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EEOICPA & RECA Attorneys

Stephens & Stephens has obtained over $60 million through the Radiation Exposure Compensation Act and the Energy Employees Occupation Illness Compensation Act for our clients

Gloria ReynoldsGloria Reynolds
04:16 30 Mar 24
Stephens & Stephens was very helpful in getting my claim processed and helping me in getting my settlement, staff was knowledgeable and professional and very kind if I call and needed to ask a question they would call me back within a timely manner. Thank you so much for your help .Continue to be blessed Gloria
Dee GodfreyDee Godfrey
18:49 12 Mar 24
I was astounded with the service I received from Mr. Hugh Stephens in regard to my husband's compensation claim. He was not only efficient, but also compassionate, and communicated clearly and frequently. Because of his outstanding efforts and expertise, I, who am now a grieving widow, am unexpectedly stabile and secure. I had little to do. He did all the heavy lifting. I'm so very grateful for his help. I'll always remember not only his professionalism, but also his kindness.
Audrey OgletreeAudrey Ogletree
22:19 09 Mar 24
From: Laurence OgletreeI received good assistance from Stephens & Stephens in submitting the recent claim for increased impairment benefits from the Energy Workers program.
Randy MooreRandy Moore
14:48 07 Mar 24
I was a machinist at Honeywell F.M.&T.and developed bilateral tinnitus and bilateral sensorineural hearing loss. They helped me file a claim with EEOICPA in 2017. Stephen’s & Stephen’s was very good to work with, they take care of all the paperwork and help with any paperwork I receive from the Department of Labor. They stay on top of things helping with scheduling impairment reviews etc.I feel that without their help this would have been a very overwhelming process.I plan on still using them if any other illnesses occur due to my employment with Honeywell.
Mike DauzatMike Dauzat
15:54 02 Mar 24
I highly recommend Stevens and Stevens. Hugh Stevens and his staff are very professional and very friendly. They're extremely good at making sure you get the full amount of money you deserve. If you need a DOL lawyer, I highly recommend this team. I can't be more happy that I picked Stevens and Stevens.
Mary YbarraMary Ybarra
01:33 27 Feb 24
Stephen’s and Stephen’s has kept fight for my dad. Now they are fight for my mom. They are on top of things and I would recommend them to anyone who needs help and guidance with the Uranium mines.
Dianne HarperDianne Harper
01:02 17 Feb 24
Robert and I are very pleased with Mr. Hugh Stephens and all that he has done for us. From the first moment we spoke, we sensed that though Mr. Stephens exhibits sharp business acumen, he cares deeply about his clients and he has a huge heart.
Diane pontonDiane ponton
17:38 07 Feb 24
I tried to get others to help me with this claim, and it wasn"t until I hired Mr. Stephens that things started happening. I would recommend any one to get in touch with him . I would go to him again, if i ever needed to.
Judy LeonardJudy Leonard
22:26 06 Feb 24
I very much appreciate the successful litigation concerning my husband's Hanford work related illness. Stephens & Stephens LLP were thorough, caring, considerate, and fair during this difficult time.
Kenneth GKenneth G
18:23 03 Feb 24
Mr. Stephens was able to simplify an otherwise complicated lengthy process (DEEOIC) to file an initial claim as well as a claim for impairment benefits.
18:08 03 Feb 24
Frankie KnucFrankie Knuc
19:24 08 Jan 24
I had other attorneys hired in Cortez, Colorado and Grand Jct., Colorado to assist me with receiving my uranium claim, but they were not successful. I was advised by an employee of CNS of Stephens & Stephens, LLP good work. I contacted them & they took my case It was settled very quickly. I have been very pleased with this group & would advise others of their prompt service. I would recommend them to others. Respectfully, Frankie Knuckles
Rebecca ConsolRebecca Consol
19:57 22 Dec 23
My family used Stephen’s and Stephen’s for a settlement case. We were extremely pleased with all they did. They were very professional, easy to get a hold of, and invaluable when it came to answering questions and handling complicated Department of Labor issues and forms. They also did everything in a very timely manner. I have already recommended them to other people.
Thomas CliffordThomas Clifford
15:29 21 Dec 23
I have been represented by Hugh Stevens for several years now, He and his staff has made everything so easy for me. I had lung cancer from working in the uranium processing industry, they have opened so many doors for me and made dealing with DOL so much easier. They always answer my questions in a very timely manner. I have referred several other people to him and he has been able to get them through this process also. There are benefits that I was not aware of that he has brought to my attention and been able to lead me through the process of obtaining them. I would most highly recommend him to lead anyone through this process.
Lonnie killingHawkLonnie killingHawk
02:35 14 Dec 23
When I first contacted Stephens & Stephens I was at the end of my rope with DOL. Hough and his staff got me on track and handled everything with DOL and just made this process so easy. Do not know where I'd be with out them. They are able to communicate at a layman's level and understand the client. Would strongly recommend this firm.
Ruthy LyonRuthy Lyon
21:00 28 Sep 23
Our initial conversation with Mr. Stephens was productive & reassuring. His previous experience with similar cases was obvious and very helpful, in both asking us specific questions for clarification & also addressing our own questions. Breanna is also a great asset to their team.
James O'DayJames O'Day
15:07 13 Sep 23
I have referred several friends to Hugh Stephens and they were more satisfied than they ever expected. I would refer him with confidence to anyone in need. I trust when he speaks for me, for example, in court. He is a good communicator and a deep thinker. He is well respected in his profession. He handles environmental law, injury law, and medical malpractice. He is tactful and direct and knows what he is doing. He knows the legal briar patches well.

