Adding to the growing number of mass tort litigation cases in process in the federal district courts, the Judicial Panel on Multidistrict Litigation (JPMDL) ordered the transfer of a number of Aqueous Film-Forming Foam (AFFF) cases to the United States District Court in South Carolina as MDL-2873. The transferred cases allege injuries or damages caused by the chemicals found in AFFF, chemicals used at airports and military bases to extinguish Class B fuel fires.

Within two years of the creation of MDL 2873, New York firefighters filed their class action suit related to injuries from AFFF in the United States District Court for the Eastern District of New York. Here’s what you should know about the litigation.

What is Aqueous Film-Forming Foam?

AFFF contains toxic chemicals known as perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). PFOS and PFOA are fluorosurfactants that repel oil, grease, and water. As ingredients in AFFF, the chemicals help firefighters extinguish fuel fires from gasoline, kerosene, cooking oils, or paint.

PFOS and PFOA live on indefinitely in the environment. They are toxic to humans, animals, and other organisms. The chemicals accumulate in the bloodstream, kidneys, and liver through consumption, absorption, ingestion and inhalation. They also commingle in groundwater.

AFFF does not appear naturally in the environment. It is manufactured by humans.

When Did Manufacturers Know About AFFF’s Dangerous Properties?

In 1947, 3M started its fluorochemical business. 3M and the other defendants designed, manufactured, marketed, and distributed AFFF from the 1960s up to the present time.

Claimants assert that by the 1970s, 3M and Dupont knew about the dangerous impacts of PFOS and PFOA. The claims state that the defendants knew the toxic chemicals impacted the environment when used for fire protection, fire training and fire response, even when the product was used as directed and as intended. In the 1970s and 1980s, 3M’s own tests showed its toxicity in the environment as well as the toxic levels found in the bodies of workers. They concealed this knowledge from the public and the Environmental Protection Agency (EPA).

The plaintiffs argue that the defendants knew the users of AFFF were at risk to develop serious medical conditions as a result of their use, consumption, inhalation, ingestion or absorption through the skin. The plaintiffs also argue that the defendants’ warnings and instructions for use were inadequate.

What Are the Deleterious Health Effects Associated with AFFF?

Plaintiffs claim the following serious health problems from exposure to AFFF:

  • Kidney cancer
  • Thyroid disease
  • Testicular cancer
  • Liver problems
  • Preeclampsia
  • Sarcoidosis and other autoimmune diseases
  • Ulcerative colitis

These adverse health effects can appear months or even years after AFFF exposure.

What Was the Foam Class Action Lawsuit About?

At least 100 New York firefighters filed the Gentile v. 3M et al case in May 2020. Lead plaintiff, Gentile, is a New York firefighter who worked from 1998 to the present day. His diagnosis is testicular cancer that he claims is a result of AFFF exposure. The case includes four causes of action:

  • Negligence
  • Failure to warn
  • Defective design
  • Medical monitoring for those plaintiffs who may yet develop serious diseases

The plaintiffs demand $5 million in damages, not including interest and court costs, and request punitive damages. Given the number of firefighters in New York State, court observers anticipate that the plaintiff class could grow into the thousands.

Who Are the Defendants in the Class Action Case?

The defendants in the Gentile case include, among others:

  • 3M Company
  • Buckeye Fire Equipment
  • Chemguard, Inc.
  • Tyco Fire Products
  • National Foam
  • Angus International Safety Group, Ltd.
  • Angus Fire Armour Corporation
  • Kidde-Fenwal, Inc.
  • Kidde PLC, Inc.
  • UTC Fire & Security Americas Corp.
  • United Technologies Corp.
  • Chubb Fire Ltd.
  • Fire Service Plus, Inc.
  • DowDupont, Inc.

What Was the Timeline for the AFFF MDL?

On December 7, 2018, the JPMDL issued the order to consolidate for pre-trial discovery purposes 75 product liability cases. Claimants exposed to AFFF filed against 3M in eight federal district courts. JPMDL transferred the cases to the United District Court in South Carolina as MDL 2873. MDL 2873 currently comprises 500 cases and is expected to increase in size.

On December 18, 2019, JPMDL denied 3M’s request to transfer the Middlesex Water Co v 3M et al case from the District of New Jersey to MDL 2873. In denying the requested transfer, JPMDL reasoned that the Middlesex case does not involve allegations pertaining to AFFF exposure and, therefore, would broaden the scope of MDL 2873 beyond its current purview.

On June 19, 2020, the JPMDL issued the transfer order to consolidate the Gentile case into MDL 2873 for pre-trial discovery purposes under the supervision of Judge Richard M. Gergel.

Interested in Joining MDL 2873?

MDL 2873 is ongoing in the United States District Court in South Carolina under Judge Gergel.  If your firm is interested in finding clients to join MDL 2873, you must perform intake on a massive scale and qualify and convert quality leads. The most affordable and efficient way to do this is to outsource that massive intake project to a legal intake call center.

Alert Communications features customizable intake procedures that qualify and convert leads, eliminating wasted law firm staff time spent on unqualified leads. To find out how Alert Communications can help your company with intake for leads for MDL 2873, contact us!