Firefighting Foam Litigation Continues to Spread

by Fred McDonald

On June 19, 2018, The State of New York filed a complaint against 3M and five other companies over contamination from aqueous film-forming foam and related products, also known as “AFFF”.[1]  New York alleges that AFFF, more commonly known as firefighting foam, was discharged into the environment at sites throughout the State and more specifically caused various health related injuries to its citizens.[2]  The first lawsuits against the various manufacturers of the foam were filed in 2016.[3]  However, New York is the first State to bring this sort of lawsuit and has likely set the stage for others to follow.

Firefighting foam lawsuits have emerged in the past few years because it contains the man-made, chemical compound perfluorooctanoic acid, also known as “PFOA”.[4]  The American Cancer Society has identified PFOAs as a health concern, “… because it can stay in the environment and in the human body for long periods of time.”[5]  Interestingly enough, the majority of individuals throughout the world have low concentrations of the chemical in their blood streams.[6]  However, a higher concentration in individual’s blood stream is common in areas where residents unknowingly consume water contaminated with such chemicals.[7]  New York is just one example of a State where individuals have higher concentrations of the chemical as a result of water contamination.[8]

On behalf of its citizens, New York alleges three causes of action against 3M and the additional manufactures of AFFF, including public nuisance, strict products liability for defective design, and strict products liability for failure to warn. [9]  Additionally, New York seeks restitution for investigation and remedial efforts at the contamination sites.[10]  But just as other actions against these manufacturers have faced difficulties, New York will need to put its best foot forward for success.[11]

For guidance, New York should look to the case State of Minnesota v. 3M.[12]3M settled with Minnesota, instead of going to trial, for an $850 million-dollar grant to be used for improving water quality and sustainability.[13]  While this victory shows hope, the settlement likely means 3M has avoided an admission to liability.  Additionally, with the Minnesota lawsuit avoiding trial, it is unclear whether 3M will be held liable for a nuisance claim; New York’s lawsuit will also be the first to address the product’s liability claims on behalf of its citizens.

Since the complaint was filed back in June, New York probably has some time before a trial is set.  But given the influx of firefighting foam litigation, many unanswered questions and breakthroughs will likely be brought to the fore in the coming months.

 

[1]Complaint at 1, State of New York v. 3M, (Sup. Ct. 2018) (No. 904029-18).

[2]Id.at 2

[3]SeePeter Hayes, 3M Firefighting Foam Cancer Fears Spur Suits, Bloomberg(Jan. 30, 2018)    https://www.bna.com/3m-firefighting-foam-n73014475002/.

[4]See, e.g.,Complaint, supranote 1, at 1.

[5]Teflon and Perfluorooctanoic Acid (PFOA), American Cancer Society(Jan. 5, 2016) https://www.cancer.org/cancer/cancer-causes/teflon-and-perfluorooctanoic-acid-pfoa.html.

[6]Id.

[7]Id.

[8]SeeComplaint, supranote 1, at 12.

[9]Id.at 23-26.

[10]Id.at 22.

[11]See generallyHayes, supranote 3.

[12]See generallyAmended Complaint at 1, State of Minnesota v. 3M (Minn. Dist. Ct. 2011) (No. 27-CV-10-28862).

[13]SeeTiffany Kary, 3M Settles Minnesota Lawsuit for $850 Million, Bloomberg(Feb. 20, 2018, 3:53 PM) https://www.bloomberg.com/news/articles/2018-02-20/3m-is-said-to-settle-minnesota-lawsuit-for-up-to-1-billion.

3 comments

  1. Very interesting issue. Do you know if PFOA bio-accumulates in the ecosystem? A bio-accumulation could lead to a greater amount of damage and could increase the money damages that were owed.

  2. I think a public nuisance claim is an interesting approach to this problem, and it might be a hard one to succeed on. On one hand, the gravity of the harm could potentially be great depending on how serious PFOAs affect human health. If the American Cancer Society only considers these chemicals a “health concern,” this might not be a grave enough weighed against the utility of this company. I assume the company likely employs many people and manufactures a product used by many. I doubt injunctive relief would be granted, but perhaps money damages could be granted, similarly to Boomer, to allow the company to improve its technology without shutting the company down.

  3. This is such an interesting environmental issue! I wonder what the standard practice is in California for fighting wildfires (i.e. whether they use PFOA or other hazardous chemicals) and what the case law in that state has held in regard to similar suits brought against manufacturers. I’m not sure if this kind of spray foam is the kind firefighters spray from planes or use around neighborhoods affected. It is tragic that California authorities are constantly battling wildfires but I’m interested to know whether the state is facing similar issues as New York and Minnesota as a result of this constant spraying.

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