AFFF Firefighting Foam Lawsuit Attorneys

Stephens and Stephens EEOICPA claims’ attorneys are investigating cases of PFAS exposure through the aqueous film-forming foam (AFFF). This firefighting foam was designed by U.S. 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 leach through the ground, contaminating soil and groundwater for a very long time. Also, when firefighting foam is consumed through contaminated water and foods, the chemicals build up in the body tissues over time, causing different types of cancers.

Contact Hugh Stephens AFFF attorney for a free case evaluation if you or a loved one suffers from kidney cancer, kidney cancer, testicular cancer, cancer of the thyroid, and ulcerative colitis after a possible AFFF/PFAS exposure.

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 certain types of cancer, including kidney and testicular cancer. Other organizations that have raised concerns over the use of AFFF include the Agency for Toxic Substances Disease Registry (ATSDR), the Center for Disease Control and Prevention (CDC), and the 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 certain health problems, including cancer, are filing product liability lawsuits against PFFF manufacturers 3M and DuPont, among others. They include firefighters and military servicemen based at various stations where PFAS AFFF was used.

AFFF/PFAS Personal Injury/Wrongful Death May 2024 Updates

The proposed deadlines for the AFFF litigation as per CMO 26D are as follows:

  • Tier 1 Discovery – June 18, 2024.
  • Tier 2 Discovery – October 16, 2024.
  • Plaintiffs’ Expert Witness Exchanges November 15, 2024 and May 12, 2025.
  • Defendants’ Expert Witness Exchanges January 10, 2025 and June 30, 2025.
  • Plaintiffs’ Rebuttal Expert Witness Exchanges January 10, 2025 and June 30, 2025.
  • Completion of Expert Depositions February 14, 2025, and July 31, 2025.
  • Summary Judgment/ Filing of Daubert Motions March 6, 2025
  • Responses to Motions – April 3, 2025
  • Replies in Support of Motions – April 17, 2025

Tier 2 Personal Injury Bellwether proceedings are yet to be scheduled and it is still unclear which diseases would be included in Tier 2.

In February 2024, the plaintiffs’ lawyers and BASF entered into a tolling agreement in nine AFFF cases. This refers to an agreement to suspend or extend the statute of limitations on a claim.

Bellwether Discovery and Trials

In December 2023, parties involved in the AFFF litigation submitted their proposed Initial Personal Injury Bellwether Discovery Pool of 25 plaintiffs, including five individuals claiming kidney cancer, eight testicular cancer, eight hypothyroidism/thyroid disease, and four ulcerative colitis. These conditions are being prioritized for the AFFF bellwether trials and are likely to be included in Tier 1. However, claims of pancreatic cancer, prostate cancer, male breast cancer, bladder cancer, and liver cancer are being accorded significant weight. 

