Cities With Water Utilities May Participate in PFAS Litigation

May 1, 2023

Cities should work with their city attorney to determine if they should register to be part of litigation to recover costs due to contamination of public water supplies.

A Multidistrict Litigation (MDL) set in the United States District Court of South Carolina is getting a lot of attention lately. The South Carolina court is handling over 2,500 cases from across the country involving aqueous film-forming foams (AFFFs) and PFAS (perfluoroalkyl and polyfluoroalkyl substances) contamination.

This litigation is known as MDL-2873 and currently includes hundreds of local governments suing to recover costs due to contamination of public water supplies. Other plaintiffs in the MDL are individuals with traditional product liability cases alleging that exposure to AFFF caused cancer. Although many different companies made and sold products containing PFAS, 3M, and DuPont are the primary defendants in this litigation.

Potential impact to League members

Minnesota Rural Water Association (MRWA) is partnering with the National Rural Water Association (NRWA) to educate cities with water utilities about MDL-2873. Many League members are also members of MRWA. They have received this information and are now asking whether they should register to be part of the “NRWA PFAS Cost Recovery Program.” By “registering,” a water utility will be connected with a law firm serving as co-lead plaintiff counsel in MDL-2873. The city will answer a few questions and then decide if it wants to join this litigation.

In other words, the city will need to decide to retain Napoli Shkolnik PLLC for participation as a party in the MDL, the benefit of which could potentially give it priority or other unique status in any settlement to recover current and/or future costs associated with PFAS testing, treatment, and remediation. However, if a city chooses not to register, this does not necessarily mean it will be excluded from accessing settlement funds in the future. Even cities with no PFAS detected, but with later contamination issues, may have access to funds because the exact terms of any settlement are still being figured out.

Time is of the essence

Water utilities are encouraged to work with their city attorneys to decide what is best for them.  However, timing may be important because water provider cases pending in MDL-2873 have been selected as bellwether cases, meaning they will be tried first.

The first bellwether test trial is scheduled for June 5, 2023, in the case of the City of Stuart v. 3M Co. et al. The City of Stuart case involves claims that AFFF contaminated Stuart’s municipal water system. Plaintiff attorneys believe that the pressure of this trial may trigger a global settlement deal with at least some of the defendants. They also believe a settlement could create a tiered system in which claims are ranked into tiers based on factors like the strength of a plaintiff’s case and the sequence of when a plaintiff joined the MDL. It is speculated that cases ranked in the highest tier will get bigger settlement payout offers compared to those in lower tiers.

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