CHARLESTON, S.C. (Legal Newsline) - Companies that made firefighting foam that can release trace amounts of the “forever chemical” PFAS are hoping a federal judge will dismiss thousands of lawsuits against them based on the government contractor defense, or as one defense lawyer puts it, “the government made me do it.”
Central to their arguments before U.S. District Richard M. Gergel in South Carolina are federal laws and regulations requiring airports to use foam that can release PFAS and PFOS compounds into the surrounding environment because they are the only way to control burning aviation fuel. The U.S. Defense Department adopted MIL-F-24385 for “Aqueous Film Forming Foam,” or AFFF, in 1969 and a year later the Federal Aviation Administration required it for civilian airports.
In a motion to dismiss federal multidistrict litigation, manufacturers including 3M, DuPont and BASF say that while MIL-F-24385 didn’t mention PFAS or PFOS it specified “fluorocarbon surfactants” that defendants say left them no choice but to use chemicals that could release PFAS. Flourocarbon molecules not only transform water into an oxygen-blocking film but they are extremely strong and persist in the ground and human tissue for decades.
3M stopped producing PFAS-releasing firefighting foam in 2000 and the federal government amended the military specification in 2019 to delete the word “fluorocarbon.” But a Naval Research Laboratory official later described that as a “political move” since there is still no alternative to fluorocarbon-based firefighting foams.
“The MilSpec indisputably expresses the military’s discretionary judgment that MilSpec and AFFF must be made with fluorocarbon surfactants that have specific properties and capabilities,” the defendants say in their motion to dismiss.
“The defense is basically `the government made me do it. I didn’t have a choice. There was no wiggle room,'" said Brian Gross, a partner with MG + M who defends corporations in toxic-tort litigation.
The government contractor defense works sometimes, perhaps most notably in a 2008 decision by the Second Circuit Court of Appeals dismissing lawsuits over the defoliant Agent Orange used in the Vietnam War. Veterans sued Dow Chemical and other manufacturers, blaming Agent Orange for various illnesses including cancer. But the Second Circuit affirmed the contractor defense, ruling that tort lawsuits are barred where the government provides “reasonably precise specifications” for how a product is to be made.
The U.S. Supreme Court set out the standard for the government contractor defense in Boyle v. United Technologies, a 1988 decision upholding the dismissal of a lawsuit over an allegedly defective helicopter escape system. The defense applies when the government sets out reasonably precise specifications and the contractor complies with them and informs the government of any risks it is aware of.
The foam manufacturers are being sued by thousands of individuals as well as water utilities that have been required to install expensive filtration equipment in part because they, too, are being sued over PFAS contamination. In their brief opposing the government contractor defense, the plaintiffs describe the sale of firefighting foam as “one of the most egregious examples of corporate malfeasance in American history” that spread PFAS everywhere from mother’s milk to the summit of Mount Everest.
The defendants say the government knew all about the risks of fluorocarbon-based firefighting foam and specified it anyway. 3M began researching fluorocarbons in the 1940s and patented a method for producing them in 1950, but by the early 1960s the military was testing them for firefighting foam and the Naval Research Laboratory applied for a patent on using flourosurfactants in AFFF in 1963. The government performed numerous studies on environmental impact, biodegradability and the impacts on marine life, lab animals and humans in the years after that, the defendants say, clearly establishing the third prong of the test in the Boyle decision.
The plaintiffs reject that argument, saying 3M’s scientists were aware of PFAS and other compounds spreading to the general population by the 1970s but suppressed the information instead of giving it to the government. They say a jury, not the MDL judge, must decide whether the government knew the true risks of groundwater contamination from firefighting foam.
“When `the rest of the story’ is told, the government’s knowledge, especially as it varies over time, is demonstrably a question of fact for the jury that cannot be determined without weighing facts and credibility,” they say in a Dec. 22 brief opposing dismissal.
One strike against the foam makers is unlike with Agent Orange or United Technologies, they can’t point to a government contract specifying how to make their products. The lack of a contract has tripped up 3M in litigation over noise-controlling earplugs it designed and sold to the military, which plaintiffs now accuse of having a defective design. Plaintiff lawyers navigated around the contractor defense by arguing 3M came up with the design and then convinced the military to buy it. (3M said the government then modified its design but the MDL judge rejected that argument.)
Lawyers have also maneuvered around the defense in some asbestos cases in which the government required asbestos-containing products in ships and aircraft, by arguing the products were still “defective” because they didn’t come with a warning label.
Gross said the foam makers might have a more powerful argument because their customers – military and civilian airports – not only were required to buy fluorocarbon-based foam but until last year were required by federal law to discharge it several times a year for training exercises and to demonstrate they have the proper water-foam ratio. They still are required to use it to fight actual fires.
“They don’t have a choice,” Gross said. “To the extent that there is migration of PFAS from the firefighting foam, these airports didn’t have a choice but to use this PFAS-containing firefighting foam.”
One of the reasons PFAS litigation has flourished is technology that can detect the molecules in concentrations of parts per trillion. Lawyers have even proposed a class action on behalf of every adult in America based on the fact virtually everyone has traces of PFAS in their tissue.
But that could prove a double-edged sword for individual plaintiffs because they have to prove specific causation, or that a specific manufacturer’s chemical caused their injuries, Gross said.
“PFAS is ubiquitous -- there are numerous potential sources of exposure,” he said. “It makes specific causation difficult.”