Kidde-Fenwal Inc. (KFI) and 3M Bankruptcy Fears

Lexington Insurance, National Union Fire Insurance, and Century Indemnity Co. refused to cover Kidde-Fenwal Inc. (KFI) for AFFF lawsuits. The insurance companies say KFI needs to go through arbitration to determine if the “pollution exclusion” clause in their contract frees them from liability. Century Indemnity argues that the lawsuits occurred outside their contractual period and they don’t have to pay. KFI is avoiding arbitration and prefers to settle the matter at the bankruptcy court.

3M filed for bankruptcy during the earplug litigation and is likely to do the same as the AFFF cases get closer to a settlement. 

The National Fire Protection Association Inc. (NFPA) Lawsuit

In April 2024, a Massachusetts judge allowed the International Association of Fire Fighters (IAFF) to move forward with its lawsuit against the National Fire Protection Association Inc. (NFPA), a nonprofit that develops fire safety codes and standards. IAFF alleges that NFPA’s standards require the use of PFAS substances in the manufacture of fire gear and their testing methods failed to show the dangers of PFAS when heated.

Plaintiffs also filed lawsuits against the manufacturers of turnout gear protective clothing worn by firefighters. They allege exposure to PFAS used in the manufacture of the garments has caused them to develop cancer, liver damage, thyroid disease, and other injuries.

The science related to the effects of PFAS is still evolving. A new eBioMedicine study shows that people with higher levels of perfluorooctanesulfonic acid (PFOS) have a higher likelihood of developing thyroid cancer. According to this study, those with higher levels of linear PFOS had a 56% increased risk of developing thyroid cancer.

Telomer-based AFFF

The first bellwether trial for Telomer-based AFFF is scheduled for August 2024. Telomer-based AFFF contains lower levels of PFAS chemicals, thus its water contamination cases were not included in the water contamination cases settled in August 2023. 

According to Judge Gergel, the upcoming bellwether cases will draw from the New Jersey, New York, California, and South Dakota utility lawsuits.

AFFF Water Contamination Settlement 

Recent studies have shown a high prevalence of testicular cancer among Air Force service members. A federal study links high PFOS and PFOA levels in military personnel blood samples to testicular cancer. The National Cancer Institute and Uniformed Services University of the Health Sciences research did not establish a link between those who lived in highly PFAS-contaminated military bases with higher PFOA and PFOS blood levels. However, those with testicular cancer had higher PFOS/PFOA concentrations in their blood than those without the illness.

As of August 2023, 5,614 cases were pending in the AFFF firefighting foam MDL in the District of South Carolina. However, most of these cases were resolved by the contaminated water settlement. The judge issued a preliminary approval of the settlement agreement in some of the municipality water contamination cases. The final fairness hearing is scheduled for December 14, 2023.

Negotiations are underway for 3M to settle their share of AFFF drinking water contamination cases at $10 billion. In June 2023, the Chemours Company, DuPont de Nemours, and Corteva agreed to settle all the PFAS drinking water contamination at $1.185 billion. Chemours contributes half the amount, while DuPont and Corteva split the other half.

In May 2023, the EPA PFOA/PFOS limits were allowed as evidence in the first AFFF case that would be going to trial in June. The defendants were against the ruling, arguing that these findings were not known during the toxic AFFF invention. However, the judge stated that these EPA PFOA/PFOS limits supported the water contamination claims as they indicated the toxicity of the chemicals.

Following the bankruptcy petition, Kidde-Fenwal Inc. (KFI), a defendant in the AFFF lawsuit, remains separated from the ongoing trial until the bankruptcy court in Delaware determines the bankruptcy case.

