Aqueous Film Forming Foams (“AFFF”) are used to extinguish petroleum-based fuel and other flammable liquid fires. The AFFF litigation involves injuries sustained as a result of exposure to AFFF containing fluorocarbon molecules. Fluorocarbon molecules contain or may break down into PFAS and PFOS. PFAS and PFOS are “forever chemicals” that never leave the body and are known to cause cancer.
In November 2021, Defendants, manufacturers of AFFF and/or chemicals in AFFF, collectively filed a motion attempting to have thousands of AFFF lawsuits dismissed. Defendants base their argument on the first element of a defense known as the government contractor defense.
WHAT IS THE AFFF GOVERNMENT CONTRACTOR DEFENSE?
The government contractor defense essentially says that contractors doing business with the government may not be liable for harm caused by their product(s) if the government has approved of the product(s) it uses.
In Boyle v. United Technologies Corp., the Supreme Court held that contractors may be shielded from liability under the government contractor defense if they can prove three elements:
- The United States approved reasonable precise specifications;
- The product met those specifications;
- The supplier/contractor warned the United States about known dangers of the product(s).
HOW DOES IT APPLY TO AFFF CASES?
In approximately 1969, the United States Department of Defense began requiring the use of AFFF at military bases. One year later, the Federal Aviation Administration required AFFF at civilian airports. The government specified that the AFFF must contain fluorocarbon surfactants.
DEFENDANTS’ ARGUMENT
Defendants argue that because the government mandated fluorocarbon surfactants be used in AFFF, Defendants had no choice but to use PFAS and PFOS in order to comply. The government purchased and used AFFF with reasonably precise specifications itself approved.
Further, Defendants claim that the government continued to use AFFF even after it knew of the product’s harm.
PLAINTIFFS’ ARGUMENT
Plaintiffs argue that fluorocarbon surfactants are part of a broader family of chemicals that do not include PFAS and PFOS. Therefore, Defendants could have manufactured AFFF without using the harmful chemicals while still complying with the government’s specifications.
Plaintiffs urge the Court to not to dismiss the cases, but allow them to proceed for a jury to decide liability.
NEXT STEPS FOR AFFF
In March, the Court requested supplemental briefing on the second and third element of the government contractor liability defense. Briefing will conclude in July and oral arguments will likely be in August. We are hopeful that Plaintiffs will prevail and look forward to Judge Gergel’s decision.
