Understanding the Landmark AFFF/PFAS Water District Settlement

Daniela P on October 19, 2023

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.

Recent Advances in PFAS/AFFF Litigation and 3M Earplug Settlements

Michael S on August 30, 2023

Advancements in PFAS/AFFF and 3M Earplug Legal Proceedings

Significant legal developments have transpired in connection with the ongoing PFAS/AFFF litigation and related personal injury claims, indicating progress towards resolving several complex legal disputes.

Key Points:

Preliminary Settlement Approvals: Courts have granted preliminary approval for two significant settlements involving PFAS/AFFF personal injury claims with major corporations including 3M, Dupont/Chemours/Corteva, and Public Water Systems.
Settlement Scheduling: Judge Gergel has scheduled final approval hearings for the Dupont-related settlement on December 14, 2023, and for the 3M settlement on February 2, 2024, moving the litigation process forward.
3M Earplug Compensation Agreement: 3M has agreed to a substantial settlement, ranging between $5.5 to $6 billion, to compensate victims who suffered hearing loss or tinnitus due to the company’s defective earplugs, with a payment schedule spanning over five years.
Impact on 3M’s Financial Outlook: The settlements are expected to provide a clearer path for 3M in resolving its extensive PFAS/AFFF personal injury claims, potentially stabilizing the company’s stock price and credit ratings.
Bellwether Trial Program Amendments: Adjustments have been made to the schedule and process for selecting Initial Personal Injury Bellwether Discovery Pool Plaintiffs, with detailed steps outlined for the selection and discovery process leading up to the trials, ensuring a structured approach to these complex cases.

On August 22, the presiding judge of the Multi-District Litigation (MDL), Judge Gergel, overcame multiple objections to provisionally sanction the settlement proposal between Dupont/Chemours/Corteva and Public Water Systems (PWS). He has scheduled a hearing on December 14, 2023, to consider final approval of this accord.

In a subsequent move on August 29, Judge Gergel granted preliminary approval to a settlement between 3M and PWS after revisions that addressed concerns raised by state attorney generals. A final judgment on this settlement is anticipated at a hearing slated for February 2, 2024.

These orders align with Judge Gergel’s prior comments emphasizing the benefits of settlement agreements in judicial efficiency and the protracted timelines for dissenting parties to receive court consideration.

Additionally, a noteworthy settlement was publicized on August 29, 2023, when 3M agreed to a compensation package valued between $5.5 to $6 billion over a five-year period for plaintiffs affected by the company’s defective earplugs. This settlement follows extensive litigation, including 16 bellwether trials and the dismissal of an Aearo bankruptcy filing deemed to be improperly purposed. Judge Rodgers of the MDL has described the settlement as equitable and has facilitated the publication of details and the administrative roadmap on a dedicated website [https://www.flnd.uscourts.gov/3m-products-liability-litigation-mdl-no-2885], urging involved law firms and claimants to adhere to strict claim submission deadlines.

This settlement is anticipated to positively affect 3M’s financial outlook by potentially resolving one of its major litigation exposures, thereby providing a clearer trajectory for addressing the multitude of PFAS/AFFF personal injury claims.

Updates on the 3M PWS Settlement Agreement and further developments regarding 3M, Dupont/Chemours/Corteva, and PFAS/AFFF litigation will continue to be provided.

LEGAL UPDATE 10.02.23: Revision of Initial Personal Injury Bellwether Trial Schedule

Judge Gergel has released Case Management Order 26A, which amends the schedule for the selection of Initial Personal Injury Bellwether Discovery Pool Plaintiffs, as initially outlined in CMO 26. The exchange and agreement on the selection of proposed Plaintiffs by the parties are now due by November 14. If consensus is not achieved by November 17, alternative selections will be proposed.

By December 1, the parties are required to submit a definitive list of selected or proposed cases, complete with a synopsis of injuries and exposure locations. Disputes over plaintiff representation must also be articulated. From these submissions, Judge Gergel will appoint the 28 Initial Personal Injury Bellwether Discovery Pool Plaintiffs.