AFFF Lawsuit Mediation settlement

On June 5, 2023, the U.S. District Court for The District of South Carolina Charleston Division court put on hold the first bellwether trial in the AFFF Multi-District Litigation, City of Stuart, Florida v. 3M Company, scheduled for trial on the same day. The order was issued by the presiding Judge Richard Mark Gergel to allow the parties 21 days to work on a global resolution after the parties filed the request in a joint motion. The counsel for the Plaintiff and counsel for 3M Company has been in serious settlement discussions to reach a global resolution of the claims of the water district plaintiffs pending against 3M. The parties informed the Court that they have reached a stage where they believe a final binding agreement is achievable and time could be more effectively spent finalizing the agreement and obtaining the necessary approvals rather than commencing the trial of this case.

Towards the end of 2022, Judge Gergel appointed Layn Phillips, a retired judge, to work with the parties in the AFFF lawsuit through a mediation process. The mediation sessions were scheduled before the first bellwether trial and involved the individual plaintiffs, the municipalities, and the defendants.

Daubert decision in Stuart v. 3M 

The defendants’ Co-Lead Counsel filed an omnibus motion to exclude plaintiffs’ experts’ testimony in the case. The Daubert decision denies most of the defendants’ arguments but does little to predict what will happen on the personal injury/product liability front. The Stuart v. 3M case is an environmental contamination/property damage/remediation case, which is very different from product liability/personal injury claims and may be met with much more skepticism from the judge.

The court Daubert ruling was as follows:

Motion to dismiss Drs. Siegel, Levy, MacIntosh, and Mr. Petty as expert witnesses

The Court granted and denied in part the defendant’s motion to dismiss Drs. Siegel, Levy, MacIntosh, and Mr. Petty as expert witnesses. The defense argued these expert testimonies violated the “public health” standard of care. The motion was granted to the extent that plaintiff’s experts opine that a public health standard of care or the precautionary principle impose legal duties in this case. The Court denied the defendants’ motion as evidence of public health standards, or the precautionary principle, is potentially relevant to foreseeability, the reasonableness of a defendant’s conduct, or negligence generally.

The Court granted in part and denied in part the defendant’s motion that the opinions of Dr. Siegel, Mr. Petty, Dr. Levy, Dr. MacIntosh, Dr. Higgins, Dr. Martin, Dr. Lowder, and Dr. Travis should all be excluded to the extent they opine on “Defendants’ mental states.” The Court explained that expert testimony about a party’s intent, motive, or state of mind is inadmissible. Explaining that intent is a question for the trier of fact that does not require expert testimony. And secondly, expert testimony concerning the state of mind, intent, or purpose is unreliable because it is not grounded in analytically sound principles or methods. The Court rejected Defendants’ arguments to the extent it contends that plaintiff’s experts may not testify in a more general manner regarding a defendant’s knowledge over time.

Motion on Brown’s source findings

The Court denied defendants’ motion challenging Brown’s primary source findings. Defendants were seeking to exclude Brown’s opinions, adopted by Dr. Higgins, that the primary and secondary sources of PFAS detected in the City’s wells are AFFF. They argued that Brown did not consider alternate sources of PFAS while determining his primary sources. The Court explained that the defendant’s contention that Brown “cherry-picked” data in the sense that he wholly failed to consider alternative sources of PFAS besides AFFF was without merit.

The Court denied the defendants’ motion challenging Brown’s secondary source opinions and testimony. The defense contended that these opinions must be excluded as they are not scientific or otherwise reliable. They also argued that Brown concluded that “all of the PFOA and PFOS in the entire 6.12-square mile area of the City’s groundwater must have come from AFFF” without citation to underlying data or performing any 2:18-mn-02873-RMG Date Filed 05/02/23 Entry Number 3059 Page 9 of 24 10 scientific analysis. (Dkt. No. 2696-1 at 22).

