A nationwide multidistrict litigation (MDL) lawsuit over per- and polyfluoroalkyl substances (PFAS) contamination, filed by 100 water and wastewater systems, is making progress in a South Carolina federal district court. The water provider cases are one subset of approximately 2,500 + cases pending in the MDL, but the court has selected the water provider cases as bellwether cases, meaning those cases will be tried first.
Of the water systems involved in the MDL, three bellwethers were chosen as test cases. Bellwether trials are used to work through common legal and factual issues that apply to the majority of the other similarly situated cases. If test cases receive favorable results, the larger pool of plaintiffs can proceed forward more efficiently, often creating a “domino effect” of settlements or court judgements.
The MDL, known as In re: Aqueous Film Forming Foams Products Liability Litigation, MDL-2873, was filed in 2018. As noted on the Court’s website: “all involve varied causes of action and claims relating to PFAS. Plaintiffs are generally alleging that aqueous film-forming foams (AFFFs) containing perfluorooctanoic acid (PFOA) and/or perfluorooctane sulfonate (PFOS), two types of PFAS, contaminated groundwater near various military bases, airports, and other industrial sites where AFFFs were used to extinguish liquid fuel fires.” The plaintiffs generally allege that the PFAS caused medical problems, property damage, and will require costly and substantial treatment and remediation.
SL Environmental Law Group (SL), in partnership with five other law firms, and as members of plaintiff leadership, represents water and wastewater agencies, as well as states, sovereigns and other plaintiffs who have suffered property damage. The bellwether water provider cases are now in the discovery phase, with expert witness depositions underway and pretrial motions to begin in the fall. A trial date is currently scheduled for March 2023.
Who are the Bellwethers?
Bellwethers are chosen because their legal issues are a good representation of those experienced by the whole group. They are selected through negotiation between the attorneys for the plaintiffs and defendants. A pool of 10 bellwether water provider cases were originally selected, and they were whittled down to three through negotiation between the parties. Those three municipalities are: Ayer, Massachusetts; Sioux Falls, South Dakota; and Stuart, Florida. Although SL does not directly represent these municipalities, as part of the leadership of the MDL, SL and its partnership of firms are intimately involved in prosecution of these cases in the MDL 2873.
Not Too Late to Join
Additional plaintiffs are still able to join this MDL. The process is relatively simple, requiring the sharing of key information about your system, contamination, remediation actions taken, and costs incurred. Many representing law firms, like SL take cases on contingency, so the client has no upfront costs and only pays if a settlement or trial verdict is won.
As proceedings are already underway for water providers, it effectively shaves off three years (the duration the MDL has already been pending) to settlement or trial verdict, making now a good time to join.