UNITED STATES JUDICIAL PANEL on MULTIDISTRICT

UNITED STATES JUDICIAL PANEL

MULTIDISTRICT LITIGATION

IN RE: AQUEOUS FILM-FORMING FOAMS

PRODUCTS LIABILITY LITIGATION MDL No. 2873

TRANSFER ORDER

Before the Panel:* We are presented with two motions in this docket. First, 3M Company

moves under 28 U.S.C. § 1407(c) to transfer four actions pending in the Northern District of

Alabama and listed on Schedule A to the District of South Carolina for inclusion in MDL No.

2873. Plaintiffs in the Alabama actions oppose this motion. Second, forty-six insurer defendants

move under Panel Rule 7.1 to vacate our order that conditionally transferred the Western District

of Wisconsin Bouvet action listed on Schedule A to MDL No. 2873. A forty-seventh insurer joins

the motion. Defendants Tyco Fire Products LP and Chemguard, Inc., oppose the motion to vacate.

Their opposition is joined by the Bouvet plaintiffs.

Plaintiffs in the four Alabama actions allege they suffered personal injury caused by the

discharge of per- or polyfluoroalkyl substances (PFAS) from manufacturing facilities in Decatur,

Alabama, operated by defendants 3M, Toray Fluorofibers (America), Inc., and Daikin America,

Inc. Plaintiffs disclaim any liability for injuries attributable to the manufacture, use, or disposal

of PFAS-containing aqueous film-forming foams (AFFFs). When we initially centralized this

litigation, we excluded four actions alleging similar PFAS contamination of the Tennessee River

from the same manufacturing facilities. See In re Aqueous Film-Forming Foams Prods. Liab.

Litig., 357 F. Supp. 3d 1391, 1396 (J.P.M.L. 2018).

We have consistently held that a party seeking transfer of an action that does not on its face

raise claims relating to the use or disposal of AFFF bears a “significant burden” to persuade us

that transfer is appropriate. Order Denying Transfer at 2, MDL No. 2873 (J.P.M.L. Dec. 18, 2019),

ECF No. 541. 3M has satisfied that burden here. 3M argues that it manufactured AFFF at its

Decatur facility and therefore these actions fall within the scope of the MDL. 3M has proffered

evidence showing that AFFF compliant with the U.S. Military Specification for AFFF was

manufactured at the Decatur plant from at least 1972 to 1990. Plaintiffs do not directly challenge

this evidence, but instead contend that 3M has not shown that this AFFF contributed to the alleged

PFAS contamination of the Tennessee River. Such a showing of the respective contribution of

AFFF and non-AFFF sources to PFAS contamination is not required to determine the merits of

* Judges Nathaniel M. Gorton and David C. Norton did not participate in the decision of this

matter.

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transfer to the AFFF MDL, and we regularly transfer actions involving both AFFF and non-AFFF

claims.

See Transfer Order at 2, MDL No. 2873 (J.P.M.L. June 5, 2019), ECF No. 446 (“Plaintiff

suggests that our initial centralization order limited this MDL to cases alleging only contamination

from AFFFs, but our order merely excluded from the MDL actions that did not contain any

allegations relating to AFFFs. That the Town alleges additional sources of contamination is no

obstacle to transfer.” (internal citation omitted)). It is sufficient that 3M has shown that AFFF was

manufactured at its Decatur facility and that these actions therefore will share numerous factual

questions with the actions pending in the MDL. See Transfer Order at 1–2, MDL No. 2873

(J.P.M.L. Apr. 1, 2021), ECF No. 960 (transferring Aqua Pennsylvania, despite plaintiff’s

argument that its claims related only to PFAS, because defendant National Foam manufactured

AFFF at one of the two facilities identified in the complaint).

With respect to our prior order that declined to transfer several actions involving the

Decatur facilities, no party at that time argued that AFFF issues were presented in those actions.

