Amidst mounting per- and polyfluoroalkyl substances (PFAS) regulation and litigation, the Multidistrict Litigation (MDL) judge overseeing the federal litigation related to firefighting foam has scheduled a “Science Day.”
This Science Day will provide a first look at the causation battle we expect to see emerge in PFAS personal injury litigation.
Aqueous Film-Forming Foam (AFFF), commonly known as “firefighting foam,” has been used in fighting liquid-fuel fires for decades. In the past several years, thousands of lawsuits alleging injury caused by AFFF containing PFAS have been filed across the country. The alleged injuries in these lawsuits range from several types of cancer to ulcerative colitis and preeclampsia.
The approximate 10,000 federal personal injury lawsuits have been consolidated into an MDL overseen by Judge Richard M. Gergel in the District of South Carolina. On February 11, Judge Gergel issued an order setting a “Science Day” for June 6, 2025. The Science Day will include expert presentations on the alleged association of AFFF with liver and thyroid cancer. Prior to the Science Day, the parties will jointly submit peer-reviewed articles on the topic to the court.
The Science Day will give the court an opportunity to familiarize itself the pivotal issue affecting PFAS personal injury litigation: is there a causal relationship between PFAS and certain diseases?
As we have previously discussed, proving causation in PFAS litigation is likely to present a major obstacle for the plaintiffs’ bar. The scientific community has yet to identify a signature disease associated with PFAS, like mesothelioma in the context of asbestos, for example. Environmental carcinogens, genetic predispositions, lifestyle factors, or even PFAS contained in water or other products further muddy the connection between a particular disease and any one product. The Science Day may preview how plaintiffs will attempt to overcome these obstacles in the coming years.
Notably, Judge Gergel’s order makes clear that the issue of causation is not being litigated just yet. Only the judge will ask questions of the experts, who will present not testify. Testimony, examination, cross-examination, and argument on the issue will come later.
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