Understanding the Landmark AFFF/PFAS Water District Settlement

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. 

Potential Firefighting Foam Water District Settlement 

On June 2, 2023, Dupont and Chemours announced an AFFF/PFAS proposed class action settlement potentially covering approximately 7,000 public water systems for $1.185 billion, and in July filed a motion seeking MDL Judge Gergel’s preliminary approval for a proposed class action settlement. Three weeks later on June 22nd, 3M announced a similar AFFF/PFAS proposed class action settlement potentially covering a pool of approximately 6,000+ public water systems for a net present value amount of between $10.3 billion and $12.5 billion, to be paid over 13 years. Here too plaintiffs’ counsel and 3M’s counsel filed a motion in July in the MDL seeking Judge Gergel’s preliminary approval of the proposed class action settlement. At an MDL hearing on July 14, 2023, Judge Gergel was told these settlements “are the largest drinking water settlement[s] in history” and that the potential settlement money is on top of “grants” from the federal government available to water entities nearing $10 billion. Gergel emphasized to counsel the potential advantages of the settlement compared with the risks of continuing individual entity litigation and trials in the MDL. The City of Stuart trial has been adjourned and the settlement documents show that the City of Stuart is a specific settling party in the larger settlement document (receiving its own unique but confidential amount).  

The proposed settlements certainly have limitations including the fact that other entity plaintiffs, like State AGs, are not included in the agreement, precise dollar allocations for each water district are not yet known, objectors might seek to derail approval, and if too many water systems opt out the companies could theoretically back out of the agreements; but Judge Gergel said that (1) the standard for preliminary approval of the settlement is “a pretty low threshold”; and (2) such preliminary approval could happen within the next 60 days. A settlement fairness hearing could occur in October or November of 2023. 

These announced settlements are a potential major positive for existing and potential new AFFF and PFAS personal injury claimants, for the following reasons: (1) the settlements potentially move many other “entity” plaintiffs and claimants out of the MDL and into the settlement structure, substantially clearing and opening the way for the personal injury phase of the MDL litigation to move forward more quickly; (2) attorneys for personal injury claimants may move to accelerate timelines after those set forth in Judge Gergel’s May 5, 2023 order, entitled “Second Bellwether Program: Initial Personal Injury Claims,” which provides a general structure and timeframe for selecting bellwether plaintiffs; (3) the settlements give 3M, Dupont and Chemours vital breathing room to get relief from the market pressures they have faced regarding “unquantifiable” PFAS/AFFF liabilities by changing the narrative through the ability to quantify at least some portion of their liabilities.  

Just as important, the companies’ willingness to reach these big dollar settlements right now — not many years down the road after costly multiple “entity” bellwether trials — signals a potential willingness to strike deals at the right price. Accordingly, the door is theoretically open for some type of potential future settlement negotiations regarding certain categories of personal injury claimants — whether primarily victims (firefighters and others) with Leach-study-backed diseases (e.g., kidney cancer, testicular cancer, ulcerative colitis, thyroid disease) or possibly an even broader group of victims with a wider range of cancers and other injuries.  

As the water systems class action settlement works its way towards potential preliminary approval by Judge Gergel, additional court filings and hearings may reveal further information on the personal injury litigation front.