In re Aqueous Film-Forming Foams Prods. Liab. Litig.

In re Aqueous Film-Forming Foams Prods. Liab. Litig.

Opinion

ORDER AND OPINION

Before the Court is Defendants' motion for summary judgment on the government contractor immunity defense. (Dkt. Nos. 1965, 2346, 2347, 2348).¹ For the reasons set forth below, the motion is denied.

I. Factual and Procedural Background

This multidistrict litigation ("MDL") concerns the presence of PFOA (perfluorooctanoic acid) and PFOS (perfluorooctane sulfonic acid), both types of per- and poly-fluoroalkyl [*8]  substances ("PFAS"), in aqueous film forming foams ("AFFF"). AFFF products, manufactured by Defendants, were initially designed to deal with potentially catastrophic fires aboard military aircraft carriers and were subsequently widely used on military bases, airports, and in fire fighter training programs.² Plaintiffs allege that the AFFF products at issue in this litigation contain PFOA and PFOS, are harmful to human health and the environment, and constitute defects of AFFF.³

It is important to understand at the outset that PFOA and PFOS represented a new class of man-made⁴ chemical compounds, known as C8 chemistry, and until recent years the government and the scientific community working outside of the companies manufacturing these chemicals had a very limited understanding of the properties of C8 chemistry or its potential risks to human health and the environment. As set forth below, the record before the Court, viewed in a light most favorable to the Plaintiffs—the nonmoving parties in this summary judgment motion—demonstrates that the Defendants, as manufacturers of C8-based products at issue in this litigation, had significantly greater knowledge than the government about the [*9]  properties and risks associated with their products and knowingly withheld highly material information from the government.

In the 1950s and 1960s the Navy, led by the Naval Research Laboratory ("NRL"), sought to develop a new type of firefighting foam in response to devastating shipboard fires. See, e.g., (Dkt. No. 1967-2 at 5); (Dkt. No. 1967-5 at 2-8). In 1969 the Navy, through the Naval Sea Systems Command ("NAVSEA"), promulgated a MilSpec for AFFF titled Mil-F-24385. (Dkt. No. 1966-1) (1969 MilSpec). Since 1969, NAVSEA has administered the MilSpec on behalf of the Department of Defense ("DoD"). (Dkt. No. 1966-15, Resp. 7). NAVSEA has amended or revised the MilSpec a dozen times between 1969 and 2020. (Dkt. No. 1966-1 through Dkt. No. 1966-13) (AFFF MilSpecs). The current version of MIL-F-24835—MIL-PRF-24385F(SH)—specifies the requirements of MilSpec AFFF today. (Dkt. No. 1966-13) (2020 MilSpec). On behalf of NAVSEA, the NRL tests eligible AFFF based on requirements set forth in the MilSpec. (Dkt. No. 1965-1 at 13); (Dkt. No. 2063 at 10). Any product that meets the NRL's MilSpec testing requirements is then listed on the Qualified Product Listing ("QPL"). A product listed on the [*10]  QPL is eligible for military procurement. From the 1969 MilSpec until the 2019 revision, the MilSpec required contractors to use "fluorocarbon surfactants" in their product.⁵ In 2019, the Navy issued a new MilSpec, (Dkt. No. 1966-12), which removed the requirement that MilSpec AFFF contain fluorocarbon surfactants, and which set at 800 parts per billion ("ppb"), the maximum concentrations of PFOA and PFOS in the concentrate. At the time of the adoption of the first AFFF MilSpec in 1969, there were at least hundreds of different types of fluorocarbon surfactants.

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