State government plaintiffs in cases against PFAS manufacturers have adopted the strategy of filing parallel complaints in state court – one for recovery for contamination caused by PFAS in AFFF and a second for potentially comingled PFAS contamination caused by PFAS from consumer and other non-AFFF products. One reason for doing so: attempting to keep the non-AFFF claims in state court and well clear of the massive PFAS MDL in federal court in South Carolina, with associated procedural controls and delays.
On March 7, 2025, the Fourth Circuit Court of Appeals struck a blow to this strategy. The Court ruled that the language of the pleadings in two non-AFFF cases initiated by the states of Maryland and South Carolina was insufficient to overcome an argument by the PFAS manufacturer, 3M, that PFAS from AFFF and non-AFFF sources was so intermingled in the environment that a factfinder in the non-AFFF case would need to determine the amount attributable to AFFF sources. In the Court of Appeal’s view, this connection to the AFFF claims satisfied the “nexus” prong under the federal officer removal statute. The Court sent the cases back to the federal District Courts to determine whether the two other prongs for removal were met, i.e., whether the Defendant: 1) acted under a federal officer and 2) has a colorable federal defense.
In addition, the Court, in a footnote, quoted a statement made by the MDL Panel in its initial denial of a 3M Motion to transfer the Maryland case to the MDL, “if it becomes clearer that [Maryland’s] AFFF and non-AFFF actions involve the same ground or surface waters,” transfer to the MDL may eventually be appropriate.
We will continue to monitor this issue.