Aqueous film-forming foam (AFFF) was designed by US Navy scientists and a government contractor company, 3M, in the 1960s. It is specially designed for high-intensity fires such as gasoline and chemicals. This compound comprises poly-fluoroalkyl substances (PFAS), known as “forever chemicals.” PFAS is a group of chemicals resistant to intense heat and cannot be broken down by water or oil. As a result, these compounds are also non-biodegradable and can easily sip through the ground contaminating the soil and the water basin for a very long time. Also, when consumed through contaminated water and foods, the chemicals build up in the body tissues over time, causing different types of cancers. The firefighting foam mass tort lawsuit attorneys from Stephens & Stephens can help you get compensation for these conditions.
The adverse environmental effects of PFAS were discovered as early as the 1970s. Over the past ten years, studies have established that increased exposure to PFAS in firefighting foam can lead to various cancers. In a health advisory published in 2016, the Environmental Protection Agency (EPA) warns that chronic exposure to PFAS in firefighting foam can lead to some types of cancer, such as kidney and testicular. Other organizations that have raised concerns over the use of AFFF include the Agency for Toxic Substances, the Center for Disease Control and Prevention (CDC), and Disease Registry (ATSDR), and National Center for Environmental Health (NCEH).
Consequently, chemical plant workers, firefighters, military personnel, and people exposed to Aqueous Firefighting Foam risk developing long-term health problems. People exposed to the firefighting foam and suffering from different health problems, including cancer, are filing product liability lawsuits against PFFF manufacturer 3M and DuPont, among others.
Health conditions related to AFFF PFAS exposure
Prolonged exposure to the aqueous film-forming foam used in firefighting can lead to serious, life-threatening illnesses and complications. The type of condition and severity depends on the exposure period and the person’s health status. Even in lower doses, exposure to PFAS can be dangerous as these toxins, with a half-life of about eight years, accumulate in the body over time, leading to severe complications.
According to the US Department of Veteran’s Affairs, exposure to PFAS in APFF increases the risk of developing the following conditions:
- Negative immune system functioning
- Liver damage
- Disruption of hormonal balance
- Raised cholesterol levels
- Fertility problems
- Issues with fetal and child development
- Pregnancy-induced preeclampsia/hypertension
- Increased risk of thyroid disease and asthma
Cancers related to AFFF or PFAS exposures include cancer of the pancreas, kidneys, breast, liver leukemia, ovaries, Non-Hodgkin’s lymphoma, testicles, and prostate. Studies show that thyroid, bladder, kidney testicular, prostate, and colon cancers are most commonly caused by AFFF exposure. You deserve compensation for these effects. Reach out to the AFFF lawsuit attorneys at Stephens & Stephens.
Who are the defendants in the AFFF lawsuit?
- Companies named in the AFFF lawsuits include manufacturers and suppliers of the toxic firefighting form, and they include:
- Tyco Fire Products
- ChemDesign Inc
- Chemguard Inc
- Clariant Corporation
- Kidde-Fenwal Inc.
- AGC Chemicals Americas
- Dynax Corporation
- UTC Fire & Security Americas Corporation
- 3M and DuPont are the leading manufacturers of AFFF in the United States and significant defendants in the AFFF lawsuit.
- About the AFFS lawsuit
The AFFF firefighting foam lawsuits were consolidated into a class action MDL in the US Federal Court for the District of South Carolina presided over by Judge Richard M. Gergel. The first AFFF cases were filed in 2017. In December 2018, there were enough pending cases to prompt JPML to consolidate them into a class action MDL. Some cases were claims by local governments of contaminated water supply, while the others were product liability of alleged exposure to AFFF that led to cancer
According to the MDL 2873 webpage, all the cases involve varied cases of action and claims relating to the exposure of per- or poly-fluoroalkyl substances (PFAS). The pages further explain that the Plaintiffs allege that aqueous film-forming foams contain two types of PFAS, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), from contaminated underground water where the AFFS was often used. These areas include airports, military bases, and industrial sites where these chemicals are manufactured. After the bellwether trials, the AFFF MDL is expected to end in a global settlement.
