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Judge Rejects Contractor Immunity Defense in 3M Aqueous Film-Forming Foam (AFFF) Lawsuit
3M is facing a host of lawsuits through multi-district litigation (MDL), which allege that 3M’s aqueous film-forming foam (AFFF) contained harmful PFAS chemicals that can lead to serious health problems.
In defense of these claims, 3M argued that it was entitled to government contractor immunity. If successful, this defense would allow 3M to escape liability for public policy reasons.
But on September 16, 2022, the MDL Court denied 3M’s attempt to apply government contractor immunity, paving the way for the first AFFF bellwether trial to take place in June 2023. The Ferraro Law Firm represents those who have been injured by AFFF exposure and we’re pleased with the Court’s decision to reject 3M’s government contractor immunity defense.
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The Government Contractor Immunity Defense
For a government contractor immunity defense to apply, the defendant must show three things:
- The U.S. approved reasonably precise specifications for the product;
- The product conformed to those specifications;
- The supplier warned the U.S. about dangers in the use of the products.
3M’s legal defense team argued that the government’s requirements forced it to use PFAS in its AFFF—and because the defendants provided what the government wanted (and ordered), they can’t now be held liable for any harm resulting from AFFF use.
However, at a hearing on August 19, 2022, the Court disapproved of the government contractor defense, noting that his review of the cited caselaw wouldn’t support this defense in the AFFF litigation. He seemed to focus particularly on what the EPA knew about the harms and hazards of PFAS, and when the EPA knew it.
Although 3M argued that it was up front with hazard and health information, and what the EPA did with this information was up to the U.S. government, the Court concluded that 3M and other defendants provided “pieces of the puzzle” but by no means a “complete picture.”
Ultimately, the Court found that the government’s use of AFFF products didn’t convey government immunity, since the EPA didn’t become aware that AFFF contained harmful PFAS until 2000s. Meanwhile, 3M regularly conducted tests and experiments using AFFF and should have known about—and disclosed—its cancer-causing potential.
Going forward, the Court is likely to focus on the level of knowledge all involved parties had when it came to the use of PFAS in AFFF. And if it’s shown that 3M knew of these harms but didn’t disclose them to the government, it could be liable for compensatory and punitive damages.
What to Know About the AFFF Multi-District Litigation (MDL)
The AFFF MDL includes thousands of lawsuits alleging exposure to or pollution from per- and polyfluoroalkyl substances (PFAS) that are contained in AFFF.
In 2021, three bellwether trials were scheduled for 2023. These bellwether trials are designed to take the most representative cases before a jury, and the outcome of these trials may dictate whether additional claims proceed to trial or the Defendants offer a settlement of the remaining claims. The three bellwether cases selected involve allegations from cities and towns that the PFAS contained in AFFF polluted their public drinking water systems. They seek to hold 3M and other defendants responsible for remediation costs.
If you or a loved one has developed health problems as a result of aqueous film-forming foam, you may be entitled to compensation. At The Ferraro Law Firm, we’re focused on each client’s case and will use all our resources to ensure you have the most robust representation possible. To schedule your free consultation, call 888-554-2030 or just fill out our free case consultation form and a member of our team will soon be in touch.
What is the AFFF lawsuit?
Many people who had been exposed to perfluoroalkyl substances (PFAS) for years filed lawsuits against their manufacturers, claiming that they knew about the health risks associated with these chemicals but continued to sell them anyway. At present, the largest population of people who are affected by exposure to AFFF is ex-military personnel. Other groups at risk include firemen, airport workers, and workers in the chemical industries. Thousands of individuals have filed individual AFFF suits against manufacturers across the country, and some of these cases have been consolidated into an MDL case.
How long has AFFF been used?
It was originally developed in the 1980s for fighting wildfires but has since been adopted by most firefighters in the U.S. to prevent the spread and ignition of a forest fire. AFFF is also used for containing fires in various industrial environments.
Is AFFF foam banned?
3M, one of the largest manufacturers of PFOS (perfluorooctane sulfonate), has already phased out its use of this toxic substance by 2002. Other companies, such as DuPont and Chemours, followed suit in 2006. Though AFFF has been discontinued, it continues to be used by fire stations and other companies across the United States. Because the active ingredients in AFFF don’t degrade in the soil, they’re also faced with the problem of how to properly dispose of expired AFFFs. AFFF manufacturers are currently involved in lawsuits seeking to hold them responsible for causing cancer and other health issues due to their products’ PFAS and PFOA toxicity. Three thousand five hundred fifty-five people sued DuPont and Chemours for damages caused by their toxic chemical called, perfluorooctanoic acid (PFOA), used in making Teflon products. As recently as March 2020, a jury in Ohio awarded $50 million to an employee who was diagnosed with testicular cancer after working at a chemical plant where he had been exposed to AFFF. Plaintiffs allege that their exposure to AFFF has resulted in ulcerative colitis, kidney, bladder, breast, and testicular cancers, kidney cysts, and various other ailments, including non-cancers.