Indeed, the parties uniformly referred to the actions as “non-AFFF” actions, as 3M at the time was

attempting to expand the litigation beyond AFFFs to encompass all PFAS issues, and the Panel

adopted this terminology. See In re AFFF, 357 F. Supp. 3d at 1392. This prior order therefore

does not prevent us from concluding that the actions before us now involve AFFF issues and that

transfer is appropriate.

Turning to the Western District of Wisconsin Bouvet action, plaintiffs allege they were

exposed to PFAS-contaminated groundwater at various military bases where AFFF was used, and

that this exposure injured them or their decedents. Plaintiffs assert personal injury claims against

AFFF manufacturer defendants as well as “direct action” claims against the manufacturers’

liability insurers. Some 46 of these insurers argue that transfer is inappropriate because the AFFF

liability claims and the insurance claims are fundamentally different, such that transfer will

complicate management of the MDL and will not enhance convenience, justice, or efficiency.

Plaintiffs, though, raise the same AFFF claims against AFFF manufacturers that are at issue

in thousands of actions pending in the MDL. Bouvet therefore shares numerous common questions

of fact with the actions in the MDL. The addition of the “direct action” claims against the insurers

does not alter this conclusion. “Section 1407 does not require a complete identity or even a

majority of common factual issues as a prerequisite to transfer.” In re Ins. Brokerage Antitrust

Litig., 360 F. Supp. 2d 1371, 1372 (J.P.M.L. 2005).

Indeed, many, if not most, of the actions pending in the MDL likely would not have satisfied a

requirement that the parties seeking transfer demonstrate even a rough percentage of the alleged

PFAS contamination in each action attributable to AFFF versus non-AFFF products.

Plaintiffs cite to various Panel orders in which we declined to transfer actions based on

speculation that AFFF may have contributed to the alleged PFAS contamination. See, e.g., Order

Denying Transfer at 1–2, MDL No. 2873 (J.P.M.L. Mar. 27, 2020), ECF No. 620. Unlike those

actions, here 3M has established that AFFF was manufactured at the Decatur facility that plaintiffs

identify in their complaints as a source of the PFAS discharges that allegedly caused them injury.

Those prior orders are thus inapposite.

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Even focusing solely on the “direct action” claims, transfer of Bouvet remains appropriate.

We generally have declined to transfer insurance coverage disputes to products liability MDLs

where there will be little overlap with the discovery in the liability actions. See, e.g., In re Chinese-

Manufactured Drywall Prods. Liab. Litig., MDL No. 2047, 2010 WL 11747797, at *1 (J.P.M.L.

June 15, 2010) (denying transfer where insurance coverage issues presented “strictly legal

questions which require little or no centralized discovery”). “Where, however, such actions

require and rely on the same factual discovery as the already-centralized actions, transfer may be

warranted.” In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mex., on Apr. 20,

2010, 764 F. Supp. 2d 1352, 1353 (J.P.M.L. 2011). Here, the potential liability of the AFFF

manufacturer defendants in Bouvet will drive the “direct action” claims against the insurer

defendants—which, after all, are brought not by the AFFF manufacturers, but by the plaintiffs

seeking compensation for their exposure to PFAS stemming from AFFF use or disposal. Cf.

Biggart v. Barstad, 513 N.W.2d 681, 683 (Wis. Ct. App. 1994) (holding that Wisconsin direct-

action statute “predicates the liability to which an insurer is exposed on the liability of the

insured”).

The course of discovery in Tyco’s South Carolina coverage action also suggests that

discovery in Bouvet will overlap with that in the MDL. See Tyco Fire Prods. LP v. AIU Ins. Co.,

C.A. No. 2:23-02384 (D.S.C.). The insurers in that action have sought testimony on numerous

factual matters central to the MDL, such as Tyco’s knowledge of the health effects and

environmental effects of PFAS, as well as its participation in industry groups relating to AFFF and

PFAS. Several deponents in that coverage action purportedly were involved in product

development, product stewardship, sales, or other operational roles relating to AFFF.

