Aqueous Film-Forming Foams Products Liability Litigation, MDL No. 2873 (2019)

On 7 December 2018, the United States Judicial Panel on Multidistrict Litigation, or JPML, consolidated ninety lawsuits into the Aqueous Film-Forming Foams Products Liability Litigation, commonly called MDL No. 2873. Aqueous film-forming foams are substances that can smother fires, and they often contain toxic chemicals called per- and polyfluoroalkyl substances, or PFAS. MDL No. 2873, which originated in the District Court of South Carolina, addresses health and environmental concerns related to AFFF. Plaintiffs across the US claim that exposure to PFAS in AFFF causes various health issues, including cancer and birth defects. The litigation targets major manufacturers, including 3M, DuPont, and Chemours, who allegedly continued producing PFAS products despite known risks to human health. MDL No. 2873 consolidates nationwide PFAS claims and establishes a means to hold AFFF manufacturers responsible for environmental contamination with PFAS.

1. What Are PFAS?
2. PFAS Litigation
3. Policy Impacts
4. Conclusion

What Are PFAS?

PFAS are a type of synthetic chemical known for their resistance to environmental decay, which has earned them the nickname forever chemicals. Since the 1940s, companies have used PFAS in products like firefighting foams, nonstick cookware, waterproof fabrics, and food packaging. The chemical stability of PFOA allows them to accumulate over time in both the environment, such as in water or soil, and human bodies. Studies have associated PFAS exposures with a variety of health issues, such as damage to the immune system, kidney disease, and cancer, as well as adverse pregnancy outcomes and issues with fetal development. According to Craig Lilijestrand, an attorney with experience defending PFAS manufacturers, the durability of the chemicals and their associated health risks have raised significant concerns among US public and environmental health agencies, who note that there may be unknown long-term impacts of PFAS on human health and ecosystems.

In the 1960s, the US Naval Research Laboratory, in collaboration with PFAS manufacturer 3M, developed AFFF as a solution to the US Navy’s need for a tool capable of combatting high-intensity fuel fires in high-risk locations, such as airports, military bases, and industrial sites, where conventional, water-based firefighting is ineffective. AFFF relies on the chemical properties of PFAS to form a film that smothers fuel, extinguishing fires and preventing re-ignition. The innovation quickly became commonly used in situations involving jet fuel and other flammable liquids. Since the release of AFFF onto the US commercial market, multiple companies, such as 3M, DuPont, and a subsidiary of DuPont called Chemours, have either manufactured AFFF itself or the PFAS component of AFFF. Both military and civilian sectors use AFFF.

Since the 1960s, AFFF manufacturers like 3M and DuPont were aware of the adverse health effects related to PFAS exposure. Journalist Amy Linn of the investigative journal Searchlight New Mexico writes in a 2019 article that internal studies by 3M in the 1970s found that PFAS are toxic, and research from DuPont scientists in the 1980s revealed that mothers can pass PFAS to her inborn infant through the umbilical cord. According to a 2018 fact sheet by the Union of Concerned Scientists, a nonprofit science advocacy group, one of the first instances of public awareness of health issues from PFAS exposure occurred in 1998, when Ohio attorney Rob Bilott investigated the case of a West Virginia family whose cattle were suffering unexplained illnesses. That case led to the release of thousands of documents from DuPont, which revealed that DuPont had contaminated the local water supply with PFAS from a nearby factory. The documents also disclosed that DuPont had hidden years of internal research that linked PFAS to negative health effects. In 2017, DuPont agreed to pay $671 million to settle permanent injury claims in the community, but, as of 2018, the actual payout has been more than $1 billion.

