Breaking News: MDL Judge Will Allow EPA Water Chemical Evidence in Bellwether Firefighter Foam AFFF Lawsuit Next Month
In a long-awaited announcement, the Environmental Protection Agency (EPA) finally released proposed limits on the acceptable levels of two chemicals in drinking water sources. The EPA’s limits could heavily affect the outcome of the pending Multidistrict Litigation (MDL) claims that seek to hold manufacturers of Aqueous Film-Forming Foam (AFFF) responsible for the harmful effects caused by exposure to AFFF.
The defendant AFFF manufacturing companies immediately filed motions to bar the EPA recommendations from trial evidence. However, Judge Richard M. Gergel has ruled that plaintiffs can introduce evidence of the proposed allowable drinking water limits for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) because it is relevant to the EPA’s opinion about these chemicals’ toxicity.
What Is the AFFF Lawsuit? Basic Background Information
Firefighters and military personnel have used aqueous film-forming foam since at least the 1960s to extinguish fires, especially those involving gasoline and other fuels that water alone cannot control. AFFF works so well because the foam creates a filmy barrier that smothers the fire and keeps oxygen from fueling the flames or reigniting.
However, scientists have linked the chemicals found in AFFF, including perfluoroalkyl and polyfluoroalkyl chemical substances (PFAS), to several serious medical conditions, including cancers and auto-immune problems.
Once research established a causal link between AFFF and these serious medical conditions, those who were exposed to AFFF and diagnosed with cancer began filing product liability lawsuits against AFFF manufacturers. Eventually, with so many cases pending in federal courts, the MDL was established in South Carolina to coordinate discovery and pre-trial processes.
The first bellwether trial is scheduled to begin on June 5, 2023. This case, filed by the City of Stuart, Florida, against several chemical makers, including 3M, DuPont, and Tyco Products, claims the AFFF manufacturers contaminated the city’s water supply and groundwater sources with AFFF firefighting foam.
The second phase of the bellwether trial will involve individual personal injury claims brought by firefighters or military personnel exposed to AFFF during their employment or service. These are the cases we’re watching closely since individuals injured by direct exposure to PFAS have filed the most claims in the MDL.
What Exposed People to PFAS?
Military members and firefighters who used AFFF to combat fires had direct contact with these dangerous PFAS chemicals and experienced a higher-than-average incidence of serious medical problems. These brave people breathed the spray, directly touched it, and even swallowed the chemicals in the air when physically battling a fire.
Also, some firefighting gear picked up PFAS. This means every time a firefighter put on their protective gear, they actually wore clothes containing dangerous chemicals directly on their skin.
In addition, these chemicals can infiltrate groundwater and the drinking water of the people living and working near places where AFFF was used. Until recently, however, no guidelines addressed acceptable levels of PFAS in drinking water, so AFFF makers continued producing dangerous products without regulation.
Why Is the Recent EPA Proposed Regulation Important to AFFF Injured Victims?
The chemicals in AFFF were long suspected to be dangerous. PFAS are particularly concerning because these “forever chemicals” can take decades to dissipate. In the past few years, researchers have determined that PFAS can cause various medical conditions, including cancer, thyroid disease, and pulmonary issues.
In their lawsuits, plaintiffs allege that the defendants knew about the risks these chemicals posed but chose to continue manufacturing AFFF anyway. Without EPA regulations in place, these companies could claim they did not violate federal requirements and the value of using AFFF outweighed the potential harm.
Previously, the EPA avoided issuing any official regulations regarding the allowable amount of these chemicals in drinking water. Now, the EPA has finally proposed a maximum contaminant level (MCL) of only four parts of PFAS per trillion. Using these EPA standards, plaintiffs’ counsel can now argue that exposure to even a small amount of PFAS is unsafe and not worth the risk to firefighters or others who might come into contact with AFFF.
What Is the Basis of the Defendants’ Objections?
Unfortunately, the proposed MCL levels are not a final regulation. Since the EPA’s position is not definite at this time, the AFFF manufacturers asked the court not to allow this evidence at the first bellwether trial next month. Thankfully, the judge did not agree.
Although the EPA’s recent proposed drinking water limits are not the ultimate proof of liability, they could go a long way to holding AFFF manufacturers accountable for the damage caused by their products.
