3M Loses U.S. Contractor Immunity Argument in PFAS Case (1)

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3M Co. failed to convince the federal judge presiding over the PFAS mass tort litigation that the company is immune from liability for the alleged toxic substance damages as a government contractor.

That is up to the jury to decide, Judge Richard M. Gergel said Friday in a ruling denying the manufacturer’s motion for summary judgment on the matter.

Companies such as 3M, Chemguard Inc., Kidde-Fenwal Inc., National Foam Inc. and Dynax Corp. have been sued for damage allegedly caused by the chemicals, which are found in fast food containers, cosmetics, furniture and other products, more than 6,400 times since 2005.

Chemicals cannot break down naturally. They accumulate in water, on the ground and in the blood and can have serious effects on health and the environment.

This multi-district litigation chaired by Gergel is a pre-trial consolidation of more than 2,000 cases brought over the use of PFAS in aqueous film-forming foams (AFFFs), such as fire-fighting foams developed by 3M.

3M argued that because it developed the marine foam to fight liquid fuel fires, it cannot be held liable under a government contractor defense, which limits manufacturers’ liability. when producing military products to government specifications.

“While we are disappointed with the court’s decision, this decision is made in summary judgment proceedings in which the court is required to consider the facts in the light most favorable to the plaintiffs,” the court said. company in an e-mailed statement.

“We believe that the evidence at trial will demonstrate that 3M has met the criteria for defense of the government contractor in the ongoing multi-district AFFF litigation,” he said.

Gergel, who sits in U.S. District Court for the District of South Carolina, found there were factual issues about the government’s knowledge of the risks and denied 3M’s immunity request.

Gergel said records show that the government did not know PFAS was present in AFFF until 2000, and that 3M conducted more than 1,000 internal studies on the presence of PFAS and its toxicity, but did not report it. ‘has never disclosed publicly.

Records also show that 3M lied to the public about the presence of PFAS in people’s blood as early as the 1970s, the judge said.

A Bloomberg Intelligence analysis found that 3M’s total liabilities could be as high as $30 billion.

3M is represented by Wilkinson Stekloff LLP, Mayer Brown LLP, Campbell Conroy & O’Neil PC, Gunster Yoakley & Stewart PA and Goldman Ismail Tomaselli Brennan & Baum LLP.

The case is In Re Aqueous Film-Forming Foams Prod. Lib. Litig., DSC, n°2:18-mn-02873, 09/16/22.

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