Judge Gergel held a status conference and the Tyco and BASF settlement fairness hearings on November 1, 2024. The courtroom was packed with attorneys from both sides and the judge had a full agenda to cover.
The Importance of Product Identification in AFFF Cases
Product identification for the cases was a major topic of discussion. The judge recognized that this was an important issue for the case and that Plaintiffs had not been able to do full product identification discovery in this case yet. He explained that he wants the parties to collaboratively come up with a plan to work up a small but significant number of cases for product identification. Ultimately, he wants to see a significant effort to establish product identification of PFAS contaminants in public water systems.
Next Steps for Product Identification
The parties have 60 days to come up with a plan including to select certain entities to proceed with product identification discovery and to come up with a schedule. It appears the judge is signaling that he expects product identification for each defendant in each case. Plaintiffs in the MDL should all be working to gather this type of information through documentary evidence and witness statements as soon as possible.
The first personal injury bellwether is set for October and the judge offered to discuss a continuance if product identification was an ongoing issue in those cases. Plaintiffs’ counsel assured the judge that product identification was covered, and no delay was needed.
Kidde/Carrier AFFF Public Water Supplier Settlement Status
Plaintiffs also discussed the pending Kidde/Carrier $730 million settlement and additional future settlements. The final terms of the Kidde/Carrier settlement are still being worked out, but the final term sheet should be completed shortly. Ultimately, additional settlements are expected and have been encouraged by the judge.
Tyco and BASF Fairness Hearings
The Tyco $750 million and BASF $315 million settlements were the topic of the day. The judge held the Tyco and BASF final fairness hearings jointly due to the settlements’ similarities. The classes for both settlements are limited to public water systems that had a PFAS detection prior to May 15, 2024.
Plaintiffs’ leadership presented a compelling case in support of the settlements and the judge posed questions that indicated his support. Counsel for Defendants offered support for the settlements. Ultimately, there were only a handful of objections presented by one attorney who previously objected to the 3M and DuPont settlements. The objections did not appear to deter the judge from approving the settlements. However, the judge took the motions for final approval under advisement and is expected to rule shortly. We are optimistic that the settlements will receive final approval, and the claims process will begin in the next few months.
Overall, the AFFF litigation is progressing. Plaintiffs’ counsel reported that more than 400 individuals had worked on developing the Plaintiffs’ case. There is no doubt that the top lawyers in the country are working to prosecute the claims.
