Lawsuit claims man developed skin cancer because of firefighting foam exposure

by Jeffrey Nadrich Managing Partner, Nadrich & Cohen, LLP

A lawsuit filed on October 5 in federal court in South Carolina claims that a Texas man was diagnosed with skin cancer “as a result of exposure” to firefighting foam. The complaint names multiple firefighting foam manufacturers as defendants.

The Texas man was regularly exposed to aqueous film forming foam (AFFF) in training and while extinguishing fires while working as a firefighter, according to the complaint.

Aqueous film forming foam

AFFF is a type of firefighting foam which is used for extinguishing petroleum-based fires. AFFF contains the per- and polyfluoroalkyl substances (PFAS) perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS).

The complaint states that AFFF is “associated with a wide variety of adverse health effects in humans,” claiming that it has been linked to testicular cancer, kidney cancer, liver cancer, pancreatic cancer, prostate cancer, lymphoma, leukemia, thyroid disease, bladder cancer and infertility.

The complaint notes that “by at least the end of the 1960s,” AFFF was shown to have adverse health effects on lab animals and was shown to persist in the environment.

AFFF was known to bind to blood proteins and persist and accumulate in the human body by at least the end of the 1970s, according to the complaint.

The complaint states that by at least the end of the 1980s, AFFF makers have known that:

• PFOA caused testicular tumors in rats, leading DuPont to internally classify PFOA as a confirmed animal carcinogen and possible human carcinogen

• There was no, and to this day there is still no known mechanism behind PFOA causing testicular tumors

• Scientific principles mandate that something that causes cancer in animals without a known mechanism behind it must be assumed to present a cancer risk to humans

• Elevated cancer incidence was seen in DuPont workers exposed to PFOA, but DuPont failed to disclose this

• AFFF makers including at least 3M and DuPont knew that PFOA and PFOS can enter, persist and accumulate in the human body

The complaint claims that AFFF makers knew by at least the end of the 1990s that PFOA caused three types of tumors in rats.

The complaint states that 3M and DuPont both saw elevated cancer incidence in workers exposed to PFOA by at least 2010.

The complaint notes that the “C8 Science Panel” publicly announced “in the 2010s” that being exposed to a mere 0.05 parts per billion of PFOA was probably linked to kidney cancer and testicular cancer, yet AFFF makers “repeatedly assured and represented” that “PFAS in human blood at the levels found within the United States presents no risk of harm.”

The complaint claims that PFAS have been clinically demonstrated to be in the bodies of 99 percent of the current United States population.

Lawsuit claims AFFF makers knew about cancer risk

The lawsuit claims that AFFF makers knew about the cancer risk associated with AFFF yet failed to warn the public about this, seemingly implying this decision was profit-driven.

“Defendants knew their customers warehoused large stockpiles of AFFF… even after Defendants fully understood the toxicity of PFAS… Defendants concealed the true nature of PFAS,” the complaint states, seemingly implying AFFF makers wanted to avoid a costly recall.

The complaint claims that AFFF makers “have known of the health hazards associated with AFFF… for decades and that… their intended and/or common use would harm human health.”

“Information regarding AFFF and its compounds were readily accessible to each of the above referenced Defendants for decades because each is an expert in the field of AFFF manufacturing and/or the materials needed to manufacture AFFF, and each has detailed information and understanding about the chemical compounds that form AFFF products,” the complaint states.

Causes of action

The complaint seeks to recover damages based on multiple causes of action, including:

Negligence: The complaint states that AFFF manufacturers had a duty to exercise reasonable, ordinary and appropriate care in the design, manufacturing, packaging, labeling, instruction, testing, selling, warning, training, marketing and distribution related to AFFF.

The complaint claims AFFF makers negligently breached this duty by:

• Failing to adequately design products

• Failing to adequately test products

• Failing to adequately inspect products

• Failing to adequately instruct or warn the public

• Failing to adequately market, promote or advertise AFFF

• Distributing and selling a product which was inherently dangerous

The complaint claims the plaintiff, as a result of this negligence, has suffered severe and permanent pain and suffering, disability, impairment, loss of care, loss of enjoyment of life, loss of comfort, medical bills and lost income.

Battery: The complaint states that AFFF makers knew PFAS could enter, persist and accumulate in the human body, yet “knowingly, purposefully, and/or intentionally” continued to sell AFFF without warning about this.

“Defendants did not seek or obtain permission or consent from Plaintiff to put or allow PFAS materials into Plaintiff’s blood and/or body, or to persist in and/or accumulate in Plaintiff’s blood and/or body,” the complaint states, adding, “Plaintiff, and any reasonable person, would find the contact at issue harmful and/or offensive.”

The complaint argues that this represents “an unlawful and harmful and/or offensive physical invasion” which constitutes battery under the law.

Inadequate warning: The complaint claims AFFF makers knew or should have known:

• PFAS is hazardous to human health

• The way they were making, labeling, advertising and selling AFFF was hazardous to human health

• The way they were making, labeling, advertising and selling AFFF would contaminate the blood and/or body of the plaintiff

The complaint claims the plaintiff “could have and would have taken measures to avoid or lessen exposure” to AFFF had he been warned by AFFF makers of the dangers associated with AFFF.

“Defendants’ negligent failure to warn directly and proximately caused the harm to and damages suffered by Plaintiff,” the complaint states.

Design defect: The complaint argues that AFFF is defectively designed since it is dangerous as designed when manufactured as intended, and that AFFF makers should have chosen to use safer alternative designs which “were already available, practical, and technologically feasible.”

Strict liability (statutory): The plaintiff asserts any and all remedies available under statutory causes of action in the complaint regarding strict liability against each defendant.

Strict liability (restatement): The plaintiff, in the complaint, brings strict product liability claims under Section 402A of the Restatement of Torts (Second) and/or Restatement of Torts (Third) against defendants.

Fraudulent concealment: The complaint claims that AFFF makers “fraudulently concealed… that their products were defective, unsafe, and unfit for the purposes intended.”

The complaint argues that AFFF makers intentionally concealed the cancer risk associated with AFFF “so that the Plaintiff would use the Defendants’ products.”

Breach of express and implied warranties: The complaint argues that AFFF manufacturers warranted that their products were safe when they were, in fact, not.

Wantonness: The complaint states that the conduct of AFFF makers was “willful and wanton and exhibited a reckless disregard for the life, health, and safety of the end users.”

About the author

Jeffrey Nadrich is the managing partner of Nadrich & Cohen, LLP, a California personal injury law firm which represents firefighting foam cancer victims.