Water Providers Join MDL Alleging Contaminated Water Sources

Water providers joined an ongoing MDL against manufacturers of aqueous film-forming foam. They allege the toxic chemicals trickled into water sources.

    Jacalyn Crecelius, J.D.

    Written by
    — Updated on September 7, 2021

    Water Providers Join MDL Alleging Contaminated Water Sources

    There’s a phrase in economics known as the tragedy of the commons. It describes scenarios in which individuals’ short-term selfish interests are at odds with long-term group interests and the common good. Water rights are a prime, real-world example of this resource dilemma. This vital resource has been in dispute for much of history. From pesticides in farming to pipelines on sacred land, water continues to make headlines. One such headline is the ongoing multidistrict litigation (MDL) over toxic chemicals seeping into water sources.

    PFAS Contamination Lawsuit Background

    About 75 water providers, as of May 2021, have joined an MDL against various manufacturers of aqueous film-forming foam (AFFF). AFFF is used to extinguish fires caused by chemicals or petroleum at industrial locations such as military bases or airports. AFFF is not only used to suppress those fires but also for frequent firefighter training exercises.

    The sheer volume of use has caused toxic chemicals within AFFF to seep into groundwater supplies. Specifically, AFFF contains per- and polyfluoroalkyl substances (PFAS), which pose serious health risks to those who come in contact. These risks include testicular cancer, kidney cancer, ulcerative colitis, thyroid disease, and preeclampsia.

    This contamination is not new, either. In fact, federal and state regulators have previously set limits on acceptable contaminant levels. Herein lies the plaintiffs’ main concern: when tests show their water exceeds these limits, water providers must foot the bill. That bill certainly adds up, and suppliers do not believe they should be responsible for those costs. As a result, they are seeking damages from AFFF manufacturers. Beginning January 2019, the Federal District Court for the District of South Carolina is currently hearing the MDL.

    Water providers are not the only ones affected by these toxins. Other plaintiffs include personal injury claimants, property owners, tribes, and even states.

    Water providers are so important in this PFAS contamination lawsuit because the court will hear their cases first. Those cases will determine issues common to all classes of plaintiff classes, then overflow into other class claims. Those determinations will largely answer questions of who will join the MDL and how their cases will proceed.

    Expert Specialities Needed

    Attorneys may retain many experts, including health practitioners, throughout this MDL. With such diverse classes, attorneys will need expertise on many fronts. Important expert needs will include chemists, medical doctors, and specialists in various environmental sciences. Attorneys will also need more niche expertise. Examples include surveyors, local government officials, firefighters, and various industrial workers with the most experience using AFFFs. We also might even see familiar faces from similar PFAS-related cases. One example is Philips’ June 2021 voluntary recall of several of its sleep apnea devices and ventilators.

    In other words, attorneys will need a lot of information and insights throughout the present proceedings and beyond. There are almost too many converging topics to count.

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