We previously provided an update on the AFFF MDL settlements by DuPont and 3M of the hundreds of water utility claims on the docket. After a final fairness hearing with the Court in December 2023, the DuPont proposed settlement of $1.185 billion was approved by the Court earlier in 2024. Now, however, a water utility out of California has filed an appeal challenging the DuPont settlement in the Fourth Circuit Court. The appeal was filed by the Metropolitan Water District of Southern California, although Plaintiffs quickly filed a pleading with the Court arguing that when the district opted out of the DuPont settlement, it waived its rights to thereafter appeal a finalized settlement. In addition, Plaintiffs allege that the appeal is a maneuver without merit that is intended only to delay and attempt to discredit the settlement agreement, which resulted in Plaintiffs asking for a security bond from the water utility of up to $61 million. Regardless, the appeal may delay the implementation of the DuPont settlement by at least several months, if not more than a year.

Meanwhile, the AFFF MDL is also moving forward down several paths with the personal injury claims on the docket. A process was already underway to determine an appropriate bellwether trial case for the so-called Leach injuries. The Leach injuries are those that the C8 Science Panel found associations for between PFOA and impacts on human health, which includes kidney cancer, testicular cancer, hypothyroidism/thyroid disease and ulcerative colitis. Discovery has already begun with respect to 25 plaintiffs that have Leach related diseases.

Now, the Court is turning its attention to two other cancer types alleged in a number of AFFF MDL cases – liver cancer and thyroid cancer. The reason for an additional set of potential bellwether claims being carved out for litigation is due to the fact that Plaintiffs represented to the Court at a recent Status Conference that there are approximately 4,600 Leach related plaintiffs’ claims on the MDL and approximately 5,000 other cancer claims on the MDL. The Court approved the start of the new bellwether track for these claims and issued an Order setting an April 3, 3034 deadline for plaintiffs to turn over all peer reviewed articles and studies that support a link between PFAS and thyroid cancer or liver cancer. Defendants will have until May 1 to turn over to plaintiffs all studies that dispute those associations. The Parties have a deadline of May 15, 2024 to present the Court a package of all of the studies in a manner that is efficient for the Court to digest what is likely to be voluminous scientific materials. Within 60 days of the May 15, 2025 deadline, the Court will hold a Science Day, which is an informal Court proceeding (which is not transcribed) that allows each side to present a few experts on the subject of causation. They will testify as they would in any other Court proceeding, although in the Science Day, the Judge will conduct questioning of his own when he wishes.