CHARLESTON, S.C. (Legal Newsline) - Michigan Attorney General Dana Nessel is fighting a federal judge’s order sending one of the state’s lawsuits over groundwater pollution by the chemical PFAS to the judge overseeing multidistrict litigation, arguing it can separate claims associated with commercial firms from those stemming from spills of military-spec firefighting foam.
The Panel on Multidistrict Litigation rejected Michigan’s attempt to split its lawsuits in a June 7 order, describing their argument as “untenable.” The state nevertheless renewed its request to remand the non-firefighting foam cases to state court in a June 11 filing with the MDL court in Charleston, S.C.
Michigan is represented by private lawyers with DiCello Levitt, the Fields law firm and Keating Muething & Klekamp, who stand to earn significant fees if the state’s case is successful. As part of their litigation strategy, the state and its outside counsel have tried to separate claims associated with firefighting foam from claims over pollution caused by other products made by companies including DuPont and 3M, so they can keep the latter in more favorable state courts.
In the June 7 order, the MDL panel said both types of cases involve common questions of fact and law, however, and are best left before the South Carolina court overseeing all pretrial procedures in federal PFAS litigation. The panel rejected Michigan’s argument its state-court case was already well under way, with more than a year of pretrial discovery and millions of pages of documents turned over.
In its motion to remove the case to federal court, 3M said Michigan was also trying to recover money for PFAS spills at military bases that used commercially produced firefighting foam, allowing it to assert a federal contractor defense. The MDL panel agreed.
“Although plaintiffs in their complaint purport to disclaim any liability from AFFF (firefighting foam) contamination, they identified inwritten discovery responses multiple locations at which PFAS contamination from both AFFF and non-AFFF sources is alleged,” the panel concluded.
Michigan, like many other government plaintiffs, hired private lawyers to pursue litigation over PFAS, a ubiquitous chemical that persists in groundwater for years and can be found in the tissue of virtually every person in the U.S. Michigan AG hired Fields and DiCello Levitt, law firms also involved in opioid litigation, to represent the state in exchange for a share of any winnings, in 2019. The fee arrangement gives 20% to lawyers on a recovery up to $100 million, then decreases until they get 10% on more than $400 million.