We previously wrote regarding the presiding Judge’s ruling in the PFAS MDL requesting the parties to select three bellwether cases for trial in 2023 and to agree on the order in which they will be tried. The parties agreed that the Stuart (FL) v. 3M, et al. case would be the first case tried, but they could not agree on the order for trial of the next two cases. At a Status Conference recently, the Judge accepted the parties’ proposal for the first bellwether case for trial, but also asked the parties to consider discovery issues and trial preparations for the multitude of PFAS personal injury cases on the docket.

While the MDL is being closely watched by anyone interested in PFAS litigation, the issues to date have focused on water utility cases and scientific issues. The shift of focus to PFAS personal injury cases is a very significant move that will shape the future of the national products liability litigation for years to come.

PFAS Personal Injury Litigation

For years, we have discussed the issues that need further clarity before PFAS personal injury cases can explode to the level of other toxic torts such as asbestos, benzene or glyphosate. While the science on PFAS and connections to effects on human health are developing exponentially year over year, the critical issues that have thus far prevented significant personal injury litigation are consensus on health impacts that are definitively linked to certain types of PFAS, as well as the dose necessary to cause those health impacts.

The MDL Judge’s ruling urged parties to agree on a discovery schedule for the PFAS personal injury cases on the docket and to focus discovery efforts on PFAS exposures an the links to human health, using the C8 Science Panel findings as a starting point. By the end of October 2022, the parties must jointly agree on five cases that are appropriate for discovery using the C8 Science Panel as a foundation. The Judge indicated that he does not wish to have cases involving high cholesterol as the injury type be among the first five cases selected. He suggested focusing instead on the various forms of cancer that the C8 Science Panel linked to PFOA exposure. The Judge also suggested that he would like to move discovery along in the PFAS personal injury cases to such a degree that one of them possibly goes to trial after the first bellwether trial in 2023.

Litigation Impacts

The start of discovery in PFAS personal injury cases is a significant development in the PFAS litigation world we will closely monitor. Expert depositions, motions regarding expert testimony and the Court’s rulings on the same will not only shape how the MDL litigation proceeds, but will also have significant impacts on the development of personal injury cases in each of the fifty states.