In early October 2023, 3M and DuPont, major manufacturers of aqueous film forming foam (AFFF), received court approval to settle the first of several waves of active AFFF lawsuits pending before the United States District Court for the District of South Carolina. With additional lawsuits joining the AFFF multidistrict litigation (MDL) on a weekly basis, the irresponsible manufacturers who have played an unparalleled role in polluting American communities and natural resources are finally being held accountable.
As product liability and state-advanced PFAS and AFFF lawsuits begin to progress through the court system, it is important to address the allegations leveled against prominent AFFF manufacturers and to track the trajectory of their participation in the MDL. Although the recalcitrant defendants incessantly deny their liability and have repeatedly asserted their readiness to go to trial, the mounting body of evidence tells a story not of absolution or exoneration but of deceit, duplicity, and denial.
AFFF Multidistrict Litigation in South Carolina Court
After the filing of dozens of AFFF lawsuits, representatives of the plaintiffs requested that the U.S. Judicial Panel on Multidistrict Litigation (JPML) consolidate the cases into a multidistrict litigation (MDL), in 2018. The decision began a years-long and, at times, ferocious process as municipal, state-level, and civilian litigants filed suit against some of the most powerful names in the petrochemical industry.
The majority of the cases involve one common charge: major companies in the petrochemical market responsible for the manufacture and sale of aqueous film-forming foam (AFFF) were acutely aware of the dangers AFFF posed, but failed to warn users. At a time when the initial round of AFFF lawsuits participating in the AFFF MDL have been successfully resolved, it would be mistaken to suppose that the defense will abandon its evasions and eleventh-hour efforts to avoid prosecution. Although signing billion-dollar checks and filing 12-year payout plans with the SEC, not one has admitted wrongdoing.
Municipal Water Supplier AFFF Lawsuits
The first set of lawsuits that the comprehensive AFFF MDL addressed was brought by municipal-level water suppliers whose resources had been contaminated by the toxic substances manufactured and distributed by the defendants. The contamination required years of testing, sampling, and remediation campaigns, which, collectively, necessitated enormous expenditures.
In an effort to recoup their losses and fund future decontamination drives, the water suppliers filed suit against nearly 2 dozen AFFF suppliers. Immediately before the initiation of a bellwether trial from the City of Stuart, FL, a joint motion from the parties requested a delay on the grounds that a tentative settlement agreement had been reached.
By June 2023, the water suppliers and defendants assented to a comprehensive settlement, which cost 3M a sizeable sum of $10.6 billion and DuPont Chemours $1.18 billion. Although the U.S. District Court for the District of South Carolina took several months to accept the agreement, the presiding judge, Richard M. Gergel, J.D., approved the proposal in October, thereby bringing a conclusion to the first round of lawsuits.
Personal Injury AFFF Lawsuits
The bulk of the nearly 6,000 AFFF lawsuits comes from individual plaintiffs who sustained occupational injuries caused by overexposure to the highly toxic AFFF. The Class B fire suppressant has, since the 1960s, been one of the most effective ways in which to extinguish oil, petroleum, lacquer, and jet fuel fires. Consequently, the military, which funded the invention of AFFF, municipal fire stations, airports, refineries, riggers, and more have employed the PFAS-containing substance to suppress otherwise inextinguishable flames.
Those who worked in industries or occupations which made use of AFFF incurred tremendous risks to their lives and livelihoods which, tragically, translated into cancers and other debilitating and fatal illnesses. Consequently, victims of AFFF overexposure have begun to pursue thousands of product liability lawsuits in an effort to acquire compensation for injuries and fatalities which the negligent and reckless actions of the defendants caused.
State-Level AFFF Lawsuits
To complicate matters even more for the defense, various state attorneys general have filed AFFF lawsuits alleging the desecration and contamination of state resources which have required state legislatures to bankroll clean-up efforts. In much the same way that the defense rejected the basis of the allegations in the preceding categories of lawsuits, so too do they deny any wrongdoing or responsibility.
