Groundbreaking AFFF/PFAS Settlements Redefine Water Safety Litigation

In recent legal developments, the potential settlements involving AFFF (aqueous film-forming foam) and PFAS (perfluoroalkyl and polyfluoroalkyl substances) have marked a significant turn in environmental and public health litigation. With DuPont, Chemours, and 3M reaching monumental, proposed class action settlements, the legal implications for public water systems and potential personal injury claimants are substantial.

Below are key points and a closer discussion on the legal ramifications of these developments: 

Five Key Points: 

  • The Sixth Circuit panel expressed skepticism about a lawsuit against 3M and DuPont, among others, regarding PFAS in Ohio. 
  • The potential class could encompass as many as 11.8 million Ohioans exposed to PFAS. 
  • The lead plaintiff, Kevin Hardwick, seeks medical monitoring and a panel to study the effects of PFAS on humans. 
  • The case could have wide-ranging implications for other chemical-exposure lawsuits. 
  • There concerns expressed by the court were two-fold (1) the accuracy of detecting PFAS levels and (2) the financial implications of the lawsuit for the defendants. 

The lawsuit stems from the contention that 10 chemical companies are responsible for the presence of PFAS in the bloodstream of the lead plaintiff, Kevin Hardwick. He has subsequently moved to have the companies pay for a panel of scientists to investigate the effects of PFAS on the human body and for medical monitoring of class members at increased risk of illnesses, such as cancer.  

The case is unique and is being closely monitored due to its potential ramifications for other PFAS and chemical-exposure lawsuits. Notably, there’s a debate about whether the lawsuit was filed with appropriate due diligence. Judge Raymond M. Kethledge expressed concerns, suggesting that the lawsuit might have been initiated before comprehensive research was done. This perspective might affect the case’s standing, given the emphasis on ensuring that legal processes are built on robust foundations. 

From a financial standpoint, this case could impose a significant burden on the defendants. If the class is certified, the initial study and science panel might cost tens of millions of dollars. Further, the defendants might be liable for in excess of $10 billion. 

While the case predominantly focuses on PFAS in Ohio, it paints a broader picture of the evolving legal landscape surrounding chemical exposure. In such legal endeavors, defining causality, tracing harms to specific defendants, and quantifying the impact on victims are notoriously complex issues. 

As the case unfolds, its implications for claimants, the chemical industry, and the broader legal system will become clearer. It underscores the importance of due diligence, robust evidence, and the potential financial implications of mass torts. For the time being, it stands as a testament to the power of litigation in shaping industry practices and advocating for victims of chemical exposure.