My Mom would say that, when it comes to PFAS, the Judicial Panel on Multi District Litigation's eyes were bigger than its stomach!

A little over five years ago, the Judicial Panel on Multidistrict Litigation gave Federal Judge Richard Gergel of South Carolina the burden of disposing of any cases “alleg[ing] that AFFF products used at airports, military bases, or certain industrial locations caused the release of PFOA or PFOS into local groundwater and contaminated drinking water supplies.” In re AFFF Prods. Liab. Litig., 357 F.Supp.3d 1991, 1394 (J.P.M.L. 2018).

My Mom would say that the MDL Panel's eyes were bigger than its stomach in attempting to consolidate all of these cases in one Court, meaning that the vision was admirable but impractical.

Judge Gergel has done a heroic job of moving at least some of the hundreds of cases that landed on his docket forward, including presiding over two settlements totaling over $13 billion between 3M and the entitles allegedly responsible for the liability of what was DuPont, on the one hand, and PFAS-contaminated public water supplies from coast to coast on the other.  

But Lara Beaven of Inside PFAS Policy reports that Judge Gergel is becoming much more forthcoming about the pressure that the AFFF MDL is putting on him and counsel for the Defendants.

No matter how much tailoring is accomplished by motion practice, as the Department of Defense is attempting, and no matter how many bellwether trials are scheduled in the hope of promoting further settlements, the simple fact is that the PFAS liability abyss is too vast to be addressed in any one courtroom, or perhaps any number of courtrooms.  It certainly seems to be the case that Judge Gergel is having trouble seeing the light on the other end.

Given all of this, one has to think, as Judge Gergel mused at a hearing respecting the public water supply settlements, that some number of bankruptcy proceedings are going to be the end of many of the AFFF claims pending before Judge Gergel and in other courts.

Given the immenseness of the PFAS liability abyss, the Executive and Legislative Branches of our Federal Government could help by providing some structure to the removing of PFAS from our environment, and the allocation of the astronomical costs being incurred to do so.  President Biden and Congress already allocated $10 billion for drinking water treatment in the Bipartisan Infrastructure Law but that was a drop in the bucket. Meanwhile, while EPA struggles to implement its ambitious PFAS road map, PFAS continue to be released into our environment every day.

What EPA and several states and Judge Gergel have done to address the forever and everywhere chemicals known as PFAS in just a few years is nothing less than extraordinary.  Unfortunately, there is much more to be done and, as seen in Judge Gergel's courtroom on Friday, some of the leading characters in this drama are starting to feel the pressure.