Government contractor defense
On September 19, 2022, the courts rejected 3 M’s government contractor defense. The company sought a summary judgment claiming it designed the AFFF product under a government contract, making it immune to liabilities. The AFFF MDL judge refused the government contractor defense, stating that the company withheld information on the product’s potential risks from the government; thus, the defense could not apply.
The government contractor defense allows lawsuit immunity for parties doing business with the government. However, they have to meet specific criteria:
- Show that the US government approved reasonably precise specifications for the product
- The product met the specifications required, and
- The supplier warned the government about the known dangers of using the product, which was unknown to the US government.
In defense of their government contractor doctrine, the companies claim that the US government approved and enforced the precise specifications for the product requiring the use of PFAS. The defendants also argued that the government had specific requirements for the product to comply with federal guidelines. And to meet these standards, the manufacturer had to include PFAS in the product. For this reason, the supplier provided the government with the product it wanted. They also argue that they warned the government of the risks they knew involved in using the PFAS. Thus the government made an informed decision when using a PFAS product.
The judge indicated that he had doubts about the application of the government contractor defense based on the facts of the PFAS AFF MDL, which were not supported by the case law cited.
The defendants also argued that they warned the EPA of the health hazards surrounding using PFAS in the product for them to decide whether to use or reject it. Judge Gergel questioned the kind of health information shared with the EPA and expressed his doubts that the government would knowingly continue using such a harmful product.
With so many studies pointing to the harmful nature of the AFFF PFAS, the defense is having a tough time in the lawsuit. 3M, DuPont, and Tyco still hang on to their claims that the government was aware of the health implications of their products and still allowed them to continue manufacturing. Most of the lawsuits are based on the government’s use of MilSpec AFFF, alleging that the fluorocarbon surfactant components of MilSpec AFF contained different types of toxic PFAS.
Progress of the AFFF lawsuit
As of April 20, 2023, there were 4,173 lawsuits in the firefighting foam MDL. The cases in the AFFF MDL are a mix of personal injury cases by veterans and former firefighters with cancer and municipal water contamination lawsuits by local water authorities. However, the municipal water contamination cases in the MDL have been prioritized in the bellwether trials. The bellwether trial comprises three cases involving municipalities as the plaintiffs. They allege that PFAS in AFFF contaminated drinking water sources in the states. The accused parties in these lawsuits, PFAS manufacturers, AFFF manufacturers, and suppliers, are expected to provide remediation.
The first bellwether trial is the case of the City of Stuart v. 3M Co. et al., scheduled for June 5, 2023. This case involves the Municipal of Stuart, Florida, alleging that AFFF contaminated its water system. The outcome of this trial is critical in determining the future course of the litigation. After the water supply bellwether cases, separate test trials for personal injury cases will be filed against the plaintiffs.
In December 2022, three defendants, namely Chemguard, Inc., BASF, and Tyco, filed a summary judgment motion to be dismissed from the City of Stuart case. These three argued that there was no evidence (plaintiff testimony or expert witness) linking their specific AFFF products to the city’s water contamination. In their response, the plaintiffs cite expert testimony supported by record evidence concluding that the products were a substantial contributing source to the contamination. To defeat this motion by the three defendants, the plaintiffs should demonstrate that there is a factual dispute requiring the jury to resolve.
The Daubert rulings of the first AFFF bellwether trial are also coming up. Dauber’s ruling defines the standards for the admission of expert witnesses in the trial. This ruling will define the kind of testimony the court will allow for these cases. The Daubert standard arose from a Supreme Court case that set the standard for expert testimony admission in federal courts. This law states expert witness testimony must be based on reliable and relevant scientific knowledge. The presiding judge is also the gatekeeper, tasked with assessing the reliability of experts’ testimony and the scientific underpinnings before the trial commences. The Daubert rulings in the City of Stuart case will apply to all the cases in the MDL, including the personal injury lawsuits.