This

suggests that transfer will yield significant efficiencies with respect to discovery and pretrial

proceedings.

Transfer of Bouvet is unlikely to complicate management of the MDL. The transferee court

already presides over coverage claims by Tyco and BASF (both AFFF manufacturers) against their

respective insurers. In an order denying a motion to dismiss Tyco’s South Carolina coverage

action, the transferee court emphasized the connections between the coverage claims and the

liability claims in the MDL and concluded that “[m]aintaining the coverage litigation with the

court responsible for managing the MDL promotes and furthers the purposes of centralizing

pretrial proceedings in a transferee court under 28 U.S.C. § 1407.” See In re AFFF, C.A. No.

2:18-mn-02873, 2023 WL 6846676, at *8 (D.S.C. Oct. 17, 2023).

Tyco and Chemguard, in their opposition to the motion to vacate, attach various written discovery

requests and deposition notices that demonstrate the overlap with respect to factual issues and

discovery. See Resp. in Opp. to Mot. to Vacate CTO, MDL No. 2873 (J.P.M.L. filed Mar. 20,

2024), ECF No. 2458. For instance, the insurers have identified potential witnesses as likely to

have relevant knowledge on subjects that are also at the heart of the MDL cases, including “Tyco’s

manufacturing and sales of AFFF”; “Tyco’s knowledge of chemicals in its product which contain

and/or degrade into PFAS”; and “Tyco’s knowledge, expectation, and/or intention that AFFF

and/or PFAS are potentially harmful to human health and/or the environment.” Resp. to Interrogs.

at 4, MDL No. 2873, ECF No. 2458-5.

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Accordingly, after considering the argument of counsel, we find that the actions listed on

Schedule A involve common questions of fact with the actions transferred to MDL No. 2873, and

that transfer under 28 U.S.C. § 1407 will serve the convenience of the parties and witnesses and

promote the just and efficient conduct of the litigation. In our order centralizing this litigation, we

held that the District of South Carolina was an appropriate Section 1407 forum for actions in which

plaintiffs allege that AFFF products used at airports, military bases, or certain industrial locations

caused the release of perfluorooctane sulfonate and/or perfluorooctanoic acid (types of PFAS) into

local groundwater and contaminated drinking water supplies. The actions in the MDL share

factual questions concerning the use and storage of AFFFs; the toxicity of PFAS and the effects

of these substances on human health; and these substances’ chemical properties and propensity to

migrate in groundwater supplies. See In re AFFF, 357 F. Supp. 3d at 1394. The actions on

Schedule A will share common questions of fact with the AFFF actions in the MDL and will

benefit from inclusion in the centralized proceedings.

IT IS THEREFORE ORDERED that the actions listed on Schedule A are transferred to the

District of South Carolina and, with the consent of that court, assigned to the Honorable Richard

M. Gergel for coordinated or consolidated pretrial proceedings.

PANEL ON MULTIDISTRICT LITIGATION

Karen K. Caldwell

Chair

Matthew F. Kennelly Roger T. Benitez

Dale A. Kimball Madeline Cox Arleo

Case MDL No. 2873 Document 2679 Filed 06/07/24 Page 4 of 5

IN RE: AQUEOUS FILM-FORMING FOAMS

PRODUCTS LIABILITY LITIGATION MDL No. 2873

SCHEDULE A

Northern District of Alabama

COWART, ET AL. v. 3M COMPANY, INC., ET AL., C.A. No. 5:24−00060

BUTLER, ET AL. v. 3M COMPANY, INC., ET AL., C.A. No. 5:24−00069

CARTER, ET AL. v. 3M COMPANY, INC., ET AL., C.A. No. 5:24−00070

WHITAKER, ET AL. v. 3M COMPANY, INC., ET AL., C.A. No. 5:24−00071

Western District of Wisconsin

BOUVET, ET AL. v. THE 3M COMPANY, ET AL., C.A. No. 3:24−00041

Case MDL No. 2873 Document 2679 Filed 06/07/24 Page 5 of 5