PFAS Legal Liability Risks and Burdens Point to More Settlements

The number of companies weighing possible PFAS settlements in a nationwide case is likely to grow as a federal court moves into the next phases of litigation.

The first group of lawsuits to move through In Re Aqueous Film-Forming Foams Products Liability Litigation MDL 2873 involved public water systems on the hook for millions of dollars to remove PFAS from drinking water. Those cases resulted in the 3M Co. offering up to $12.5 billion and three companies tied historically to E. I. du Pont de Nemours and Co. offering $1.18 billion in court-approved settlements.

A second group of public water system cases has begun to move through the national case with personal injury, state, and other lawsuits to follow.

Multimillion-dollar deals offered recently by the BASF Corp. and Tyco Fire Products LP “foreshadow more settlements to come” in the national case managed by the US District Court for the District of South Carolina and lawsuits in other courts, said Ralph DeMeo, shareholder with Guilday Law PA.

Many of the claims beyond the public water systems’ will fall on 3M and the DuPont-related companies, said DeMeo, who represents airports and other plaintiffs in the multidistrict litigation. More companies will be making offers, he said.

Final federal drinking water and Superfund rules combined with proposed waste regulations the Environmental Protection Agency released this year are pushing litigants toward settlements due to the requirements’ tremendous compliance costs and liability risks, DeMeo said.

“There’s not enough gold in Fort Knox to pay the damages and the settlements that are gonna come out of this. There’s just literally not enough money,” he said. “There’s a lot of concern about bankruptcy.”

Kidde-Fenwal Inc., which manufactured aqueous film forming foam (AFFF), a type of fire suppressant made with per- and polyfluoroalkyl substances (PFAS), filed for bankruptcy last year due to potential liabilities.

Thousands of individuals who say they’re suffering from illnesses including kidney and testicular cancers have filed claims in the MDL. At least 36 states, US territorial, and tribal governments seek recompense for natural resource and other damages, and additional parties have filed property damage claims.

‘Dozens of Defendants Left’

David Hoyle, a Motley Rice LLC trial lawyer working with the MDL’s Plaintiffs’ Executive Committee, wouldn’t predict whether more settlements are coming. But “there are dozens of defendants left,” he said.

“It’s reasonable to believe the settlement discussions are continuing,” Hoyle said.

3M’s settlement addresses AFFF formulations used for decades and made with perfluorooctane sulfonic acid (PFOS) and similar PFAS the company produced.

These PFAS degraded into substances so persistent they’ve been dubbed “forever chemicals.” 3M stopped producing the PFOS-related chemicals more than 20 years ago after it and the EPA learned they were showing up in people, animals, and water around the world.

The DuPont-related settlement, and the proposed Tyco and BASF settlements that plaintiffs have asked the court to preliminarily approve, address AFFF formulations that included other types of PFAS, many of which are called telomers.

BASF, Johnson Controls International-owned Tyco, and some other defendants are named due to activities allegedly made by one or more companies the firms acquired over the years, Hoyle said.

AGC Inc., Daikin America Inc., Deepwater Chemicals Inc., and Dynax Corp. are among the defendants in the group of telomer cases public water systems have filed that are proceeding next.

EPA rules require water utilities to monitor 29 PFAS in drinking water and remove anything above low parts per trillion amounts of six of the chemicals.

Next Cases

Honeywell International Inc., Phillips 66 Pipeline LLC, Raytheon Technologies Corp., and W.L. Gore & Associates are among the dozens of other defendants in the MDL.

Those companies face allegations they’ve produced, used, or released AFFF or its ingredients, or have made firefighters’ gear that until recently used PFAS for the chemicals’ heat- and water-resistance properties.

“This MDL is historic in nature not only in what it’s already achieved in terms of settlements for public drinking water utilities,” but in the complexities and range of claims made by other parties, Hoyle said.

“It would take like four federal judges to handle all this in normal circumstances,” said Judge Richard M. Gergel, who presides over the MDL, during a status conference in March. Instead, the cases are managed through the MDL process by addressing groups of claims with common issues through court-approved paths, he said.

The focus is now on the telomer cases, and personal injury cases seem next in line, Hoyle said.

Simultaneously, plaintiffs and the US government are fighting over the government’s position that it’s not liable for AFFF damage. Additional motions and briefs are scheduled this summer.

‘Decades’ of Litigation

Gergel hasn’t ruled on a request last year from states, tribes, and territorial sovereigns to move forward as a group, but he’s left the door open to that possibility, Hoyle said.

During the March status conference, attorneys for both sides agreed to discuss data states could gather that could help determine whether a sovereigns group of lawsuits should be formed. This data could include the percentage of excess PFAS contamination in the roughly 22 million private water wells that plaintiffs said serve about 45 million Americans.

The costs of treating drinking water provided at state-run parks, universities, prisons, and other sites also hasn’t been part of the settlements negotiated to date, but could be part of the damage claims sovereigns make, Hoyle said.

No matter what order the MDL cases proceed in, PFAS litigation will continue for decades, DeMeo said. He compared it to tobacco and asbestos cases, with asbestos remaining a battleground more than 40 years after those cases began.