PFAS Litigation

In response to many similar cases alleging health damage from exposure to AFFF, the United States Judicial Panel on Multidistrict Litigation, or JPML, a group of federal judges responsible for consolidating related cases, established MDL No. 2873 in the District Court of South Carolina in late 2018 under Judge Richard M. Gergel. An MDL is when the judicial system combines lawsuits from different areas in the US that are all about the same issue and assigns those cases to one judge. According to Shiela Burnbaum and her colleagues, who are lawyers at the University of Missouri-Kansas City School of Law in Kansas City, Missouri, MDLs are beneficial because of their legal efficiency. For example, they have consistent pretrial rulings, including decisions like which expert testimony is permissible and what kinds of documents that each party should share with each other. Because of that efficiency, MDLs conserve the money and time of the parties and the court. The initial consolidation consisted of ninety personal injury cases from across the country. The centralization aimed to simplify the legal process, prevent repeated work, and ensure the cases were handled in a timely manner.

As of December 2025, MDL No. 2873 consolidates over 15,000 lawsuits from individuals across the US who encountered AFFF products containing PFAS. The plaintiffs include individuals and public water providers, as well as local and state governments, alleging harm from PFAS exposure. In the MDL No. 2873, the plaintiffs have sued AFFF manufacturers, including 3M, DuPont, and Chemours, alleging that they knew about the health concerns associated with long-term exposure to PFAS but did not warn customers or the general public.

As of 2025, Judge Gergel had not yet started the trial to produce a formalized ruling for the entire MDL. He scheduled the trial for 20 October 2025, focusing on claims about kidney cancer due to AFFF exposure, but, in August 2025, he pushed the trial back to an undisclosed date. Judge Gergel’s reasoning for that decision included the need for additional time to vet the large number of unfiled cases to ensure that they are eligible to join the MDL.

Although, as of 2025, there has not yet been an official trial for the entire MDL, there have still been various settlements within the MDL. In June 2023, a group of plaintiffs representing public water suppliers, hereafter PWS, secured two large settlements for the contamination of public water with PFAS from AFFF: $1.185 billion from DuPont and between $10.5 and $12.5 billion from 3M. Furthermore, on 11 June 2024, PWS received preliminary approval for an additional two settlements regarding public water contamination from AFFF producers, including $750 million from Tyco Fire Products LP and $316.5 million from BASF Corporation. On 1 November 2024, a type of court proceeding called a fairness hearing, which ensures that the settlements are fair for both parties, confirmed the settlement amounts.

Policy Impacts

The issue of PFAS contamination has received national attention and prompted policy changes. In April 2024, the Biden-Harris Administration finalized a national drinking water standard for six types of PFAS, marking the first enforceable limits on these chemicals. The new rule, part of a larger strategic plan by the Environmental Protection Agency, or EPA, to manage PFAS exposure, aims to protect 100 million people from the harmful effects of PFAS and prevent thousands of deaths. Alongside the rule, the administration promised to use nearly one billion dollars through the bipartisan infrastructure law to support certain states and territories in addressing PFAS contamination in drinking water. Public water infrastructures and private wells can use the funds to test and treat water for PFAS. The EPA planned for those standards to go into effect in 2027.

However, on 14 May 2025, the EPA announced their plans to roll back many of those protections regarding drinking water standards. According to a May 2025 press release from Safer States, the EPA stated at that time that they will rescind and reconsider maximum contamination limits for four types of PFAS, as well as delaying the implementation date of the standards for the remaining two types. Sarah Doll, the national director of Safer States, stated in response that the decision will cause more people to face exposure to toxic amounts of PFAS. She also notes that it will put more pressure on state governments to create PFAS regulations. As of 11 December 2024, thirty-one states have already initiated litigation against PFAS manufacturers.

Conclusion

By consolidating thousands of AFFF lawsuits related to PFAS exposure, the MDL helps to develop a more efficient litigation process, as, by joining MDL No. 2873, plaintiff can reach a settlement or resolution faster than if they filed a suit independently. The centralization not only streamlined the judicial process but also produced consistent rulings in a case involving overlapping claims from plaintiffs across the nation.

Sources

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