As readers are aware, the AFFF MDL pending in the U.S. District Court for the District of South Carolina centralizes cases alleging that AFFF products used at airports, military bases, or certain industrial locations released PFOA and PFAS into groundwater. Defendants identified a number of defenses common to the group in the course of litigating these cases, including the so-called government contractor immunity defense. The government contractor immunity defense shields private companies contracting with the federal government under certain circumstances with the rationale that permitting certain suits between an individual and a government contractor can cause the contractor to either decline to manufacture a product specified by the government or increase costs on the government to manufacture such products to insure against potential claims. Here, Defendants argued that the government contractor immunity defense should apply to their manufacture of AFFF pursuant to a Naval MilSpec in existence from 1969 until 2019 that required that the products use “fluorocarbon surfactants” (which include PFOA and PFOS, but also include several hundred other PFAS compounds).

The three-part test for assessing whether the government contractor immunity defense applies was first laid out in Boyle v. United Technologies Corp., 487 U.S. 500 (1988). Under Boyle and subsequent case law, to establish applicability of the defense, a defendant must show:

• The U.S. approved reasonably precise specifications;
• The product conformed to those specifications; and
• The supplier warned the U.S. about the dangers in the use of the equipment that were known to the supplier but not to the U.S.

Here, the Court issued an Order denying Defendants’ motion primarily on the basis that they had failed to satisfy the first prong of the Boyle standard for several reasons:

• The Court found that the MilSpec did not require adherence to a particular formula, but rather allowed contractors to use discretion to choose which “fluorocarbon surfactants” to include in their products and were not required to use PFOA or PFOS specifically;
• The Court determined that the government did not participate in a meaningful back and forth with AFFF manufacturers in the development of the manufacturers’ products—rather, the manufacturers treated their products as proprietary information; and
• The Court concluded that material factual disputes remain concerning whether the timing of some manufacturers’ disclosures of health-related information concerning PFOA and PFOS resulted in a delay in the government’s discontinuance of these compounds in AFFF, such that there was no prima facie showing that the government continued to use the AFFF MilSpec with full knowledge of the product’s risks.

The denial of summary judgment on the government contractor defense paves the way for bellwether trials to begin next year. We will continue to update our readers as these cases proceed.