State-Led Litigation
Many states attorneys
general-initiated lawsuits against PFAS manufacturers over the harmful
effects resulting from the professional use of firefighting foam. These
lawsuits were later consolidated into multidistrict litigation in the
District Court of South Carolina. The initial legal filings for the
States of Maine and Florida are explained below.
Florida
Florida
State Attorney General Ashley Moody filed a suit against several
businesses — including DuPont, Chemours, Tyco Fire Products and
Chemguard — alleging the known use of harmful PFAS materials that put
state residents at an increased risk of cancer and other serious
illnesses. The lawsuit is predicated on a tortious failure to warn
theory. It claims that Defendants failed to warn the public about the
dangers of forever chemicals contained in firefighting foams and that
these foams were used in several locations in and around Florida. The
foams have been used for decades to knock down fires that burn through
liquid fuel at military bases, airports and industrial properties, the
lawsuit says. PFAS or “forever chemicals,” these substances take an
extremely long time to break down in the environment. They were also
used in products like Teflon and Stainmaster carpets, the state’s
lawsuit says, and put people at a significant risk for developing
thyroid disease, kidney and testicular cancers, and abnormally high
cholesterol.
Moody’s office accuses manufacturers of multiple
offenses, including negligence and creation of a public nuisance. The
state’s lawyers wrote that the dangerous chemicals may have seeped into
the ground and tainted drinking water. Attorney General Moody’s office
says manufacturers knew or should have known that firefighting foams
would endanger people and the environment. The complaint does not
specify how much Florida seeks in compensation or other sanctions, but
it says the state has already incurred costs to investigate
contamination and anticipates subsequent expenses for environmental
cleanup and helping sick residents.
Maine
Maine
Attorney General Aaron Frey enlisted outside counsel to initiate a
lawsuit against manufacturers of forever chemicals contained in
firefighting foams. The lawsuit is expected to target manufacturers of
PFAS and similar chemicals that have been used in a variety of products.
PFAS-contaminated soil has been found in several locations around the
state. Governor Janet Mills and state lawmakers set aside $60 million of
a $1.2 billion spending package this year for PFAS relief.
Firefighter Lawsuits
Hundreds
of current and former firefighters are suing manufacturers of AFFF
specialized firefighting foam, which is highly effective at
extinguishing fast-spreading fires. AFFF’s active ingredient is a group
of chemical agents called per- and polyfluoroalkyl substances, commonly
called PFAS. Elevated levels of PFAS were found in the firefighters’
blood late last year, and all have developed cancer or other serious
health problems. Professional Firefighters Associations (PFAs) in
several states, most recently Maryland, are also joining the fight for
statewide PFAS bans. During a virtual news conference, Maryland PFA
member Grant Walker told lawmakers that cancer has surpassed cardiac
events as the number-one cause of death in firefighters over the last
two decades.
AFFF manufacturers have been dealing with
PFAS-related claims for years, not only from firefighters but also from
government entities and private residents exposed to PFAS in soil and
water. In 2017, Chemours and DuPont paid over $670 million in
settlements of toxic exposure lawsuits. In 2018, cases against the foam
producers were consolidated into multidistrict litigation (MDL), which
will all be handled under one South Carolina federal court for
efficiency. There were more than 1,800 cases in the MDL by the end of
2021, with more to come as additional firefighter-plaintiffs continue to
file suit and seek relief.
In Re Aqueous Film-Forming Foams Products Liability Litigation MDL No. 2783 (D.S.C.).
The
Judicial Panel on Multi-District Litigation (JPMDL) ordered the
transfer of all federal lawsuits to the United States Federal Court for
the District of South Carolina. The cases reached the desk of the
Honorable Richard M. Gergel for coordinated discovery and pretrial
matters. As of August 2022, more than 2,700 AFFF plaintiffs were named
in the lawsuit. While this January 2021 settlement resolved claims of
drinking water contamination at one location, over 600 lawsuits alleging
bodily injury and environmental contamination due to per- and
polyfluoroalkyl substances (PFAS) — chemical components of AFFF. The
consolidation comes as a solution to a flood of lawsuits led by various
states, including New York, Massachusetts, Maine, and Florida, as well
as litigation initiated by the Professional Firefighters Association.