Dr. Martin’s opinions

The Court denied Defendants’ motion that argued that Dr. Martin’s opinions allocating PFOA to 3M through his B/L/T-method are inadmissible because they were “invented-for-litigation” and have “never been replicated or tested.” Defendants argue that Dr. Martin’s allocation opinion based on his modified B/L/T analysis is inadmissible for three reasons:

  1. Defendants argue that the allocation opinion must be excluded because it was developed for litigation and is thus unreliable. The Court explained that while Defendants list the above “problems” with Dr. Martin’s method, they provide no specific argument as to why.
  2. The Court denied the defendants’ motion that argued that Dr. Martin failed to account for “isomer fractionation.” Defendants argue that Dr. Martin’s analysis should be dismissed as it ignored certain effects- regarding PFOA, “studies show that linear isomers travel slower than branched isomers through the environment,” a process called fractionation, and that this “can cause the relative percentage of branched isomers to increase the farther PFOA travels from the source area.”
  3. The Court also denied the defendant’s argument that Dr. Martin’s B/L/T-method is prone to systemic analytical bias “if the comparator standard has a different isomer pattern than the test sample.” Defendants argue that Dr. Martin acknowledged this bias and could have performed an “isomer-specific” analysis to “account for any isomer pattern differences,” but explicitly failed to do so, rendering his testimony inadmissible.

Brown, Dr. Higgins, and Dr. Martin C8 fluorotelomer surfactants testimony

The Court denied the defendants’ motion that argued that Brown, Dr. Higgins, and Dr. Martin cannot testify that C8 fluorotelomer surfactants in fluorotelomer (“F.T.”) AFFF transformed into PFOA at Stuart. The Court referred to the plaintiff’s notes- stating that evidence exists establishing that “there is no debate in the scientific community that FT-AFFF transforms into PFOA—it is a fact based on more than a decade of testing and analysis outlined in peer-reviewed publications.”

The Court denied the defendants’ motion requiring Dr. Martin’s opinions to be excluded because he has no basis on which to opine that “residual telomer-based PFOA” comes from FT-AFFF “rather than the other likely sources of PFAS which he conveniently ignores.” The Court supported the plaintiff’s argument that, Dr. Martin employed isomer profiling to that end and further evaluated Stuart’s site conditions and hydrological pathways in reaching his opinions.

The Court rejected the defendant’s argument that Brown’s persistent opinions were inadmissible because they didn’t result from a reliable methodology and did not fit the facts of this case. The defendants argued that Brown’s persistence opinions are inadmissible because they do not address “PFOS levels in Stuart’s drinking water at Stuart’s water treatment plant” but rather focus on persistence levels in the vadose zone—the area between the ground surface and the permanent water table—and groundwater, which is immediately below the vadose zone. The Court cited the plaintiff’s explanation that “because PFOS in the vadose zone leaches into the groundwater, the persistence of PFOS in the vadose zone directly affects how long PFOS will continue to enter the groundwater from which Stuart draws its drinking water.”

Brown’s calculation of the carbon partition coefficient

The Court rejected the defendants’ arguments regarding Brown’s calculation of the carbon partition coefficient- Defendants argued that rather than reliably determining the appropriate value to use for the particular environmental conditions at Stuart, Brown simply averaged the KOC values from seven articles that studied a variety of different environmental conditions. Defendants further expressed their opinion that the use of this average renders Brown’s findings unreliable. They also criticized Brown’s calculation of FOC, which represents the organic content of the soil. Defendants argued that in his vadose model, Brown used FOC data applicable to the upper two feet of the soil to model soil characteristics throughout the entire 8.5 feet of the vadose zone. Defendants also noted that in his batch flush model—which predicts the time it takes for PFOS levels to dissipate in groundwater—Brown used FOC data from soils between five and ten feet below the ground to model FOC in groundwater that was between 40 and 65 feet deep, again rendering his findings unreliable.

Brown’s “qualitative” PFOA persistence opinion

The Court excluded Brown’s “qualitative” PFOA persistence opinion. Defendants challenged Brown’s “qualitative” opinions about PFOA persistence, noting that Brown admitted that he “did not do a quantitative persistence analysis for PFOA” and “simply made a qualitative comment as it relates to PFOA, given its properties relative to PFOS.”

Brown admitted in his deposition that “if he was calculating persistence for an AFFF foam that did not contain PFOS, ‘clearly we’d have run our analysis different[ly].” The Court explained that the plaintiff did not present a cogent argument addressing Brown’s cited testimony thus, the opinion lacked a reliably articulated methodology.

