Understanding the Complexity of Product Liability Laws in Context of the AFFF

Product liability laws govern any litigation against product manufacturers across industry verticals. Besides the manufacturer, others involved in the supply chain like the distributor, wholesaler, and retailer can become the liable party.

Federal law requires every product manufacturer to follow strict design standards. This means their products should be effective as well as safe for use. If the product harms its consumers, a lawsuit under product liability can be filed in court.

Every year, thousands of product liability lawsuits are filed. In a 2023 report, it was revealed that around 5,826 product liability claims were made the previous year. One such lawsuit is the AFFF or firefighting foam litigation. In this article, we will discuss the complexity of product liability claims in the context of the aforementioned lawsuit.

How is the AFFF Lawsuit a Product Liability Claim?

To understand the AFFF litigation, we must first know the product. Short for Aqueous Film Forming Foam, AFFF is a firefighting foam used for fires started by liquid fuels. This is why it is a Class B foam. It became popular in the 1960s with companies like the American multinational, 3M.

This foam is made using a group of chemicals that share a strong carbon-fluorine bond – per- and polyfluoroalkyl substances (PFAS). These chemicals, at least those that have been widely studied, are considered to be carcinogenic to humans.

In the early 21st century, firefighters and other military personnel constantly exposed to PFAS through AFFF developed cancer of the kidneys, testicles, bladder, etc. In 2017, they decided to file a lawsuit against PFAS manufacturers. This lawsuit was consolidated into a class-action multi-district litigation (MDL) in 2018.

It was alleged that besides the injuries, the defendants were responsible for misleading marketing tactics. Yes, AFFF was portrayed to be harmless and effective in putting out fast-spreading fires.

The defendants kept firefighters and even the government in the dark despite being aware of the health repercussions. So we see that the firefighting foam lawsuit is filed for a dangerous product against its manufacturers.

When Can a Product Liability Lawsuit Be Filed?

A product liability claim can be made under three circumstances. Let’s look at each of them in light of the AFFF litigation.

• Design defects are essentially an inherent issue with the product even if it was manufactured correctly. If the manufacturer is careless about certain components used to prepare the product, it becomes unsafe from the design phase itself. This is the case with the AFFF lawsuit because the foam was designed using dangerous forever chemicals.
• Manufacturing flaws are present during the creation stage of the product. In other words, manufacturing flaws occur when the manufacturer deviates from the original design, thereby rendering the product dangerous for use.
• Failure to warn regarding the risks involved with the product is a problem. If a product is unsafe in any way, the manufacturer is responsible for warning the consumer about the same. If no alert is given, the manufacturer can be held liable for a failure to warn. This is also something the AFFF litigation involves since the manufacturers never issued any health threats to the firefighting industry.

The Complex Procedure of Proving Product Liability in Court

Now that we’ve understood what a product liability claim is and when it may be filed, let’s look at the complex legal aspects. It may be notoriously difficult to prove a manufacturer’s liability in court unless strong evidence is already present. Let’s understand this procedure using the AFFF litigation as our case in point.

Negligence

This aspect of a product liability claim focuses on the manufacturer’s conduct. Here, the plaintiff’s counsel must prove that the manufacturer failed to show reasonable care in designing, producing, and marketing the product. This became the main cause of consumer injuries.

In the AFFF litigation, plaintiffs have alleged 3M and DuPont’s negligence through the use of dangerous chemicals. According to TorHoerman Law, AFFF not only affected health but also contaminated underground water. So, even municipalities filed a water contamination lawsuit against PFAS manufacturers.

Strict Liability

Strict liability is a doctrine that supports damage recovery without proving negligence. This is essential because the courts cannot expect every consumer to prove the manufacturer’s negligence. Furthermore, consumers cannot be expected to test every product before use to determine if it is dangerous.

Strict liability applied to the AFFF litigation because it met the following three provisions –

• The product already had an unreasonably dangerous design which injured the end user.
• The design defect injured the plaintiffs even when they used the product the way the manufacturer intended.
• The plaintiffs made no substantial changes to the product.

Hence, plaintiffs can recover AFFF lawsuit settlement amounts, be it under personal injury or the water contamination category. 

Timeline of Product Liability Lawsuits

In general, product liability claims can take anywhere between a few months and a few years to reach settlements. It depends on how big the litigation is and how complex. The AFFF litigation has been active since 2017.

Until now, the water contamination cases have been settled. Lawyers are preparing for trials to ensure fair compensation for personal injury cases. The average expected settlement amount would range between $40,000 and $300,000. It is believed that payouts will start by the end of 2025.

Concerning the product, the manufacturer may recall it or make changes to the design/manufacturing process for consumer safety. In the case of the AFFF suit, banning PFAS was the only option in light of their ‘forever’ nature.

3M has promised that it will stop all PFAS production by the year ending 2025. The toxic Class B firefighting foam will be replaced with safer alternatives that do not use fluorine. The non-toxic foam is still in its experimental stages and will soon become widely available.