On August 19, 2022, the parties in the PFAS AFFF MDL presented oral arguments to the Court in a long-awaited hearing on the government contractor defense. If successful, the defense would significantly change the landscape of the PFAS litigation nationally. While extensive briefing was submitted on the issue by several parties, ultimately the tenor of the hearing reflected a likely outcome of the defense being denied with respect to the PFAS AFF MDL. Such a denial of the defense would in and of itself have significant impact on PFAS litigation, as it would allow the first bellwether trials on the docket to proceed as currently scheduled in early 2023.

PFAS AFFF MDL

The PFAS AFFF MDL is currently home to over 2,500 cases and is being presided over by Judge Richard Gergel of the United States District Court of South Carolina. Cases that involve allegations of exposure to or pollution from PFAS-containing aqueous film-forming foam (AFFF) are litigated on the consolidated docket. It was announced in 2021 that three bellwether cases would proceed to trial in 2023 from the thousands that reside on the docket. Each of the three cases involves allegations by municipalities that PFAS AFFF polluted drinking water sources in the state, and various PFAS manufacturers, AFFF manufacturers, and suppliers are liable for remediation costs.

Government Contractor Defense

The defendants have long asserted the government contractor defense in the PFAS AFFF MDL, which if successful would relieve them of legal liability for many of the claims on the docket. At its heart, the government contractor defense allows parties doing business with the government to share in the government’s immunity from lawsuits for public policy reasons, if certain criteria are met. The U.S. Supreme Court has held that the government contractor defense proponent must show (1) the United States approved reasonably precise specifications for the product at issue; (2) the product conformed to those specifications; and (3) the supplier warned the United States about dangers in the use of the products known to the supplier but not to the United States.

In the PFAS AFFF MDL, the defendants argue that the government had specific requirements that AFFF had to meet in order to comply with federal guidelines, which could not be met without the use of PFAS in the AFFF. The companies therefore provided what the government wanted. Further, they argue that they warned the government of any hazards that they knew involved with the use of PFAS products, which helped the government make an informed decision about whether to continue using PFAS AFFF.

Oral Argument Takeaways

During the hearing on August 19, 2022 on the government contractor issue, Judge Gergel indicated that he has serious doubts as to whether the government contractor defense applies to the facts of the PFAS AFF MDL. His review of the cited caselaw in the briefing did not support an award of the government contractor defense under these facts, he said.

One issue that received considerable attention from the Court was what the EPA knew about PFAS hazards and the extent of the knowledge that the EPA had.  The defendants argued that they shared hazard / health information with the EPA regarding EPA.  As such, the EPA could make informed decisions about the AFFF product, decide to warn, or reject the product. But the Court seemed more inclined to think that what certain defendants did was provide what he called “pieces of the puzzle” but not a “complete picture.” However, he asked the parties to submit supplemental briefing on what precisely the defendants gave to the EPA and when, so he could review it in more detail. The supplemental briefing is due August 26.

The other notable argument topic was what certain defendants knew and chose not to provide to the government, if anything.  At one point, the Judge expressed serious doubt that if the government knew that PFAS were toxic, as it is alleged that at least one defendant did, that it would have continued to use AFFF products. Defense counsel pushed back very hard on this point saying that the information shared by certain defendants certainly could have led the EPA to the same conclusion.

Litigation Impacts

The questions from Judge Gergel are telling in that the Court paid special attention to the level of knowledge that all parties involved (corporate, government, etc.) had with respect to hazards associated with PFAS-containing AFFF, and whether there was a free exchange of such information so that the government could make an informed decision. If the government contractor defense is denied by Judge Gergel, these same issues with respect to knowledge will play out as trials proceed in 2023, and may well be one of the crucial deciding factors as to whether punitive damages are awarded should plaintiffs successfully try the bellwether cases to verdict.

CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.

Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact the Chair of our PFAS – Toxic Torts Team: John Gardella.