Also, since the Stuart, Florida, trial does not involve individual personal injury claims, the EPA’s proposed limitations may apply differently in this first trial than in future trials. Either way, these standards should further support victims’ allegations that even a tiny amount of these chemicals can cause serious problems, and help them to hold manufacturers accountable.
What Medical Issues Can AFFF Exposure Lead To?
These PFAS forever chemical compounds accumulate in the body and can cause long-term damage.
Research links several medical conditions to long-term PFAS exposure, including:
- Bladder cancer
- Kidney cancer
- Pancreatic cancer
- Testicular cancer
- Liver cancer
- Breast cancer
- Leukemia
- Lymphoma
- Ovarian cancer
- Prostate cancer
Other serious medical conditions linked to PFAS include:
- Asthma
- Infertility
- Increased cholesterol
- Thyroid disease
- Kidney disease
- Crohn's disease
- Liver disease
- Neurological disease
- Changes in fetal development
- Changes in child development
- Pregnancy-induced hypertension
To qualify as a plaintiff in the AFFF firefighting foam MDL lawsuit, doctors must have diagnosed you with one or more of the cancers listed above after AFFF exposure. The medical conditions in the second list constitute ancillary issues and will not support a legal claim in the MDL at this time.
Which Manufacturers Does the AFFF Lawsuit Name as Defendants?
The pending MDL identifies several companies in the production of AFFF.
The current named defendants include:
- 3M Company
- Tyco Fire Products
- Chemguard
- Kidde-Fenwal, Inc.*
- Buckeye Fire Equipment
- Dupont
- Chubb Fire
- The Chemours Company
* In May 2023, Kidde-Fenwal filed for Chapter 11 bankruptcy protection in anticipation of the upcoming AFFF lawsuit trials. As a result, the judge removed Kidde-Fenwal from the first bellwether trial according to bankruptcy laws. Any further legal action against this company must go through the bankruptcy court system.
What Damages Can a Plaintiff Who Was Exposed to AFFF Recover?
In the second phase of AFFF trials, the individuals exposed to AFFF and then diagnosed with one of the cancers listed above may request monetary compensation for their financial losses, also known as legal damages.
If doctors diagnosed you with cancer from AFFF exposure, an experienced AFFF lawsuit lawyer could gather the necessary information to prove your case. You will need medical records, bills and receipts, and evidence of your AFFF exposure. If you have problems compiling this evidence, contact a dedicated mass tort lawyer for help.
Most personal injury victims that file AFFF lawsuits request compensation for:
- Medical expenses - With a cancer diagnosis, you can expect extensive medical bills. You can claim compensation for all expenses related to current and future medical care, including testing, lab work, surgeries, medications, radiation, chemotherapy, hospital services, at-home services, and more.
- Lost income - After a cancer diagnosis, most people miss work to attend doctor appointments, receive treatment, and rest and recover. You can recover both current and future lost income, including missed promotion opportunities and reduced earnings if you cannot return to your former position.
- Pain and suffering - Cancer treatments can cause pain and exhaustion. The emotional toll can overwhelm you. A lawyer can evaluate these losses and experiences to include them in a lawsuit.
- Loss of quality of life - During treatment and possibly for the rest of your life, you may miss out on certain events and relationships may change. Again, your lawyer can request compensation for these important losses from the responsible party or parties.
- Wrongful death expenses - When a family member dies from AFFF exposure, their estate or family members may request compensation for the loss of their loved one’s services and support, loss of family relationships, including spousal consortium and parental guidance, along with funeral and burial expenses.
If Doctors Diagnosed You With Cancer After AFFF Exposure, You Have Rights
If you are reading this because you or a loved one were exposed to PFAS from AFFF firefighting foam use, drinking water contamination, or another occupational or environmental source, see a medical professional if you develop any symptoms or PFAS-related health issues. You may also take legal action if the negligent actions of AFFF manufacturers harmed you.
An experienced product liability lawyer or mass tort attorney can explain your options and provide the resources you need to bring a claim for your losses. Your circumstances are unique, but you are not alone. Reach out to a qualified legal professional today and begin your journey to recovery.