Forever chemicals, scientifically known as per- and polyfluoroalkyl substances (PFAS), have been produced and manufactured in a wide variety of industries since it was first discovered in the 1930s. Litigation and regulatory efforts have been underway for over two decades, arising from the ubiquity and persistence of PFAS and the growing amount of scientific evidence pointing towards PFAS exposure-based health impacts.[1] Characterized by their heat, oil, and water-resistant properties, PFAS are used in products as varied as pizza boxes, make-up, and firefighting foam.[2] The latter has been identified as a potential major source of PFAS contamination in the environment and drinking water–sparking a host of litigation efforts throughout the country.[3]

On September 27, 2018, a federal judicial panel decided to consolidate these cases by creating Multidistrict Litigation (MDL) 2873 set in the United States District Court of South Carolina.[4] MDL-2873 is comprised of over 1800 cases that have common questions of law and fact involving the use of aqueous film-forming foams (AFFFs) and PFAS contamination.[5] These cases generally allege that defendants, mostly major chemical manufacturers, contaminated groundwater with PFAS near various military bases, airports, and other industrial sites with the use of AFFFs.[6] The cases include (i) claims for property damage asserted by water providers, (ii) claims for property damage asserted by property owners, (iii) bodily injury claims, and (iv) claims for medical monitoring for potential future injury.[7] All orders and rulings will apply to all cases apart of MDL-2873, regardless of whether the case was a part of the MDL when then orders are entered.[8]

There are three broad categories of defendants, including foam manufacturers, other private companies, and governmental entities.[9] Common defendants for many of the cases involve chemical manufacturers, including 3M Co. and Tyco Fire Products.[10] Governmental entities include the United States of America and the U.S. Air Force.[11] The third category is comprised of smaller private companies who appear in only a small handful of cases.[12] Plaintiffs range from private citizens to governmental entities.[13]

Ten bellwether water provider cases, which were jointly selected by the parties, have proceeded from “Core” discovery into the final discovery stages in advance of trial.[14] The Judge for MDL-2873 has explained that, if the water provider claims cannot survive, he does not see how other claims could, either.[15] The Judge has also contemplated that the water provider cases might have a bigger impact on public health than the other varieties of cases.[16] One of the key issues in Core discovery has been the government contractor defense, which immunizes government contractors who produce certain products pursuant to government specifications.[17] The Judge hopes to make clear decisions on the contractor defense and the water provider cases first as their outcomes will have large ripple effects throughout the MDL.[18] The parties wrapped up briefings for the government contractor defense in October 2021 and a ruling should be expected soon.[19]

Plaintiffs are still joining this MDL and over 600 cases were added in 2021.[20] Those pursuing PFAS contamination suits should look to join the MDL as the proceedings which are already underway effectively shaves off two years to settlement or trial verdict.[21] New suits filed independently outside the MDL could take 3-5 years to settle or resolve at trial, potentially even longer in jurisdictions hit hard by pandemic closures.[22] Joining the MDL is likely one of the faster routes to seeking damages to a water system if it has been polluted by AFFF.[23]

One of the major takeaways from the PFAS AFFF MDL is that PFAS litigation against manufacturers is only likely to increase.[24] Plaintiffs are likely to pursue litigation against new companies and products in new industries expanding beyond AFFFs using legal theories adopted in the MDL.[25] As the first major nationwide PFAS litigation, MDL-2873 will set a major precedent for all future PFAS litigation. Legal practitioners and scholars around the nation watch the slow-moving, monolith MDL with interest–but given the multiyear discovery stage–not bated breath.

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[1] Sheila Brinbaum, PFAS: Expected Litigation Trends, JDSupra, https://www.jdsupra.com/legalnews/pfas-expected-litigation-trends-5029047/ (last visited Dec. 2, 2021).

[2] Id.

[3] Id.

[4] United States District Court of South Carolina, Aqueous Film-Forming Foams (AFFF) Products Liability Litigation, https://www.scd.uscourts.gov/mdl-2873/index.asp (last visited Dec. 2, 2021).

[5] Ronald Miller, Mass Torts to Watch in 2022, Miller & Ziller (Dec. 1, 2021),  https://www.lawsuit-information-center.com/mass-torts-to-watch-in-2022.html.

[6] Gregory S. Capps and Lynndon K. Groff, MDL for Claims Against Manufacturers, White and Williams (June 3, 2021), https://www.whiteandwilliams.com/resources-alerts-MDL-for-Claims-Against-Manufacturers-and-Distributors-of-PFAS-Containing-AFFFs-Focuses-Attention-on-Key-Issues.html.

[7] Id.

[8] United States District Court of South Carolina, In Re: AFFF Products Liability Litigation Case Management Order 1 (Jan. 2, 2019), https://www.scd.uscourts.gov/mdl-2873/orders/CMO%201.pdf.

[9] United States District Court of South Carolina, Status Conference Transcript, 10-11 (Mar. 4, 2019), https://www.scd.uscourts.gov/mdl-2873/transcript/19-02-25%20AFFF.pdf.

[10] Id.

[11] Id. at 18.

[12] Id. at 10-11.

[13] Id.

[14] Capps, supra note 5.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Ashley Campbell, Legal Corner: Water systems contaminated with PFAS seek compensation through multidistrict litigation, Water Fin. & Mgmt. (Aug. 9, 2021), https://waterfm.com/legal-corner-water-systems-contaminated-with-pfas-seek-compensation-through-multidistrict-litigation/.

[21] Id.

[22] Id.

[23] Id.

[24] Brinbaum, supra note 1.

[25] Id.