State of Wisconsin v. 3M Company

UNITED STATES JUDICIAL PANEL

on

MULTIDISTRICT LITIGATION

IN RE: AQUEOUS FILM-FORMING FOAMS

PRODUCTS LIABILITY LITIGATION MDL No. 2873

TRANSFER ORDER

Before the Panel:* We are presented with motions in three actions. First, defendant 3M

Company moves under 28 U.S.C. § 1407(c) to transfer the Fleming action listed on Schedule A to

the District of South Carolina for inclusion in MDL No. 2873. No party responded to this motion.

Second, plaintiffs and defendant Kester, LLC, each move under Panel Rule 7.1 to vacate our order

that conditionally transferred the McKinnon action listed on Schedule A to MDL No. 2873.

Finally, plaintiff State of Wisconsin likewise moves under Panel Rule 7.1 to vacate our order that

conditionally transferred the State of Wisconsin action listed on Schedule A to MDL No. 2873.

Defendants 3M Company and Tyco Fire Products LP oppose the motions to vacate in both

McKinnon and State of Wisconsin, while defendant Chemguard, Inc., opposes the motion in State

of Wisconsin.

The motion to transfer Fleming to the MDL is easily resolved. Fleming involves a putative

class of Alabama residents who use water provided by the City of Guin Water Works and Sewer

Board. Plaintiffs allege that this water was contaminated by per- or polyfluoroalkyl substances

(PFAS) stemming from, inter alia, a nearby 3M facility. 3M persuasively argues that, while the

complaint does not explicitly allege contamination by aqueous film-forming foams (AFFFs), the

spill cited in the complaint involved the discharge of 3,500 gallons of AFFF from the 3M facility

into a nearby waterway. Fleming therefore will share common factual questions with the actions

in the MDL, which involve allegations that AFFFs used at airports, military bases, or other

locations to extinguish liquid fuel fires caused the release of perfluorooctane sulfonate (PFOS)

and/or perfluorooctanoic acid (PFOA; both of which are considered a PFAS) into local

groundwater and contaminated drinking water supplies. See In re Aqueous Film-Forming Foams

Prods. Liab. Litig., 357 F. Supp. 3d 1391, 1394 (J.P.M.L. 2018). As no party opposes transfer, we

will grant this motion.

Turning to the motions to vacate, movants in both actions argue that federal subject matter

jurisdiction over their respective actions is lacking, and that pending motions for remand to state

court should be decided before transfer. We are not persuaded by these arguments. The Panel has

held that jurisdictional objections such as those asserted in these actions generally do not present

*Judges David C. Norton and Madeline Cox Arleo did not participate in the decision of this matter.

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an impediment to transfer.1 See, e.g., In re Prudential Ins. Co. of Am. Sales Practices Litig., 170

F.Supp. 2d 1346, 1347–48 (J.P.M.L. 2001) (“[R]emand motions can be presented to and decided

by the transferee judge.”). “This is so even where, as here, plaintiffs assert that the removals were

patently improper.” In re Ford Motor Co. DPS6 PowerShift Transmission Prods. Liab. Litig., 289

F.Supp. 3d 1350, 1352 (J.P.M.L. 2018).

Movants in both actions also argue that their actions are sufficiently distinct from those in

the MDL such that transfer is not appropriate. Movants in McKinnon argue that plaintiffs allege

that Mr. McKinnon was exposed to a variety of solvents, cleaners, and other chemical products

during his employment at a fire department located at the Joint Forces Training Base in Los

Alamitos, California. Plaintiffs allege that Mr. McKinnon’s exposure to the numerous chemicals

and products listed in his complaint caused his cancers and lymphoma. Movants argue that,

because McKinnon involves over a dozen defendants and numerous non-AFFF products, this

action will involve different witnesses and causation issues than the actions in the MDL. They

also argue that transfer would reduce efficiencies in McKinnon, and would inject new and

unrelated products and issues in the MDL.

Plaintiffs, though, amended their complaint in McKinnon to expressly assert claims against

3M and Tyco for the manufacture and sale of AFFF products. Plaintiffs allege that Mr. McKinnon

was exposed to these AFFF products through the course of his employment at Los Alamitos, and

that these products caused his alleged injuries. These claims are not meaningfully distinguishable

from the hundreds of cases in the MDL brought by firefighter plaintiffs who allege that they were

injured by direct exposure to AFFF. See In re Aqueous Film-Forming Foams Prods. Liab. Litig.,

MDL No. 2873, 2021 WL 755083, at *1–2 (J.P.M.L. Feb. 4, 2021) (holding that transfer of direct

exposure claims by firefighters is appropriate). That McKinnon involves claims of exposure to

other chemicals, in addition to AFFF, is of no moment. “Section 1407 does not require a complete

identity or even 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).

