Ringing the Bell(wether): Multibillion Dollar Settlement Reported in PFAS Litigation

The first bellwether trial in the massive Aqueous Film-Forming Foams (AFFF/PFAS) multi-district products liability litigation MDL-2873 (MDL) was delayed pending finalizing a reported $10 billion financial settlement by the largest of the manufacturing defendants. In granting the delay, the Court ordered weekly updates and a final report no later than June 26, with trial to follow “promptly” if the case is not settled. The report of the settlement came on the heels of an announced settlement by a number of chemical companies and public water systems for $1.2 billion late last week. While the terms and amounts of any settlements remain uncertain, the potential settlements won’t dispense with the entire litigation but could dispense with most of the public water supply claims.

In defining the AFFF MDL, the judicial panel on multi-district litigation (JPML) stated the litigation concerned “AFFF products used at airports, military bases, or certain industrial locations [that] caused the release of PFOA or PFOS into local groundwater and contaminated drinking water supplies.” Plaintiffs in the consolidated litigation vary from individuals to states and include many public water suppliers. Further complicating the equation on the eve of trial, on March 23, 2023, the EPA issued notice of a proposed national primary drinking water regulation requiring public water systems to monitor and reduce PFAS levels, adding urgency to considering settlement for a trial focused on a public water system. In addition, on April 11, 2023, EPA posted an advance notice of proposed rulemaking (ANPRM) regarding potential future hazardous substance designation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) for PFAS.

Fighting Fire with Paper

There is little doubt that attempting to extinguish a litigation fire with paper money leads inevitably to brush fires that can take years to quell. In this case, as in all large toxic tort litigation, court rulings on important issues concerning the scope of the claims, permissible expert testimony, and evidence exclusion were decided only a few weeks ago, just before trial and, with a number of rulings being adverse to the defense, the risk assessment changed fairly dramatically late in this high stakes game. Compounding the problem, every branch of state and federal government is weighing in on PFAS, including legislators, the EPA, FDA, CDC, and even the White House, all clamoring to address real and imagined environmental and health problems. In extraordinary cases such as these, the risk of having a jury make sense out of the complex legal and scientific issues leaves industry few options.

What’s Next or How Long Is Forever Really?

With thousands of cases pending in the AFFF/PFAS MDL, it is unclear how much of the groundwater litigation will be resolved or how much follow-on litigation the settlement will attract. Also, percolating is a third circuit case where Chemours is challenging the EPA’s health advisories on due process grounds. While the U.S. Supreme Court may revisit its Chevron deference doctrine and the EPA may be forced to revisit its health advisories, the settlement genie may not be easy to get back in the bottle. What remains even less clear in the shadow of the current settlement, is what impact a large settlement will have on the burgeoning Non-AFFF cases that are proliferating throughout the nation for a broad range of industrial uses and consumer products. The Non-AFFF cases may be yet another train and not the end of the tunnel.