First Bellwether Trial in National Firefighting Foam Litigation Starts Monday in City of Stuart, Florida

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Levin Papantonio Rafferty (LPR) law firm attorneys Wes Bowden and Ned McWilliams are playing leading roles in a firefighting foam trial that will commence on Monday in the City of Stuart. The City of Stuart was chosen to be the first of three bellwether trials in the Aqueous Film-Forming Foams (AFFF) Products Liability Litigation MDL No. 2873. (City of Stuart, Fl. v. 3M Co. et al., (No. 2:18-cv-03487)). Bowden, LPR Attorney Ned McWilliams, and Gary Douglas of the Douglas and London Firm will serve as trial counsel for the City.

This morning, Dupont, Chemours, and Corteveva, three Defendants in the national litigation, announced they have agreed to pay $1.185 billion in the first major settlement in MDL 2873, in which cities like Stuart allege that the Defendants’ AFFF contaminated water supplies with harmful per- and polyfluoroalkyl substances (PFAS).

Bowden serves on the Plaintiffs’ Executive Committee in the AFFF litigation, and McWilliams is a member of the Science and Discovery Committees in the MDL.

“The settlement is good news for the Plaintiffs in this litigation,” McWilliams said. “At this point, we are dedicating our full attention on representing the City of Stuart next week, a trial whose outcome could inform future settlements.”

AFFF, also known as firefighting foam, has been linked to various types of cancer, including kidney cancer, testicular cancer, pancreatic cancer, and prostate cancer. The costs associated with remediation are tremendous, and Bowden wants other municipalities to know they can still join this litigation to recover their costs.

“When drinking water sources are polluted with these harmful chemicals, PFAS manufacturers, AFFF manufacturers, and suppliers are liable for remediation costs. We encourage affected municipalities to help their communities by getting involved in this litigation, and we can guide them through this process,” Bowden said.

Municipalities in all the bellwether cases allege that PFAS manufacturers, AFFF manufacturers, and suppliers are liable for remediation costs from drinking water sources being polluted with PFAS AFFF.

About the City of Stuart’s AFFF Complaint

Florida’s Department of Environmental Protection detected PFAS in three of the City of Stuart’s 24 wells. These wells were located near stations where AFFF, manufactured and sold by 3M, was used in firefighter training. The foam traveled underground and found its way into wells.

When the City of Stuart’s former public works and utilities director David Peters learned of the contamination, he convinced the Stuart City Commission to invest in a state-of-the-art filtration system.

The City aims to recover expenses from the filtration equipment installation in the amount of more than $100 million, as well as punitive damages.

Pre-Trial Litigation to Date in the City of Stuart Case

Before the City of Stuart case has even gone to trial, Bowden and McWilliams have already successfully navigated multiple challenges in the case.

On May 12, 2023, U.S. District Judge Richard Mark Gergel granted the Plaintiff’s motion to exclude the government contractor defense as an affirmative defense.

The Court also rejected 3M’s omnibus motion to exclude expert testimony, with Judge Gergel’s order affirming that the testimony presented by experts on behalf of the City of Stuart is “the product of reliable principles and methods,” as governed by the Daubert standard.

McWilliams underscored the significance of the Daubert outcome, given the scientifically complex nature of the City of Stuart case. “It gave us valuable insight into as to what extent the jury will understand the elements of issue,” McWilliams said in an earlier statement. “It’s incredibly significant, especially in the first bellwether trial for this MDL.”

About the AFFF MDL

As of May 15, 2023, nearly 4,500 cases have been filed in the AFFF MDL and centralized in the U.S. District Court District of South Carolina for pretrial proceedings presided over by Judge Richard Gergel.

The AFFF MDL is a mass tort brought on behalf of water providers and other individuals who have been harmed by exposure to AFFF and/or are required to incur costs associated with its remediation.

Defendants in the AFFF MDL include:

  • DuPont
  • 3M
  • BASF Corporation
  • Chemours
  • Corteva
  • Arkema
  • AGC Chemicals Americas
  • Dynax Corporation
  • Kidde-Fenwal Inc.
  • Clariant Corporation
  • UTC Fire & Security Americas Corporation
  • ChemDesign Products Inc.