Last month, Judge Gergel conducted a hearing on a very important issue in the Aqueous Film Forming Foams (“AFFF”) litigation: the government contractor defense.
What is the government contractor defense?
The government contractor defense is a defense that defendants assert to avoid liability. It essentially says that contractors doing business with the government may not be liable for harm caused by their products if the government has approved of the products it uses.
How does it apply in this case?
Defendants in the AFFF litigation are manufacturers of AFFF and manufacturers of chemicals used in AFFF. The government has used defendants’ AFFF at military bases around the United States since the 1970’s. In 2018, the government discontinued certain types of AFFF after realizing its risks of harm.
Last year, defendants filed a motion to dismiss a majority of AFFF cases based on the government contractor defense. The parties briefed their positions and Judge Gergel conducted a hearing last month.
Defendants maintain the position that AFFF is not harmful to human health or the environment. Defendants claim that the government knew about any risks of AFFF. Even with this knowledge, the government authorized the use of the AFFF. Therefore, defendants believe that the government contractor defense shields them from liability for harm their products have caused.
Plaintiffs argue that defendants knew more about the risks of AFFF than they let on. If defendants had provided the government with studies showing that AFFF is harmful, the government would have decided to discontinue the use of AFFF sooner. Defendants’ delay in disclosure of risks contributed to the delay in the government’s decision to discontinue use of certain types of AFFF in 2018.
What happened at the hearing?
Both parties argued their positions at the hearing. Judge Gergel dd not rule at that time. But he did order the parties to submit additional information after the hearing. The requested information concerns past studies on the safety of AFFF. This will help him determine what defendants knew and when they knew it. This is important in determining what the government knew or should have known.
Judge Gergel’s ruling will have a huge impact on the litigation. We believe the hearing went well for plaintiffs. We are hopeful Judge Gergel will rule in our favor.