Thousands of individual lawsuits have been consolidated into multidistrict litigation (MDL) against the corporations that make aqueous film forming foam (AFFF), a type of firefighting foam that was filled with per- and poly-fluoroalkyl substances (PFAS), synthetic chemicals that are now known to be dangerous to human health.

Here are 8 things that you should know about the AFFF firefighting foam lawsuits, according to mass tort lawyer Dr. Nick Oberheiden.

1. AFFF Caused Lots of Chemical Contamination

AFFF is one of the types of foam that firefighters use to put out flames. There are two classes of AFFF firefighting foam:

1. Class A, which is used for combustible fires, like for wood or paper
2. Class B, which is used for ignitable liquids like oil, gas, or jet fuel

Class A firefighting foams rely primarily on the water in the foam to put out the flames, though they are still substantially more effective than just using straight water. They have far fewer chemicals in them and are used more often than Class B foams.

Of Class B foams, there are two types:

1. Foams that have fluorine in them
2. Foams that do not have fluorine in them

Both foams work the same basic way: By blanketing flammable liquids, they prevent the fuel from catching fire and extinguish any lit fuels by suffocating the flames of the oxygen that they need in order to keep burning. This works far better than water for these types of fires, as the flaming liquids are lighter than water and would float on its surface and continue to burn.

AFFF, however, is a fluorinated type of foam. That fluorine comes in the form of a PFAS compound. There are hundreds of types of these compounds, but they are all based on one of the strongest chemical bonds in organic chemistry; the one between fluorine and carbon.

2. PFAS Chemicals are Everywhere

While PFAS chemicals have been used in firefighting foam since the 1970s, when the U.S. Navy worked in collaboration with the giant chemical corporation 3M to produce a foam that could quickly put out fires on vessels, PFAS compounds have been used in a wide variety of other capacities since the 1940s. A very versatile chemical compound, PFAS chemicals were used to:

• Prevent or remove stains
• Suppress or resist heat
• Waterproof materials or make them water resistant
• Contain grease or oil

As a result, PFAS chemicals have been added to a huge array of consumer products that span nearly every industry, including:

• Food packaging and wrapping
• Pizza boxes
• Raincoats
• Water resistant clothing and shoes
• Non-stick cookware
• Carpeting
• Paint
• Wood stain, varnish, and lacquer

In recent decades, though, researchers have noticed that the sheer ubiquity of these chemicals could pose a threat: The carbon-fluorine bond that these synthetic compounds are based on does not break down naturally, leading to PFAS being dubbed “forever chemicals.” Every piece of PFAS that is produced will continue to be a PFAS until something is done to break it down artificially, like putting the chemical into water and then superheating the water well past its boiling point.

3. PFAS Chemicals are Dangerous

It was not until relatively recently that the public learned two things about these PFAS chemicals:

1. They had contaminated soil and groundwater across the country, and
2. They were connected to numerous different medical conditions, including several types of cancers.

The strong chemical bond between carbon and fluorine that was fundamental to PFAS meant that, as it was used or disposed of, it would not break down. Instead, PFAS chemicals would just build up in the soil where they were dumped or would contaminate the groundwater in that soil. Eventually, PFAS chemicals found their way into drinking water and water for crops and animals. From there, it got into the food system.

It was not until the 2000s that this became apparent to the public. By then, there had been nearly 60 years of PFAS buildup.

Around this time, medical researchers also discovered that exposure to PFAS chemicals could lead to PFAS contamination in the bloodstream, which could cause a host of serious medical conditions. While research is still being done to find out what, exactly, PFAS chemicals does in the human body and which medical conditions it can cause, PFAS contamination has been linked to increased risks for:

• Pregnancy issues, including:
  • Fetal death
  • Birth deformities
  • Hypertension
  • Preeclampsia
  • Low birth weight
  • Developmental delays in young children
• Liver damage
• Liver cancer
• Testicular cancer
• Thyroid cancer
• Kidney cancer
• Prostate cancer
• Fertility problems
• A dysfunctional immune system, including decreased effectiveness of vaccines
• Hormonal imbalances
• Obesity
• High cholesterol

These are some serious medical conditions that could end up being fatal. Anyone who was exposed to PFAS chemicals, including those in AFFF, are at risk of developing them and can talk to an AFFF lawyer about filing an AFFF firefighting foam lawsuit.

4. These Cases Involve Yet Another Corporate Cover-Up

As lawsuits over PFAS exposure started to get filed in the 2000s, it quickly became clear that the large corporations who had filled our world with PFAS-heavy products had long known the risks associated with them.

PFAS manufacturer DuPont, one of the largest chemical producers on the planet, instructed its workers to only handle PFAS chemicals with extreme care as early as 1961. PFAS manufacturer 3M had discovered that the company’s PFAS chemicals were inside fish that swam in the water near one of its plants in the 1970s. In the 1980s, DuPont suddenly moved all of its female employees out of the production facility that handled PFAS chemicals – several female DuPont employees in the facility had given birth to children with serious deformities.

In spite of these warning signs, these major corporations continued to dispose of PFAS materials however they wanted to – whether that meant dumping it into the water, burying it in the ground, or burning it into the air. They also continued making new products with PFAS chemicals in them, including AFFF firefighting foam in the 1970s, which was then used by military and civilian firefighters both to put out real fuel fires and to train in putting them out. This continued for three decades, with firefighters pumping PFAS-heavy foam onto airport tarmacs and training areas on military bases across the country, deeply contaminating the soil and nearby waterways and exposing the firefighters to dangerous amounts of PFAS chemicals.

