PFAS Observer
The ongoing multidistrict litigation (MDL) concerning PFAS-containing firefighter foams continues to be an actively litigated matter as well as an area of public concern. PFAS, or per- and polyfluoroalkyl substances, have garnered significant attention due to their ubiquitous nature and potential health risks. Firefighter foams have been alleged to contaminate water sources with these harmful chemicals that have raised complex issues of liability, regulation and scientific evidence in response to a rise in litigation for damages.
In Re Aqueous Film-Forming Foams Product Liability Litigation
Most recently in this MDL, Plaintiffs are seeking preliminary approval of a $316.5 million class-action settlement with BASF Corp. This settlement is part of a series of settlements aimed at addressing drinking water contamination claims across the United States. Filed on June 3, the settlement requests Judge Richard Gergel of the U.S. District Court for the District of South Carolina to certify the settlement class and approve actions to finalize the agreement. BASF has agreed to pay $312.5 million for costs related to testing, monitoring and installing filtration systems to reduce PFAS levels in drinking water, with an additional $4 million for administrative costs.
BASF, successor to Ciba Inc., had manufactured products used in firefighting foams until 2003. Plaintiffs allege BASF was aware of the environmental persistence of PFAS and its potential to contaminate drinking water sources. This settlement follows similar agreements with other defendants like DuPont and 3M, totaling billions of dollars, directed to addressing what plaintiffs call a historic drinking water contamination crisis.
Judge Gergel has also given preliminary approval to a $750 million class-action settlement between Tyco Fire Systems and drinking water utilities. The approval marks the third such action in the MDL, following earlier settlements totaling nearly $14 billion involving 3M, DuPont, Chemours and Corteva. The agreement between Tyco and the water utilities was reached in April, shortly after the EPA finalized national standards for PFAS in drinking water. Key dates for finalizing the settlement are set, including a deadline for utilities to opt out by September 23 and a fairness hearing scheduled for November 1.
Judge Gergel also addressed objections from defendants who argued they should be considered “released parties” under the settlement. Deepwater Chemicals and Chemicals Incorporated, referred to as the “Tollers,” claimed they provided services under Tyco’s direction but did not market or sell any products related to the contamination. However, Judge Gergel ruled that the settlement agreement did not intend to release these defendants based on the language and intent of the agreement.
The “Tollers” also contested other provisions of the agreement, such as claim-over provisions and methods for set offs. Judge Gergel nonetheless upheld the settlement terms, noting the commonality of claim-over provisions in class action settlements and the presence of a set off mechanism in the agreement. Overall, Judge Gergel’s preliminary approval signals progress and willingness to resolve litigation over PFAS contamination given the intense public safety concerns. These settlements provide a framework for finalizing settlements and addressing lingering legal challenges in other pending matters.
Lastly, in another to streamline the MDLs, Judge Gergel established a process for attorneys to dismiss claims or entire cases involving personal injury allegations not prioritized for bellwether trials. These trials focus on cases involving kidney and testicular cancer due to exposure to PFAS. The May 28 case management order (CMO), which follows a previous order from May 15, allows plaintiffs to dismiss personal injury claims not related to these specified cancers without prejudice by August 22. The CMO aims to manage the anticipated thousands of dismissals efficiently, due to the narrowing of injuries, and details the procedures for dismissing entire cases, specific claims, or plaintiff parties.
Under the terms of the CMO, dismissed claims can be refiled before the MDLs conclude and with requisite medical documentation. Failure to comply with these terms could result in claims being dismissed with prejudice upon motion by defendants. The CMO also outlines specific timelines and requirements for submitting medical records and expert reports for plaintiffs opting to pursue their claims within the MDL. Principally, Judge Gergel is attempting to organize the complex litigation involving tens of thousands of claims related to PFAS contamination, balancing the needs of efficiency with procedural fairness for all parties involved.
In sum, the approval of significant settlements such as the $316.5 million with BASF and the $750 million with Tyco indicates a willingness of defendants to settle rather than face potentially larger liabilities through prolonged litigation. This trend is likely to continue as more cases are consolidated and plaintiffs seek compensation for damages related to PFAS contamination. While substantial settlements are being reached, litigation involving PFAS is likely to continue for years, given the complexity and scope of the issue. New defendants may enter the litigation, and legal strategies may evolve as more scientific research and evidence regarding the health impacts of PFAS emerge. To the extent that legal rulings (rather than settlements) arise, these will be pivotal in defining corporate liabilities and regulatory expectations surrounding environmental impact and public health, including prompting businesses to adopt proactive measures to mitigate risks associated with PFAS and other environmental contaminants. With regulatory scrutiny intensifying, businesses across sectors must stay abreast of these developments to navigate potential legal challenges and uphold environmental stewardship. These MDLs are shaping a new paradigm of corporate responsibility, emphasizing the importance of sustainable practices and compliance with quickly evolving environmental regulations in safeguarding long-term business viability and reputation.
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