Great news for Plaintiffs in the AFFF MDL! Judge Gergel denied the Defendants’ motion for summary judgment seeking dismissal of the claims based on the government contractor defense. This decision clears a major hurdle allowing municipal water suppliers, airports, and fire firefighters seeking damages to proceed to trial.
What Is a Motion for Summary Judgment?
A motion for summary judgment (or MSJ) seeks dismissal of a legal claim when the law is clear and there is no dispute of fact. Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if a party “shows that there is no genuine dispute as to any material fact” and the movant is entitled to judgment as a matter of law. The opposing party can defeat a motion for summary judgement by submitting evidence that raises a factual question relating to the legal issue before the court.
What is the Government Contractor Defense?
3M and others raised the Government Contractor Defense to seek dismissal because firefighting foam was first developed for military use. Liability for design defects in military equipment cannot be imposed, pursuant to state law, when:
- the United States approved reasonably precise specifications (MilSpec);
- the equipment conformed to those specifications; and
- the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.
The MDL Judge’s Reasoning Denying MSJ
Judge Gergel reviewed the evidence submitted by the Plaintiffs to see whether it raised any material issues of fact related to the Government Contactor Defense. First, the judge concluded that the MilSpec advanced by the defendants was not reasonably precise enough to meet the first requirement. Second, the judge found genuine issues of material fact concerning whether 3M met the “Continued Use” Doctrine. This doctrine requires defendants to show the government’s continuous use of the product was with full knowledge of its defects and risks. Finally, the judge held that 3M failed to indisputably show that they warned the government of defects and risks known to it but not the government.
Judge Gergle concluded: “Under these circumstances, summary judgment is inappropriate, and the parties will have the opportunity at trial to litigate, and the jury to decide, these hotly contested issues.” Sounds to me like trial will go forward as scheduled early next year. This is great news for for all plaintiffs who have been waiting for their day in court.