- and polyfluoroalkyl substances (PFAS), were a complex group of over 12,000.

Regular exposure to them could lead to cancer. This turned out to be true as firefighters and military servicemen began suing PFAS manufacturers in 2017. This means the first wave of lawsuits was filed that year. In 2018, the AFFF lawsuit became a class-action multi-district litigation (MDL).

Besides personal injuries, plaintiffs alleged that the defendants (3M, DuPont, and others) knew the health risks involved with their products. Even then, they marketed AFFF as safe and effective (firefighters and the government were kept in the dark).

A Major Win for the Plaintiff’s Counsel

According to TorHoerman Law, firefighting foam litigation can be divided into two categories. The first set of plaintiffs is municipalities that have filed water contamination lawsuits. As much as PFAS are harmful to humans, they can equally damage the environment.

Having a tight bond of carbon and fluoride, these chemicals fail to degrade in the environment. As a result, they can stay in the soil indefinitely. Over time, they seep deep into the soil, contaminating groundwater and community supply water.

Even now, the Environmental Protection Agency (EPA) has at least 180 Superfund sites polluted with PFAS (with cleanup efforts underway). The second set of lawsuits is filed by firemen and military personnel for personal injuries like testicular cancer, bladder cancer, etc.

The first-ever trial in the litigation was conducted last year for all water contamination cases. The City of Stuart vs. 3M Co. et al went in favor of the plaintiff’s counsel. In the middle of the proceedings, 3M agreed to settle the case for $10.3 billion.

This sum was not paid as a lump sum, but the company agreed to pay over 13 years. Using this money, individual municipality case payouts would be determined. Each could utilize their compensation to manage and remove PFAS from their water supply.

This was a major win for the plaintiff’s counsel as it assured quick settlements for the first category of cases. They began to anticipate the outcome of personal injury lawsuits.

What about Personal Injury Lawsuits?

Just when attorneys thought of rejoicing over the first lap of victory, an unexpected roadblock appeared. 3M’s settlement offer applied to most of the water contamination cases, but not all. A sub-group of such cases was pending, called the Telomere water provider cases.

The reason why these cases could not be settled together is because of the difference between the two AFFF agents. Telomer-based AFFF does not break down into PFOS (perfluorooctane sulfonic acid). It generally has 30% to 60% less fluorine compared to those that are PFOS-based.

So, the court decided to handle these cases through a separate trial. This naturally means that the personal injury litigation timeline will be extended further. Recently, Judge Gergel has examined the inventory of personal injury lawsuits to assess the scope of cancers.

At least four conditions (injuries) are under review – testicular cancer, ulcerative colitis, hypothyroidism, and kidney cancer. As settlement offers are made for the sub-group of water contamination cases, new lawsuits are being filed.

These include personal injury and water contamination cases (already been settled). However, the Bellwether discovery pool for personal injury lawsuits is also being memorialized.

This stage is usually a long and tedious one depending on the conflicts between both parties and case complexities. It is here that each side must present their evidence and exchange information. As the discovery process proceeds, both sides will have their chance to build arguments and understand the other’s claims.

Ideally, a settlement must be reached at this stage so that there is no need for a trial. However, if disputes arise, the case’s natural progression will be a Bellwether trial.

At the current rate, it may take another year before average settlement amounts for personal injury cases are known. Then, the process of individual payouts will begin. This means it won’t be before late 2025 or early 2026 until the second category of lawsuits is taken care of.

In any case, the Bellwether trial process is beneficial as it will help the plaintiff’s counsel to understand whether trying the remaining cases would be profitable. Moreover, they will be able to restructure the rest of the cases for better outcomes.