The State of Wisconsin similarly argues that its action is predominantly not an AFFF case.

The State contends that its complaint encompasses all PFAS products used in Wisconsin that

allegedly contaminated its waters and other natural resources. But the State, like plaintiffs in

McKinnon, expressly alleges contamination from AFFF use and even identifies several sites in its

complaint that were allegedly contaminated by AFFFs. That the State’s claims encompass both

AFFF and non-AFFF sources of contamination does not eliminate the common factual questions

and discovery relating to PFAS and AFFF that State of Wisconsin will share with the actions in

the MDL. See Transfer Order at 2, MDL No. 2873 (J.P.M.L. Jun. 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.”) (emphasis in original; internal citation omitted). The State’s attempt to

1 Panel Rule 2.1(d) expressly provides that the pendency of a conditional transfer order does not

limit the pretrial jurisdiction of the court in which the subject action is pending. Between the date

a remand motion is filed and the date that transfer of the action to the MDL is finalized, a court

generally has adequate time to rule on a remand motion if it chooses to do so.

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distinguish its claims from those brought by numerous other states that have been transferred to

the MDL is unavailing. See, e.g., Transfer Order at 1–2, MDL No. 2873 (J.P.M.L. Apr. 2, 2019),

ECF No. 384 (transferring parens patriae actions brought by States of New York and Ohio and

rejecting arguments that issues unique to those cases would predominate over the common issues

in the MDL).

The State also argues that common defenses, such as the government contractor defense,

are not sufficient to merit centralization, because the State’s theory of the case encompasses more

than just the design of the products. But we previously rejected the argument that actions that do

not implicate the government contractor defense are inappropriate for transfer to MDL No. 2873.

See id. at 2 (“[T]hat defendants’ potential government contractor defense may not be applicable to

some sites identified by the States does not weigh against centralization. Multiple contamination

sites already at issue in the MDL involve non-military firefighting or industrial facilities, and thus

also will not involve this defense.”). In any event, transfer under Section 1407 does not require a

complete identity of factual and legal issues when the action arises from a common factual core.

See In re Oxycontin Antitrust Litig., 542 F. Supp. 2d 1359, 1360 (J.P.M.L. 2008).

Movants in both actions argue that transfer will cause them delay and inconvenience.

Transfer, though, is appropriate if it furthers the expeditious resolution of the litigation taken as a

whole, even if some parties to the action might experience inconvenience or delay. See In re

Watson Fentanyl Patch Prods. Liab. Litig., 883 F. Supp. 2d 1350, 1351–52 (J.P.M.L. 2012) (“[W]e

look to the overall convenience of the parties and witnesses, not just those of a single plaintiff or

defendant in isolation.”). Furthermore, centralization is for pretrial proceedings only, and there

usually is no need for parties or witnesses to travel to the transferee court for depositions or court

hearings. See In re MLR, LLC, Patent Litig., 269 F. Supp. 2d 1380, 1381 (J.P.M.L. 2003).

Movants’ arguments in McKinnon, in particular, are not well taken, as the procedural posture of

the case when it was in state court (where only written discovery had been completed) bears little

relevance to the case’s posture after the addition of the AFFF manufacturers as defendants and

removal to federal court.

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 PFOS and/or PFOA 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 Aqueous Film-

Forming Foams Prods. Liab. Litig., 357 F. Supp. 3d at 1394. Subsequently, we held that personal

injury actions brought by firefighter plaintiffs alleging direct exposure to AFFF also shared

common factual questions with the actions in the MDL. See In re Aqueous Film-Forming Foams

Prods. Liab. Litig., 2021 WL 755083, at *1–2. As explained above, each of these three actions

will share common questions of fact with the AFFF actions in the MDL and will benefit from

inclusion in the centralized proceedings.

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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

Nathaniel M. Gorton Matthew F. Kennelly

Roger T. Benitez Dale A. Kimball

IN RE: AQUEOUS FILM-FORMING FOAMS

PRODUCTS LIABILITY LITIGATION MDL No. 2873

SCHEDULE A

Northern District of Alabama

FLEMING, ET AL. v. 3M COMPANY, ET AL., C.A. No. 6:22−00285

Central District of California

MCKINNON, ET AL. v. APPLIED INDUSTRIAL TECHNOLOGIES, ET AL.,

C.A. No. 8:22−01398

Western District of Wisconsin

STATE OF WISCONSIN v. 3M COMPANY, ET AL., C.A. No. 3:22−00412