In April 2023, CDC announced the launch of the National Firefighter Registry (NFR) for cancer, encouraging all firefighters to enroll. The role of the registry is to track and analyze cancer rates and trends among firefighters, which are believed to be higher than usual. The program is enforced by the firefighter cancer registry act passed by Congress in 2018. It is part of the “Cancer Moonshoot” Program running through the National Institute for Occupational Safety and Health (NIOSH). NFR collects firefighter work information and compares it with cancer information from state registries.
AFFF Lawsuit Mediation settlement
Towards the end of 2022, Judge Gergel appointed Layn Phillips, a retired judge, to work with the parties in the AFFF lawsuit through a series of mediation talks. The mediation sessions are scheduled before the first bellwether trial and involve the individual plaintiffs, the municipals, and the defendants.
What is AFFF?
AFFF is created by combining fluorinated surfactants with foaming agents. The active ingredients in the AFFF are perfluorooctanoic acid (PFOA) and perfluoro octane sulphonic acid (PFOS). These two fluorinated surfactants belong to a chemical group known as per- and poly-fluoroalkyl substances (PFAS) and are artificial and, thus, do not occur naturally. PFOA is a by-product in the manufacture of AFFF and is a fully fluorinated organic acid. Scientific evidence points out that PFOA and PFOS are carcinogenic, and the US government is trying to remove them from the environment.
Once an individual is exposed to AFFF, the PFAS contained in it remain in the body for an average of eight years. Thus, the compounds are known as forever chemicals. As a result, the compounds build up in the person’s tissues and organs with continued exposure resulting in cancer.
PFAS can be absorbed in the body through the skin or inhalation. These toxins also remain in the soil, sipping into underground water. They can also make their way into the diet through plants. Those at a high risk of PFAS exposure include those who used AFFF frequently and those who lived near areas where it was used, manufactured, or stored.
Studies linking AFFF and health conditions
Studies conducted by the International Agency for Research on Cancer (IARC) revealed that human exposure to PFAS led to a significantly increased risk of kidney, prostate, and testicular cancer. These findings were affirmed by studies by the Center for Disease Control and Prevention (CDC) and the American Cancer Society, who listed the AFFF firefighting foam chemicals as human carcinogens.
According to EPA reports, blood serum concentrations of PFOS and PFOA are higher than average for workers and individuals living near facilities that use or produce PFAS. Firefighters are found to have PFAS concentration three times higher than those not in the profession.
In a study published in the Journal of Occupational Medicine, firefighters have a higher cancer rate of 60% than the general public. The same study also established that some types of cancer are higher among these professionals, such as prostate cancer at 400% and leukemia at 300%. This study confirms that chronic exposure to AFFF does cause cancer.
Also, another recent study published in the Medical Journal of Hypertension links PFAS exposure among women to a 42% to 47% increased risk of hypertension. The study, which involved 1058 women, 470 of whom had been diagnosed with hypertension, also links PFAS to an increased risk of cardiovascular disease. According to the findings, those with the highest PFAS concentration had a 71% increased risk of hypertension.
A recent study published in May 2022 by researchers from the Maine Medical Center Research Institute established that PFAS could reduce bone mineral density in adolescent boys leading to orthopedic problems such as bone fractures.
Who qualifies for an AFFF lawsuit?
Our experienced product liability attorney can help you file an AFFF lawsuit. Those eligible for an AFFF lawsuit include:
Those exposed to PFAS either in their line of duty or otherwise have been diagnosed with cancer or affected by other health complications related to PFAS exposure. Most plaintiffs are diagnosed with kidney, testicular, prostate, and pancreatic cancers.
What is the expected settlement in the AFFF lawsuits?
Since there has been no AFFF trial, the settlements can only be based on speculation based on past similar injuries and mass torts. The settlement amounts will depend on the injuries’ severity and the plaintiff’s age. The top tier, or the plaintiffs most injured, will receive the highest settlements of approximately $200,000 to $500,000, the second tier between 150,000 and $300,000, and the third tier or the least $75,000.
Call an AFFF Attorney From Stephens & Stephens, LLC
An attorney from Stephens & Stephens, LLC can help. Our firefighting foam mass tort attorneys can be reached when you call 1-800-548-4494 or fill out the contact form on our website.