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3M Loses US Contractor Immunity Argument in PFAS Case (1)

Sept. 16, 2022, 8:05 PMUpdated: Sept. 16, 2022, 11:47 PM

3M Co. failed to persuade the federal judge presiding over PFAS mass tort litigation that the company is immune from liability for alleged damages for the toxic substances as a government contractor.

That question is for the jury to decide, Judge Richard M. Gergel said in a ruling Friday denying the manufacturer’s motion for summary judgment on the issue.

Companies including 3M, Chemguard Inc., Kidde-Fenwal Inc., National Foam Inc., and Dynax Corp. have been sued for damages allegedly caused by the chemicals, which are in fast food containers, cosmetics, furniture, and other products, more than 6,400 times since 2005.

The chemicals can’t break down naturally. They accumulate in water, on soil, and in blood, and can lead to severe health and environmental effects.

This multidistrict litigation presided over by Gergel is a pre-trial consolidation of more than 2,000 cases brought over the use of PFAS in Aqueous Film Forming Foams (AFFF), such as firefighting foams developed by 3M.

3M argued that because it developed the foam for the Navy to fight liquid fuel fires, it can’t be held liable under a government contractor defense, which limits manufacturers’ liability when producing military products to government specifications.

“While we are disappointed with the court’s ruling, this decision is made in summary judgment proceedings in which the court is required to examine the facts in the light most favorable to the plaintiffs,” the company said in an emailed statement.

“We believe that the evidence at trial will demonstrate 3M met the criteria for the government contractor defense in the ongoing AFFF multi-district litigation,” it said.

Gergel, who sits in the US District Court for the District of South Carolina, found there were issues of fact as to the government’s knowledge of the risks, and rejected 3M’s bid for immunity.

Gergel said that records show that the government didn’t know PFAS was present in AFFF until the year 2000, and that 3M conducted more than 1,000 internal studies on the presence of PFAS and its toxicity but never publicly disclosed it.

Records also show that 3M lied to the public about the presence of PFAS in people’s blood as early as the 1970’s, the judge said.

A Bloomberg Intelligence analysis found that total liabilities for 3M could reach $30 billion.

3M is represented by Wilkinson Stekloff LLP, Mayer Brown LLP, Campbell Conroy & O’Neil PC, Gunster Yoakley & Stewart PA and Goldman Ismail Tomaselli Brennan & Baum LLP.

The case is In Re Aqueous Film-Forming Foams Prod. Liab. Litig., D.S.C., No. 2:18-mn-02873, 9/16/22.

(Updates with statement from 3M in seventh and eighth paragraphs. A previous version of this story corrected the headline, story top and attorney affiliations.)

To contact the reporter on this story: Samantha Hawkins at shawkins1@bloombergindustry.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com