For instance, in response to a court filing from Ashley Moody, the Florida Attorney General, a DuPont de Nemours spokesperson denied that the company had ever produced dangerous PFAS products. The official statement, which also served as the essential template for subsequent responses, also cited the filing as evidence of a recent and illegitimate campaign targeting DuPont in the absence of proof.
Chief Offenders in AFFF Contamination
Although the named defendants in the ongoing AFFF litigation number close to two dozen, select manufacturers who produced the firefighting foam enjoy a disproportionate share of the blame for the sheer amount of AFFF that they produced over the years and the degree to which they hid its dangers from the public.
The responsibility, of course, is easily and accurately quantified by viewing the amount of damages they have had to pay in the recent AFFF global settlement agreement. Whether or not the defendants are likely to pursue a similar course in handling product liability and state-level litigation remains to be seen.
3M Liability for AFFF Pollution
As its jaw-dropping eleven-figure settlement payout indicates, 3M Company is one of the chief offenders in perpetuating AFFF PFAS contamination throughout the country. Given its cardinal role in the development of the fire suppressant, this outcome is unsurprising.
The United States military forged a partnership with the 3M Company in the 1960s in an effort to produce a flame retardant capable of extinguishing water-resistant conflagrations, which the 1967 fire aboard the USS Forrestal catalyzed. From 1962 to 2001, 3M enjoyed an almost uninterrupted exclusive contract-buyer relationship with the military, supplying it with innumerable amounts of AFFF.
The chemical formula for 3M’s AFFF included per and polyfluoroalkyl substances (PFAS), one of most potent of which was perfluorooctanoic sulfonic acid (PFOS). In the meantime, 3M capitalized on the nationwide demand for the seemingly miraculous product, and began to supply municipalities and companies in the aviation and petrochemical industry with AFFF.
When the EPA finally undertook negotiations with 3M to address the highly toxic substances composing its blockbuster product, which occurred after the promulgation of new federal regulations in 2002, the damage had been done – and 3M Company knew it. Documents dating back decades reveal that the company was well aware of the toxicity of AFFF and the potential it had to contaminate civilian and military water supplies.
Nevertheless, it continually manufactured and distributed the firefighting foam with disastrous consequences for waterways and supplies, topsoil, fauna, and human life.
DuPont de Nemours: Mergers, Severance, and Denial
DuPont is an American multinational corporation thats efforts to modernize and revolutionize itself in the 2010s shocked the business world. Unchaining its subsidiary, Chemours, in 2015, and subsequently finalizing a merger of equals with Dow Chemical in 2017, it appeared poised to dominate the biotechnology and scientific innovation industries for decades to come.
Unfortunately for DuPont, the distance from Chemours, which has acted as a chief producer of PFAS-based products, including AFFF, was insufficient to deny liability and prohibit legal action. Failing to convince the courts that it shares no responsibility for AFFF PFAS contamination throughout the country, it has been continually listed as a defendant in the ongoing litigation.
One of the reasons behind DuPont’s repeated but ineffective efforts to avoid liability is the compelling evidence prosecutors have introduced. For example, in the Florida AFFF lawsuit, Attorney General Ashley Moody claims that the company was acutely aware of the health hazards inherent in exposure to AFFF at least as early as 1978, at which point DuPont began to conduct routine health inspections for employees who might have suffered high rates of exposure.
DuPont de Nemours, – the name for the post-2019 and revamped version of the company – cleverly but unconvincingly responded to Moody’s filing by arguing that it had never manufactured AFFF. Of course, after its severance with Chemours it had not. DuPont de Nemours denied any wrongdoing and emphasized its preparedness to go to trial for the product liability and state-level AFFF lawsuits.
Tyco Fire Protection Company: Haunted by Wisconsin Class Action
Another prominent AFFF manufacturer that has found itself at the center of the legal proceedings in South Carolina federal court is Tyco Fire Protection Company. In contrast to both 3M and DuPont, Tyco has firsthand if unflattering experience with AFFF litigation.
