A lawsuit filed on March 24 in federal court in South Carolina alleges that exposure to aqueous film forming foam (AFFF) caused a Georgia firefighter to develop cancer.
The lawsuit names multiple defendants, including 3M and DuPont, and alleges negligence, battery, inadequate warning, design defect, fraudulent concealment, breach of express and implied warranties, and wantonness. The complaint seeks punitive damages, accusing the defendants of demonstrating “a conscious and outrageous disregard for their safety with implied malice.”
AFFF is a type of firefighting foam which is used to put petroleum-based fires out. It contains per- and polyfluoroalkyl substances (PFAS), which the complaint describes as “toxic.”
PFAS can bind to blood proteins, stay in the body for a long time, and accumulate, building up with each exposure over time, according to the lawsuit, which accuses the defendants of making and selling AFFF despite knowing it was toxic, would enter firefighters’ bodies, and would persist and accumulate there.
Animal testing done by defendants, according to the complaint, had established by 1970 that perfluorooctanoic acid (PFOA), a PFAS, was toxic, and had established by 1990 that PFOA caused testicular tumors in rats, leading to DuPont classifying PFOA as a confirmed animal carcinogen and possible human carcinogen. Additional research by defendants, including at least 3M and DuPont, according to the lawsuit, found by 2000 that PFOA caused testicular, liver and pancreatic cancer in rats.
The complaint argues that when something causes cancer in animals and it is not known how, that something must be assumed to be a possible human carcinogen until it is known how it causes cancer. No known mechanism behind PFAS causing cancer is currently known.
Research and testing done by defendants, according to the lawsuit, had established by 1980 that PFOA and another PFAS, perfluorooctanesulfonic acid (PFOS), can bind to blood proteins and accumulate in the body, persisting there for a long time.
By 1990, defendants, including at least DuPont, according to the complaint, were aware that their workers exposed to PFOA saw elevated cancer rates, and additional research and testing done by 2010, done by at least 3M and DuPont, also found elevated cancer rates in workers exposed to PFOA.
Defendants in the lawsuit at some point, according to the complaint, stopped using certain PFAS after being asked to by the United States Environmental Protection Agency, switching to newer PFAS, including “short-chain PFAS.” Defendants in the lawsuit, according to the complaint, are aware that short-chain PFAS can also accumulate in the body and cause testicular, liver and pancreatic cancer in rats.
An independent science panel called the C8 Science Panel published a report in 2012 which stated they found a “probable link” between exposure to just 0.05 parts per billion of PFOA in drinking water for one year, testicular cancer and kidney cancer.
PFAS, according to the complaint, are found in 99% of the United States population. The lawsuit argues there is no acceptable level of PFAS in human blood.
The complaint argues that defendants in the lawsuit repeatedly argue against the validity of scientific evidence of the dangers of PFAS, yet “knowingly, willfully, purposefully, intentionally, recklessly, and/or negligently refuse to fund or conduct any scientific study” which could produce data valid enough for their stated standards.
The lawsuit seeks to recover damages based on an allegation of negligence, or the failure to be reasonably careful to prevent harm from occurring. The complaint argues the defendants had a duty of care to be reasonably careful to prevent PFAS in AFFF from entering, persisting in and accumulating in the blood of people, and failed in this duty.
The lawsuit argues that the defendants knew PFAS could accumulate in and cause harm to people, but proceeded to act negligently, causing the plaintiff to develop cancer.
The complaint seeks damages based on a battery accusation, arguing that the defendants failed to ask for or receive permission or consent from the plaintiff to allow PFAS to enter and accumulate in his body. This entry and accumulation, according to the lawsuit, is an unlawful, offensive and harmful physical invasion of the plaintiff which unreasonably interferes with his use and possession of his body.
Inadequate warning is alleged by the complaint, which argues the defendants knew or should have known that AFFF exposure was harmful to human health and that exposure to AFFF was likely based on the way they were making and selling AFFF.
The defendants, according to the lawsuit, failed to warn that PFAS would enter and accumulate in the body where they would then cause harm.
The complaint argues that AFFF is defective by design because it is toxic, making it unreasonably dangerous. Defendants, knowing that it was toxic, according to the lawsuit, could have made and sold alternative formulations of the product which did not contain toxic PFAS, and these formulations were “available, practical, and technologically feasible.”
The lawsuit accuses defendants of fraudulently concealing the toxic nature of PFAS from consumers, knowingly making false claims about the safety of AFFF in order to convince people to purchase and use AFFF.
The defendants, according to the complaint, expressly and impliedly warranted that AFFF is safe to use as directed when, in fact, it is not because it can cause cancer.
The wantonness allegation in the complaint argues that the actions of the defendants “were willful and wanton and exhibited a reckless disregard for the life, health, and safety of” AFFF users.
