Cases involving Aqueous Film Forming Foams (“AFFF”) have been consolidated in Federal Court in South Carolina before Judge Richard Gergel. Such consolidation is known as a multi-district litigation (“MDL”). Establishing an MDL is common and allows one judge to oversee all pretrial discovery in cases where there exist common questions of fact.
What is the status of the litigation?
In managing such a large and complex litigation, Judge Gergel decided to focus first on cases where plaintiffs are municipalities and water suppliers whose water is contaminated with PFAS (the family of toxic chemicals found in AFFF). Last year a settlement was reached between those types of plaintiffs and several defendants.
Is there a plan for personal injury cases?
With contaminated water settlements underway, Judge Gergel turned his attention to personal injury cases. Personal injury cases include people injured as a result of using AFFF or ingesting water contaminated with PFAS. First, Judge Gergel chose personal injury cases where AFFF exposure occurred at certain military bases for initial trials. The trials will likely begin at the end of the year.
What injuries are part of the litigation?
There are thousands of personal injury cases alleging different injuries in the litigation. Therefore, Judge Gergel directed the parties to focus on certain injury claims that appear to have the most compelling medical and scientific literature to support proof the injury was caused by PFAS exposure. The injuries are testicular cancer, kidney cancer, thyroid cancer, thyroid disease, liver cancer, and ulcerative colitis.
Recently issued Case Management Order
Judge Gergel recently issued Case Management Order (“CMO”) No. 28, and amended CMO 28 to clarify that the order applies to all personal injury claims. This CMO places stringent proof deadlines for all claims other than the six listed above. Specifically, the Court Order requires submissions of reports by medical experts certifying that exposure to AFFF caused the injury. Failure to meet the deadline can cause dismissal of the case. Further, the order allows plaintiffs with claims other than those listed above to dismiss their claims without prejudice.
What does “without prejudice” mean?
Dismissing a lawsuit without prejudice mans that it may be refiled in the future. Pursuant to CMO 28, a plaintiff may refile a case within a certain amount of time. For example, a plaintiff may want to refile the lawsuit if scientific evidence supporting the alleged injury favorably develops. If so, it may be possible to comply with the expert requirements of CMO 28.
Please contact us if you have been exposed to AFFF and diagnosed with testicular cancer, kidney cancer, thyroid cancer, thyroid disease, liver cancer, or ulcerative colitis.
