The court in the aqueous film-forming foams (“AFFF”) multidistrict litigation recently established a bellwether process to address personal injury claims alleging that polyfluoroalkyl substances (PFAS) in AFFF caused thyroid and liver cancer. The personal injury bellwether processes in the AFFF MDL now encompass claims for kidney cancer, testicular cancer, hypothyroidism/thyroid disease, ulcerative colitis, thyroid cancer and liver cancer.

Background

In December 2018, the Judicial Panel on Multidistrict Litigation centralized in the United States District Court for the District of South Carolina approximately 90 civil actions from eight U.S. District Courts involving claims that aqueous film-forming foams (“AFFF”) containing certain per- and polyfluoroalkyl substances (PFAS), including perfluorooctane sulfonate (PFOS) and/or perfluorooctanoic acid (PFOA), had contaminated local ground and drinking water. (In re Aqueous Film-Forming Foams Prods. Liab. Litig., 357 F. Supp. 3d 1391, 1394 (JPML 2018) ). Since that time, more than 7,000 cases have been added from U.S. District Courts throughout the country.

Over $13 billion in settlements with public water systems have been approved. A further $750 million settlement with public water systems was recently announced and is pending approval. However, claims relating to personal injuries allegedly caused by exposure to AFFF and/or PFAS are ongoing and extend to other alleged routes of exposure, such as through PFAS in firefighting gear.

Personal Injury Bellwethers

The personal injury claims involve over 200 different injuries. These injuries include those addressed in Leach, a prior PFAS class action against one of the defendants in the AFFF MDL (kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, pre-eclampsia and high cholesterol), and other types of cancer. The court in charge of the AFFF MDL has established two bellwether (test case) proceedings to address certain of these injuries.

The first bellwether process addresses cases known as the “Limited-Leach Injury Bellwether Cases,” in which the plaintiffs assert that exposure to PFAS from an AFFF source in drinking water caused one of four diseases: kidney cancer, testicular cancer, hypothyroidism/thyroid disease and ulcerative colitis. The parties agreed on, and are completing the first phase of discovery in, 25 qualified cases. The second phase will encompass selecting the trial case finalists, expert reports and discovery, dispositive motion timetables, and trial dates.

In March and April 2024, the court established a second bellwether process for claims that exposure to PFAS from an AFFF source caused liver or thyroid cancer. The parties are currently exchanging peer-reviewed studies that dispute or allegedly support an association between AFFF/PFAS and these additional diseases. Thereafter, the court will conduct a “Science Day” to allow the parties to present a limited number of experts on causation. After the “Science Day,” the parties must meet and confer to select bellwether cases and develop a process for Daubert and dispositive motions. Plaintiffs may dismiss without prejudice claims that allege injury from AFFF exposure but that do not involve the above-identified injuries, subject to tolling of the statute of limitations and later refiling in the MDL, or they must proceed with discovery on an accelerated timetable.

The result of the trials in the bellwether cases will not necessarily be binding on other cases, but the court’s decisions on common issues (Daubert and dispositive motions) will be influential, and any jury verdicts will be instructive.

Looking Ahead

The combined personal injury bellwether proceedings will not resolve all of the personal injury claims allegedly arising from AFFF/PFAS exposure. For example, discovery is ongoing against defendants alleged to have manufactured PFAS-containing firefighting gear. Additionally, the terms of the orders establishing the bellwether proceedings do not address co-defendants in multi-exposed cases who are not alleged to have supplied any AFFF/PFAS products, but have been pulled into the MDL. Since claims are continually being added to the MDL, it is likely that additional bellwether proceedings or other procedures for addressing common claims will be instituted in the future.

Harris Beach’s New York Mass Torts and Industry-Wide Litigation attorneys are closely watching this and similar cases. Should you have questions or need their services, please contact Abbie Eliasberg Fuchs at (212) 313-5408 and afuchs@harrisbeach.com; attorney Laura W. Smalley at (585) 419-8736 and lsmalley@harrisbeach.com; Daniel R. Strecker at (212) 912-3513 and dstrecker@harrisbeach.com; or the Harris Beach attorney with whom you most frequently work.

This alert does not purport to be a substitute for advice of counsel on specific matters.
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