The litigation is currently in the discovery phase.
These AFFF
foam lawsuits present a challenge for defense lawyers looking to avoid
billion-dollar settlements for exposure victims. Defendant companies are
generally offering up the “government contractor defense” as a shield
to liability. The government contract doctrine shields companies from
liability for damages from products that meet specific qualifications
needed to achieve military objectives; it is a common law defense based
on the discretionary function exception of the Federal Tort Claims Act
which can be raised in certain products liability cases, especially
based on alleged design defects and failure to warn claims. Proof of the
defense requires the following elements be met: that (1) the United
States approved “reasonably precise specifications” for the product
being supplied; (2) the product conformed to those specifications; and
(3) the supplier warned the United States about dangers in the product
known to them. Boyle v. United Tech. Corp., 487 U.S. 500, 512 (1988).
If
the elements of the defense are met, the defendants can avoid liability
and successfully argue that the government made them engage in the
alleged unlawful conduct. This defense was tested in federal asbestos
litigation, where defense attorneys argued that the U.S. government
required asbestos-containing products in ships and aircraft. But
plaintiffs’ attorneys argued the products were still defective for
failure to meet element 3 of the defense: the product didn’t come with a
warning. AFFF foam suppliers may have a more powerful argument on this
defense, however, because their customers include military and civilian
airports. These customers were required to buy fluorocarbon-based foams
and were even required to discharge it several times a year for training
exercises, using it to fight actual fires. Whether the defense applies
to non-military contracts depends on the jurisdiction and some courts
have held that the defense only applies to cases specifically involving
military equipment. These companies contend that the government not
only approved but enforced the precise qualifications for AFFF. In their
motion for partial summary judgment filed on November 5, 2021, in the
AFFF class action lawsuit in the MDL, the defendants claim that they
were required to use fluorocarbons in the product. Legal analysts
disagree over the prospective ruling on that motion.
Dupont & Chemours Settlement
Cost-Sharing Settlement
In
January 2021, DuPont, Chemours and Corteva announced a cost-sharing
agreement worth $4 billion to settle lawsuits involving the use of
highly toxic PFAS chemicals and firefighting foam. DuPont was the
leading manufacturer of PFAS chemicals in the United States. But due to
increased liability for risks posed by PFAS, Chemours was created in
2015 as a spin off from DuPont’s chemical division, and Corteva was
created as a spin off from DuPont’s agricultural division in 2019.
Chemours sued DuPont in 2019, after being named defendant in many PFAS
lawsuits, claiming that DuPont’s liability estimates were “spectacularly
wrong” and sought indemnification and contribution for PFAS litigation
liability.
Reliable data from environmental working groups
demonstrated that companies like DuPont engaged in decades-long
deception about PFAS. Animal studies conducted by DuPont show that the
company knew or should have known by the 1960s that PFAS chemicals build
up in the blood and pose undeniable risks to human health. DuPont and
Chemours reached a binding memorandum of understanding resolving legal
disputes relating to the 2015 spin off. The agreement established a
cost-sharing arrangement and escrow account, worth more than $1 billion,
for potential future legacy PFAS liabilities arising out of pre-July 1,
2015, conduct. Under the terms of the agreement, expenses will be split
in half, with DuPont and Corteva responsible for 50% and Chemours
responsible for the other 50%. Both companies agreed to share the costs
of certain enumerated expenses over a period of no more than 20 years or
an amount over $4 billion. Facing an uphill battle of state and federal
litigation, other major chemical manufacturing companies like DuPont
will likely engage in similar cost-sharing agreements that may affect
payouts to litigants harmed by their production of PFAS chemicals.
Ohio Settlement
In
February 2018, Ohio Attorney General Mike DeWine sued DuPont and its
spin-off, Chemours Co., for alleged chemical dumping. The action sought
restitution and damages for release of the toxic PFOA chemical from
DuPont’s West Virginia plant into the Ohio River. The lawsuit alleged
that the companies contaminated the natural resources of the state and
put Ohio residents at risk for decades knowing that the chemical likely
caused deleterious environmental and health effects. In January 2021 the
companies agreed to settle pending cases in a multidistrict PFOA
litigation in Ohio for $83 million.