RICHMOND, Va. (Legal Newsline) - States that crafted lawsuits against 3M over chemicals called PFAS in a way they hoped would keep them out of federal court have lost a key ruling.
A 2-1 ruling on March 7 in the U.S. Court of Appeals for the Fourth Circuit possibly paves the way for defendants to move cases from Maryland and South Carolina state courts to a federal multidistrict litigation proceeding.
That MDL has seen about 10,000 cases consolidated for pretrial purposes, given they all contain similar accusations against similar defendants. Public water systems have scored huge settlements to address PFAS. BASF paid $316.5 million, Tyco $750 million, DuPont $1.2 billion and 3M 10.5 billion.
Private lawyers are earning 8% from these agreements. PFAS are a group dubbed "forever chemicals" because they persist in groundwater and human tissue for years. They are found in firefighting foam and consumer products.
3M has argued its PFAS-containing firefighting foam was designed in accordance with federal contracts to be used on military bases. When sued, 3M argues cases belong in federal court thanks to the federal officer removal statute.
So when Maryland Attorney General Anthony Brown and South Carolina AG Alan Wilson each brought litigation, they filed two cases. One alleged contamination from PFAS at military bases, but the other said it was not demanding damages from PFAS used in the firefighting foam - only in other products.
District courts said this was OK, but the Fourth Circuit agreed with 3M that PFAS from bases attributed to the alleged contamination.
"Though it may not be an 'airtight case on the merits,' it does not have to be, and we conclude that 3M's theory of connection holds sufficient water to establish this element under the federal officer removal statute's broad scope," Judge G. Steven Agee wrote.
"Both States plead general PFAS contamination near military bases where 3M alleges it sold Military (Aqueous Film-Forming Foam). On this record, we have no trouble considering as plausible 3M's allegations that some of the PFAS contamination at issue even in the non-AFFF complaints may come from their Military AFFF production."
Judge Henry Floyd disagreed and authored a dissenting opinion, with concerns the ruling will sweep lawsuits properly in state courts into the federal system.
"As I see it, the court reads the nexus requirement so broadly as to move toward foreclosing state courtrooms to plaintiffs bringing state-law claims against defendants, when those defendants in turn identify even the slightest connection between the claims at issue at work they have performed as government contractors," Floyd wrote.
PFAS are prevalent in consumer products such as food packaging, cookware, clothing, carpets, shoes, fabrics, polishes, waxes, paints, cleaning products, and firefighting foams. They persist in the environment without breaking down easily and can leach into groundwater.
The federal government has set a maximum contaminant level for PFAS, even as groups call the move premature. Much of the research regarding their effect on the human body is disputed.
The MDL handling claims from water districts and personal injury plaintiffs is overseen by South Carolina federal judge Richard Gergel. Consumer class actions have sprung up around the country too, against various defendants - including restaurants.
Many government plaintiffs are represented by private lawyers working on contingency fees.