Settling a class action lawsuit surrounding AFFF contamination in the Town of Peshtigo, WI, in 2018, Tyco consented to a $17.5 million payout. It subsequently announced, in keeping with 3M and other prominent manufacturers, a phaseout of AFFF firefighting foam by 2024 in the midst of grappling with the South Carolina MDL.
In contrast to a multidistrict litigation, which involves the consolidation of similar cases against a common defendant for pretrial proceedings alone, class actions result in the creation of a legal “class” on whose behalf a single or several representative cases are brought for pretrial and trial legal proceedings.
Kidde-Fenwal Incorporated: Bankruptcy or Bust
Kidde-Fenwal has experienced a peculiar trajectory in the advancing AFFF litigation in South Carolina. Alleging that the mounting costs of the legal fees threatened to fleece the company out of existence, it filed a Chapter 11 bankruptcy claim in Delaware bankruptcy court, which was summarily added to the court’s docket.
The result was the company’s ignominious withdrawal from the multidistrict litigation, at least for the time being. In much the same way that DuPont de Nemours has relied upon its contemporary independence from a former subsidiary to evade prosecution, so too did KFI seek to direct attention to National Foam, which had produced and distributed AFFF under the mantle of KFI from 2007 to 2013.
Selling the company, which was rechristened New National Foam, for $77 million and summarily undergoing an acquisition by Carrier Global Corps (CARR.N) in 2020, Kidde-Fenwal has proven troublesome to its new parent company, which said, in the aftermath of the May 2023 bankruptcy filing, that it was not quite a “strategic fit” and would “not support KFI financially in the face of KFI’s potential AFFF liabilities”.
Illnesses Associated with AFFF Contamination
Aqueous film-forming foam is fundamentally composed of highly toxic and carcinogenic chemicals known as PFAS. On account of their tremendously powerful carbon bonds, they have a tendency not only to remain in the environment for extended periods of time but to accumulate in biological specimens.
The Agency for Toxic Substances and Disease Registry, a subsidiary of the Department of Health and Human Services, is currently investigating the extent to which PFAS chemicals, which are endemic in consumer products and firefighting foams alike, have pervaded American waterways and communities. Preliminary findings suggest high levels of exposure, which far exceed the federally mandated restrictions.
The ATSDR’s reports are highly alarming, given PFAS and AFFF’s potential to result in:
- Bladder cancer
- Liver cancer
- Breast cancer
- Testicular cancer
- Ulcerative colitis
- Non-Hodgkin’s lymphoma
Common Damages in AFFF Lawsuits
If you experienced occupational or civilian overexposure to AFFF and subsequently developed any of the preceding conditions associated with PFAS, you may be suffering from mounting medical costs, insufficient insurance coverage, decreased earning potential, and diminished quality of life.
Fortunately, you may be eligible to seek compensation for the injuries you have sustained on account of 3M, DuPont de Nemours, and Tyco’s negligence and recklessness. Common damages in AFFF lawsuits tend to address:
- Medical expenses – past, present, and future
- Lost income and wages
- Transportation costs
- Pain and suffering
- Mental anguish
- Loss of enjoyment
With the assistance of one of our experienced product liability AFFF attorneys, you can calculate the precise figure to which you may be entitled and tend to your health as we protect your rights.
Contact an Experienced AFFF Lawyer Today
Although the South Carolina AFFF litigation has revealed the shocking extent to which massive multinationals are willing to go to avoid accepting responsibility for their malfeasance, the recent global settlement agreement and nationwide bans, phaseouts, and state-level decontamination campaigns suggest the emergence of a new and less polluted era.
For those who have fallen victim to the irresponsible business practices of AFFF producers and their current and/or former subsidiaries, however, accountability is of paramount importance. That is why the legal team of qualified AFFF lawyers at LLN, which has, collectively, participated in over 60 AFFF lawsuits, is ready to help.
If you suspect or believe that you have suffered from AFFF overexposure and wish to get compensation for your injuries, consider contacting us today.