Berryhill’s testimony

The Court granted the defendant’s motion and excluded Walton’s testimony. Walton opines that producing C6-based AFFF in the 1980s onward would have been comparable in cost to C8 AFFF. Also, if all AFFF had been low-C8 from the beginning, it would have resulted in a “greater than 99% reduction of the PFOA in groundwater from AFFF has compared to what occurred historically.”

According to the Court, Walton’s opinion that the relative cost to manufacture C6 versus C8 fluorosurfactants and fluorotelomer surfactants is devoid of a factual basis. In his report, Walton admits “[t]he cost of C6 and C8 ECF reactor feedstocks from the 1960s to 2000s was not readily available . . . and there are gaps in the data.”

Robert Johnson’s financial testimony

Court denied the defendant’s motion seeking to exclude Robert Johnson’s testimony concerning the financial condition of certain defendants and the present value of future costs of treating Stuart’s water supply. According to the Court, Johnson formed his opinions about the financial conditions of certain defendants, based on publicly filed financial disclosures such as 10-K Reports, Proxy Statements, and Stock Market Data from the Wall Street Journal. The Court stated that the said testimony would be helpful to a layperson who has little to no understanding concerning detailed financial disclosures.

Defendants also challenged Johnson’s use of a 3.5% rate of inflation arguing that Johnson did not explain why averaging seventy years of CPI data is a “reliable methodology.” The Court explained that Johnson arrived at this rate of inflation by averaging the Consumer Price Index average inflation rate between 1950 and 2020. Finally, the Court rejected the defendants’ arguments challenging Johnson’s use of U.S. Treasury zero coupon strips.

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. If you or a loved one was exposed to PFAS through AFFF and suffered any of the conditions below, you might be eligible for compensation. Reach out to Stephens and Stephens EEOICPA claims attorney for a free case evaluation.

According to the U.S. Department of Veteran’s Affairs, exposure to PFAS in APFF increases the risk of developing the following conditions:

  • Cancer
  • Negative immune system functioning
  • Liver damage
  • Disruption of hormonal balance
  • Increased 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, ovaries, testicles, and prostate, as well as leukemia, and Non-Hodgkin’s lymphoma. Studies show that thyroid, bladder, kidney testicular, prostate, and colon cancers are most commonly caused by AFFF exposure.

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:

  • 3M
  • DuPont
  • Chemours
  • Tyco Fire Products
  • ChemDesign Inc
  • Chemguard Inc
  • Clariant Corporation
  • Kidde-Fenwal Inc.
  • AGC Chemicals Americas
  • Corteva,
  • Arkema
  • 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.

August 2023 AFFF/PFAS lawsuit updates

Recent studies have shown a high rate of testicular cancer among the air force servicemen. A federal study links high PFOS and PFOA levels in military personnel blood samples to testicular cancer. the research conducted by the National Cancer Institute and Uniformed Services University of the Health Sciences did not establish a link between those who lived in highly PFAS-contaminated military bases with higher PFOA and PFOS blood levels. However, those with testicular cancer had higher PFOS/PFOA concentrations in their blood than those without the illness.

As of August 2023, there were 5.614 cases pending in the AFFF firefighting foam class action MDL. However, majority were resolved by the contaminated water settlement. The judge issued a preliminary approval of the settlement agreement in some of the municipality water contamination cases. The final fairness hearing is scheduled for December 14, 2023.

Negotiations are underway for 3M to settle their share of AFFF drinking water contamination cases at $10 billion. In June 2023, the Chemours Company, DuPont de Nemours, and Corteva agreed to settle all the PFAS drinking water contamination at $1.185 billion. Chemours contributes half of the amount while DuPont and Corteva split the other half.

In May 2023, the EPA PFOA/PFOS limits were allowed as evidence in first AFFF lawsuit that would be going for trial in June. The defendants were against the ruling arguing that these findings were not known at the of the toxic AFFF invention. However, the judge stated that these EPA PFOA/PFOS limits supported the water contamination claims as they indicated the toxicity of the chemicals.

Following the bankruptcy petition, Kidde-Fenwal Inc. (KFI), a defendant in the AFFF lawsuit was not going to be part of the June 2023 trial. The bankruptcy case would be determined by the bankruptcy court in Delaware.