The corporate cover-up would have continued, if it were not for two things. First, in 1998, the U.S. Environmental Protection Agency (EPA) learning of an internal study at one of the major PFAS manufacturers that had found that the offspring of pregnant lab rats who had been exposed to PFAS chemicals were almost guaranteed to die within days. Second, the first class action against the PFAS manufacturer Chemours reached a temporary settlement for $71 million and funding for the C8 Science Panel to research the dangers posed by PFAS chemicals. When the Panel started to publish its findings, Chemours quickly settled the case permanently for $671 million.

5. Other PFAS Lawsuits Have Recovered Billions, and That is Just for Clean Up 

Since that first class action settled, many, many more lawsuits have been filed over PFAS contamination. These lawsuits have targeted the major corporations that have manufactured PFAS products, including:

• 3M
• DuPont
• Chemours
• BAFS

All told, these MDLs and class actions have settled for over $11 billion. There are two things about these PFAS lawsuits are important to know:

1. They are confined to compensating for cleanup and decontamination costs, and
2. They apply to general PFAS products, not specifically to AFFF.

This first point is crucial. The plaintiffs in these huge lawsuits have been water districts that have demanded compensation for the costs of upgrading their filtration equipment and the decontamination of their water and soil. None of the $11 billion is earmarked for the inevitable medical conditions that all of that prior PFAS contamination will cause.

6. AFFF Firefighting Foam: Class Action or MDL? AFFF Lawsuits the First to Allege Personal Injuries and Losses

Now, though, an AFFF firefighting foam MDL includes personal injury claims for medical and financial losses by victims of AFFF exposure for the first time. So you have time to file an AFFF lawsuit and join the MDL.

MDL No. 2873 consolidated hundreds of these AFFF firefighting foam cases in the U.S. District Court for South Carolina in January, 2019. This MDL covers individual victims who have suffered from one of the medical conditions associated with PFAS exposure, who need medical monitoring after being exposed to the chemicals, or who have suffered a financial loss for the diminution in the value of their property due to PFAS contamination. The cases are limited to PFAS exposure from contaminated groundwater near military bases, airports, and other industrial sites due to the use of AFFF that contain either of the two main types of PFAS chemicals used in AFFF:

1. Perfluorooctanoic acid (PFOA)
2. Perfluorooctane sulfonate (PFOS)

When it was first consolidated into an MDL, there were around 500 cases. Since then, it has exploded to over 9,000 claims by July, 2024, with much of the growth coming in recent months.

7. Status and Future of the AFFF MDL

MDLs like this one have become the preferred way to handle mass tort situations: Cases where the misconduct of one or a small handful of companies have led to hundreds or thousands of people suffering in similar or identical ways. By consolidating all of the cases together for pre-trial procedures, like the gathering of evidence and summary judgment motions, the cases can move forward far more efficiently than if they were all on their own.

Even though the MDL was formed over two years ago now, the AFFF litigation is still in its early stages. The defendant corporations, all of whom manufactured and sold AFFF firefighting foams, will advance numerous legal defenses to avoid accountability for their conduct or to at least mitigate the damage of a judgment or the amount of a settlement. Some of the defenses that we will likely hear are:

• The medical condition a particular person suffered was caused by something else
• Some other AFFF manufacturer was responsible for a particular area of contamination
• Plaintiffs waited too long to file their claims and the statute of limitations has expired
• The company’s version of AFFF has less PFAS chemicals in it than others

In the meantime, a growing body of medical literature is connecting PFAS exposure and contamination to serious medical issues. We may even see new medical conditions getting linked to AFFF and the toxic chemicals in it.

As evidence is gathered, settlement talks will begin. If these prove to be fruitless, the court will schedule bellwether trials. These are individual cases that are representative of the rest of the cases in the MDL that are brought through a jury trial. The outcome of those trials are then used to inform further settlement discussions, which nearly always resolve the MDL outside of the courtroom.

8. How This Will Likely End

PFAS lawsuits have been equated to the Big Tobacco Settlement, when cigarette companies settled a class action against them for huge sums. In both cases, the large corporations knew that the products that they were selling were likely to cause life-threatening medical conditions, but continued to sell them and took affirmative actions to cover up evidence that there was any risk.

In the end, though, the most important factor will be the solvency of the defendant corporations that make AFFF. Some of them are substantially larger than others and will be better able to pay the huge settlements that we are likely to see. According to mass tort lawyer Dr. Nick Oberheiden, founding partner of the national law firm Oberheiden P.C. and leading attorney on AFFF cases, “As evidence is gathered, it will become more and more clear what the defendant corporations owe. If they are not able to pay it, they are more likely to extend this MDL to the bellwether trial stage in a risky attempt to avoid settling and try to beat it, altogether. Another option that they would have in this situation is to file for bankruptcy and create a victim’s trust fund, much like asbestos companies did in order to resolve the class action against them for causing mesothelioma.”

Oberheiden P.C. © 2024 by: Dr. Nick Oberheiden of Oberheiden P.C. For more news on Aqueous Film Forming Foam Litigation, visit the NLR Health Law & Managed Care  section.