The parties are also instructed to confer on the “Personal Injury Tier 1 Discovery” process, aiming to present a unified Discovery Order to the Court by December 1, 2023. This follows the foundational CMO 26, which set forth the parameters for selecting Bellwether Trial Pool Plaintiffs, including specific disease categories and exposure criteria linked to designated military bases.

Counsel for the Plaintiffs has been tasked with selecting 28 Bellwether Discovery Pool Plaintiffs from specified disease categories, adhering to stringent exposure and claim criteria.

The last segment of CMO 26 addresses the need for parties to establish a procedure for managing personal injury claims outside the CMO’s scope, a matter that remains pending further legal documentation and clarification.

Potential Firefighting Foam Water District Settlement

lawsuitsorg on July 26, 2023

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 22^nd, 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.

Navigating the Legal Tides: Understanding the Landmark AFFF/PFAS Water District Settlement

Michael S on July 26, 2023

Unpacking the Monumental AFFF/PFAS Water District Settlements

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:

Key Points:

Dupont and Chemours proposed a class action settlement for $1.185 billion affecting around 7,000 public water systems.
3M announced a settlement with a net present value of $10.3 to $12.5 billion over 13 years for over 6,000 water systems.
Judge Gergel acknowledged these as potentially the largest drinking water settlements in history.
Settlements present a significant step forward for AFFF and PFAS personal injury claimants.
Future settlement negotiations may extend to a broader group of victims with PFAS-related diseases.

Legal Implications for Public Water Systems

The legal environment for entities involved in the management of public water systems has been significantly altered due to the proposed settlements announced by DuPont, Chemours, and 3M. These agreements represent not just financial compensation for the alleged contamination of drinking water but also signal a shift in how companies address massive environmental tort claims.

DuPont and Chemours Settlement

The settlement proposed by DuPont and Chemours offers a substantial sum, potentially benefiting thousands of public water systems. While the amount is notable, the allocation of these funds across the various districts remains unclear. Moreover, the settlements are not without their limitations; for instance, they exclude state attorneys general and other entity plaintiffs. Despite these constraints, Judge Gergel has pointed out that the standard for preliminary approval is relatively low, suggesting that the process may progress swiftly, with a fairness hearing expected to occur by late 2023[^1].

3M Settlement

Similarly, 3M’s proposed settlement introduces a complex funding structure to be disbursed over more than a decade. This prolonged payment period adds a layer of complexity to the financial management and planning for public water systems seeking remediation and preventative measures against PFAS contamination[^2].

Potential Impact on Individual Entity Litigation

Judge Gergel’s indication that the settlements could have advantages over continuing individual litigation reflects a broader legal tendency to favor collective resolution in mass tort cases. This preference is underscored by the potential for quicker resolution and the distribution of settlement funds to address pressing contamination concerns[^3].

Implications for Personal Injury Claimants

The settlements carve a path for personal injury claimants within the MDL (multidistrict litigation) to move forward, potentially expediting their claims. It also allows companies like 3M, DuPont, and Chemours to better manage market pressures by quantifying liabilities, potentially improving their financial narratives[^4].

The settlements may also open avenues for future negotiations regarding personal injury claimants, particularly those with conditions supported by studies linking PFAS exposure to certain diseases. This suggests a legal landscape that is becoming more receptive to substantial compensation for victims of environmental contamination[^5].

Looking Forward

As these proposed settlements move toward preliminary approval, the legal community, particularly those representing personal injury claimants, is closely monitoring court filings and hearings for additional details that may influence the litigation’s trajectory.

Conclusion

These settlements are groundbreaking not only in their scale but also in their potential to set precedents for environmental litigation and corporate accountability. While the legal process is far from over, the proposed resolutions reflect a notable shift in addressing the liabilities associated with PFAS contamination and the rights of those affected.