May 2023 AFFF lawsuit updates

The Court allowed the inclusion of the proposed EPA PFOA and PFOS limits as evidence in the upcoming trial for June 5th lawsuit. The defendants are against this ruling and are likely to appeal it.

Also, one of the defendants, a former AFFF manufacturer, Kidde-Fenwal Inc. (KFI) filed for bankruptcy. The petition will be determined in Delaware bankruptcy court.

About the AFFF lawsuit

The AFFF firefighting foam lawsuits were consolidated into an MDL in the U.S. 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 causes 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. The goal under these circumstances is to use the bellwether trials, to help the parties reach a global settlement.

Plaintiffs’ Co-Lead Counsel

  • Michael A. London
  • Paul J. Napoli
  • Scott Summy

Plaintiffs’ Liaison Counsel

  • Fred Thompson, III

Plaintiffs’ Executive Committee

  • Charles E. Schaffer
  • Richard S. Lewis
  • David McDivitt
  • Larry R. Cohan
  • Kevin Madonna
  • Frank L. Gallucci, III
  • Erin Dickerson
  • William J. Jackson
  • Richard Head
  • Matt Edling
  • Wesley Bowden
  • Nancy Christensen
  • Kevin Hannon
  • Roe Frazer, II
  • James Ferraro
  • Christiaan A. Marcum
  • Christina Cossich
  • Gale D. Pearson
  • Carl L. Solomon
  • Gregory A. Cade

Plaintiffs’ Advisory Counsel

  • Robert A. Bilott

Defendants’ Co-Lead Counsel

  • Joseph G. Petrosinelli
  • Michael A. Olsen

Defendants’ Co-Liason Counsel

  • David E. Dukes
  • Brian C. Duffy

Defendants’ Coordination Committee

  • Joseph G. Petrosinelli
  • Michael A. Olsen
  • David E. Dukes
  • Brian C. Duffy
  • Mark A. Chertok
  • Christina M. Falk
  • Jillian C. Kirn
  • Amanda S. Kitts
  • Elizabeth Knauer
  • Liam J. Montgomery
  • Lyn P. Pruitt
  • Liat Rome
  • Molly Craig
  • David Erickson
  • Kenneth Reilly

Government contractor defense

On September 19, 2022, the Court rejected 3 M’s government contractor defense. The company sought summary judgment, claiming it designed the AFFF product under a government contract, making it immune from private liabilities. The AFFF MDL judge was not persuaded by the government contractor defense, stating that the company withheld information on the product’s potential risks from the government; thus, the defense does 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 U.S. 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 U.S. government.

In defense of their government contractor doctrine, the companies claim that the U.S. 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 were 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 AFFF 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. 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 AFFF 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 scheduled.

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 must demonstrate that there is a factual dispute which the jury is required to resolve.

The Daubert rulings of the first AFFF bellwether trial are also coming up. The Daubert case ruling defines the standard for the admission of expert witnesses at 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 requires that expert witness testimony be based on reliable and relevant scientific knowledge. The presiding judge is a 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.

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 U.S. government is trying to remove them from the environment.

PFAS are known as forever chemicals. Once an individual is exposed to AFFF, the PFAS contained in it remains in the body for an average of eight years. These compounds build up in a person’s tissues and organs with continued exposure, increasing the risk of cancer.

PFAS can be absorbed in the body through the skin or inhalation. These toxins also remain in the soil, leaching into the groundwater. 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, which 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 cancer rate that is 60% higher than that of the general public. The same study also established that some types of cancer are higher among these professionals, such as prostate cancer at 400% higher and leukemia at 300% higher than that of the general public. This study provides convincing evidence 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 to file for a compelling 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 amount of a potential settlement can only be informed by speculation based on past similar injuries and other mass torts. The settlement amounts will depend on the severity of the injury and the plaintiff’s age. The top tier, or the plaintiffs most injured, will receive the highest settlements estimated at between $200,000 and $280,000, the second tier between 100,000 and $150,000, and the third tier or the least at approximately $50,000.