First US Trial Over PFAS Injuries to Focus on Kidney Cancer

The first bellwether personal injury trial in a nationwide proceeding over damages from PFAS in specialized firefighting foam will focus on kidney cancer, the court managing the multidistrict case litigation ordered Friday.

“Limiting the first bellwether trial to kidney cancer would assist the jury in acquiring an in depth understanding of the nature of the disease and whether exposure to AFFF proximately caused the injuries asserted by plaintiffs,” wrote Judge Richard M. Gergel with the US District Court for the District of South Carolina.

The trial, set for Oct. 20, could include up to three individuals who claim their exposure to per- and polyfluoroalkyl substances (PFAS) in aqueous film-forming foams (AFFF) caused their cancer.

Attorneys representing the defendants asked the court to limit the first trial to a single case and one disease. Plaintiffs’ attorneys proposed up to five cases and two diseases: kidney and testicular cancer.

Plaintiffs from two Pennsylvania towns where drinking water was contaminated by AFFF seek damages from companies including the 3M Co., BASF Corp.'s Ciba Specialty Chemicals, E.I. du Pont de Nemours and Co., and Arkema Inc., that have either produced PFAS or firefighting foams containing the highly persistent chemicals associated with varied illnesses.

The 3M Co. and E.I. du Pont-related manufacturers previously reached multibillion dollar settlements prior to trials in a separate category of cases brought by water utilities dealing with drinking water sources contaminated by AFFF.

Proving an individual’s disease likely resulted from that person’s exposure to certain PFAS requires more information, however, than proving that the chemicals produced by relatively few companies were present in water.

Potential Jury Confusion

In his efforts to manage the nearly 10,000 personal injury cases that are part of the Aqueous Film-Forming Foams Products Liability Litigation MDL 2873, Gergel has established three batches of cases involving different illnesses.

Pennsylvania plaintiffs with kidney and testicular cancer were in the first batch of personal injury cases that could have come to trial. The plaintiffs have lived near the former Naval Air Station Joint Reserve Base Willow Grove in Horsham, Pa., and adjacent Warminster Naval Air Weapons Center in Warminster, Pa. and maintain their illnesses resulted from drinking water contaminated by the AFFF the bases released.

“The court declines to include testicular cancer in the first bellwether trial to avoid the likely risk of jury confusion,” Gergel wrote, agreeing with a concern defendants’ attorneys raised about combining multiple diseases and individual claims before the jury.

The trial may focus on up to three individuals with kidney cancer as plaintiffs suggested on May 6, Gergel’s order said. But he asked the plaintiffs to list their first, second, and third choices of individual cases should he decide the trial should focus on a single lawsuit.

Defendants’ attorneys recommended the trial focus on a single person’s claims as the three kidney cancer lawsuits include varied durations and ways people were exposed to PFAS in the firefighting foam, different products, and disparate companies. “These different facts make it a certainty that a multi-plaintiff trial would be materially longer than a single-plaintiff one and would present a significant risk of jury confusion,” their motion said.

Plaintiffs’ motion anticipated differences among the individuals would be raised as a reason not to combine the cases, and said: “these individual differences are neither surprising nor do they make the cases inappropriate for consolidation. If these arguments were to be accepted, there is no circumstance under which individual product liability personal injury cases could ever be consolidated.”

While these cases proceed, Gergel is laying the scientific foundation for future trials involving other diseases alleged to result from the types of PFAS used in the firefighting foam. The court will host a science day on June 20 where Gergel will hear from and question scientists about the studies associating the chemicals with liver and thyroid cancers.

The case is Aqueous Film-Forming Foams Products Liability Litigation MDL 2873, D.S.C., No. 18-02873, 5/9/25.