Legal Challenges in AFFF Toxic Tort Litigation and PFAS Exposure Cases

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The use of aqueous film-forming foam (AFFF) in firefighting has raised significant concerns regarding public health and environmental safety. This is especially due to the pervasive presence of per- and polyfluoroalkyl substances (PFAS) in these products. 

These PFAS compounds have been linked to adverse health effects. Lawsuits have emerged, with individuals and communities pursuing litigation against manufacturers and users of AFFF, seeking compensation for damages incurred due to PFAS exposure. However, navigating these legal challenges is complex and multifaceted, involving scientific, regulatory, and procedural hurdles.

In this article, we will discuss the legal, health, and environmental implications of AFFF use, focusing on PFAS contamination challenges.

Establishing Causation

Proving causation between AFFF exposure and health issues is a complex endeavor due to multiple potential sources of PFAS contamination. For instance, firefighters, military personnel, and civilians may encounter PFAS in various contexts beyond AFFF, such as consumer products and contaminated water supplies. 

According to Leigh Day, firefighters have used AFFF since the 1970s, contributing to potential long-term exposure. In litigation, plaintiffs must rely on epidemiological studies and expert testimonies to establish a direct link between AFFF exposure and specific health outcomes. 

For example, studies have shown increased cancer risks among individuals exposed to PFAS, including bladder cancer, testicular cancer, and kidney cancer. Moreover, proving causation often involves tracing the migration of PFAS contaminants from AFFF to affected individuals or communities through environmental sampling and forensic analysis.

The Evolving Regulatory Framework

The regulatory landscape surrounding PFAS compounds is fragmented, with no comprehensive federal regulations specifically addressing these substances. While the Toxic Substances Control Act (TSCA) empowers the EPA to regulate certain chemicals, including PFAS, enforcement has been limited. 

Additionally, individual states have implemented varying regulations and guidelines regarding PFAS contamination in drinking water and environmental remediation. For example, the International Association of Defense Counsel (IADC) notes that in 2021, Johnson Controls agreed to pay $17.5 million to settle a PFAS lawsuit.

However, the absence of unified federal standards complicates litigation, leading to disparate outcomes across jurisdictions. 

Plaintiffs often navigate a patchwork of regulations and standards to establish liability and seek redress for PFAS-related harms.

Liability of Manufacturers

Manufacturers of AFFF face allegations of negligence and failure to warn users about the health risks associated with PFAS exposure. Companies like 3M, DuPont, and Kidde-Fenwal have been named in the firefighting foam lawsuit, with plaintiffs accusing them of prioritizing profits over public health. 

NPR notes that 3M offered a $10.3 billion settlement in June 2023 in an attempt to resolve litigation, signaling recognition of potential liability. However, TorHoerman Law notes that legal battles persist as plaintiffs seek accountability for the adverse effects of PFAS contamination. 

Manufacturers’ internal documents and research findings may serve as critical evidence in establishing knowledge of the health risks posed by PFAS in AFFF. Despite manufacturers’ denials and legal defenses, mounting evidence and public awareness fuel ongoing litigation seeking justice for affected individuals and communities.

Governmental Immunity

Government entities, including fire departments and military branches, often invoke sovereign immunity or statutory protections to shield themselves from liability in AFFF-related lawsuits. This immunity presents a significant hurdle for plaintiffs seeking compensation for injuries or damages. 

Determining the scope of governmental immunity requires careful examination of relevant statutes, case law, and the specific circumstances of each case. While sovereign immunity may limit the liability of government entities, exceptions exist, such as instances of gross negligence or intentional misconduct. 

Plaintiffs may argue that government agencies were aware of the risks associated with AFFF but failed to take appropriate measures to protect public health. Overcoming governmental immunity requires strategic litigation tactics and compelling evidence demonstrating the extent of harm caused by PFAS exposure.

Class Action vs. Individual Lawsuits

Plaintiffs face strategic decisions regarding whether to pursue class action lawsuits or individual claims in AFFF litigation. Class actions offer efficiency by consolidating numerous similar claims into a single proceeding, streamlining litigation and potentially increasing settlement leverage. 

However, class certification requires meeting stringent legal criteria, including commonality, typicality, and adequacy of representation. Individual lawsuits provide plaintiffs with greater control over their cases and the opportunity to tailor arguments and evidence to their specific circumstances. Nonetheless, individual litigation entails higher costs and resources compared to class actions. 

Plaintiffs must weigh the pros and cons of each approach based on several factors. This involves the strength of their claims, the size of the affected population, and the likelihood of obtaining favorable outcomes. Ultimately, the choice between class actions and individual lawsuits depends on the unique circumstances of each case and the preferences of the plaintiffs.

Environmental Contamination and Remediation

AFFF litigation extends beyond personal injury claims to encompass environmental contamination and remediation efforts. PFAS pollutants from AFFF can leach into soil, groundwater, and surface water, posing long-term risks to ecosystems and human health. Remediation efforts involve costly cleanup measures to mitigate the spread of PFAS contamination and restore affected environments. 

Additionally, plaintiffs seek restitution for ecological damage and loss of natural resources caused by AFFF-related pollution. Environmental organizations and regulatory agencies play crucial roles in monitoring PFAS contamination and enforcing cleanup obligations on manufacturers and users of AFFF. 

Legal disputes over environmental liability and remediation costs contribute to the complexity of AFFF litigation. It requires collaboration among stakeholders to develop comprehensive solutions for addressing PFAS pollution and safeguarding public health and the environment.

Evolving Science and Legal Precedents

Advancements in scientific research and evolving legal precedents shape the trajectory of AFFF toxic tort litigation. Ongoing studies continue to uncover the health risks associated with PFAS exposure, bolstering plaintiffs’ claims and increasing public awareness of firefighting foam risks. 

Courts must grapple with integrating new scientific evidence into legal proceedings and adapting legal standards to address emerging challenges effectively. Furthermore, landmark court decisions and precedent-setting rulings influence the legal landscape surrounding AFFF litigation, setting standards for liability, causation, and damages. 

As the scientific understanding of PFAS toxicity evolves and legal frameworks evolve, AFFF litigation will continue to evolve. It will also continue to shape future strategies and outcomes for plaintiffs and defendants alike.


What cancers are caused by AFFF foam?

Cancers associated with AFFF exposure include bladder cancer, kidney cancer, pancreatic cancer, testicular cancer, and thyroid cancer. These are among the health risks attributed to the per- and polyfluoroalkyl substances (PFAS) present in AFFF.

What is the issue with firefighting foam?

The primary issue with firefighting foam, specifically aqueous film-forming foam (AFFF), lies in its inclusion of per- and polyfluoroalkyl substances (PFAS). They are persistent chemicals linked to environmental contamination and health risks, including cancer and reproductive problems.

What is F3 foam?

F3 foam, also known as fluorine-free foam, is an environmentally friendly firefighting foam that does not contain per- and polyfluoroalkyl substances (PFAS). It offers an alternative to traditional AFFF, addressing concerns over environmental contamination and health risks.

In conclusion, the legal battles surrounding AFFF and PFAS exposure reflect a pressing need for unified regulatory frameworks and heightened corporate accountability. Despite complexities in proving causation and navigating governmental immunities, plaintiffs persevere in seeking justice for health and environmental damages.

Manufacturers’ settlements and advancing scientific research underscore the urgency of addressing PFAS risks. As legal precedents evolve, collaboration among stakeholders is vital to ensure public health and environmental safety. The journey toward resolution highlights the importance of proactive regulation and collective action to mitigate the far-reaching impacts of AFFF contamination.