As communities grapple with the devastating consequences of aqueous film-forming foam (AFFF) contamination, legal recourse often seems like a beacon of hope. It can help affected individuals seek justice and accountability.
Navigating the complex legal landscape surrounding AFFF contamination lawsuits is fraught with challenges and roadblocks that can impede progress and delay justice. However, each step of the legal process presents its own set of obstacles that plaintiffs and their legal representatives must overcome.
Burden of Proof
One of the primary roadblocks in the AFFF foam lawsuit is the high burden of proof placed on plaintiffs. Establishing a direct link between AFFF exposure and specific health issues or environmental damage can be incredibly challenging.
According to the Legal Information Institute, the burden of proof dictates the level of evidence required to establish a fact in court. In criminal trials, it is the prosecution’s responsibility to establish the defendant’s guilt with certainty, leaving no room for reasonable doubt. In civil cases, the plaintiff needs to demonstrate their case by a preponderance of the evidence.
Plaintiffs must gather substantial evidence, including scientific studies, expert testimony, and medical records, to demonstrate causation convincingly. However, proving causation beyond a reasonable doubt is often an uphill battle. This is especially true when facing well-funded defendants with teams of lawyers ready to dispute any claims.
Corporate Defences
TorHoerman Law notes that corporate defendants in AFFF contamination lawsuits often employ a range of legal defences to avoid liability and minimize accountability. These defences may include arguing that the plaintiff’s injuries or damages were caused by factors unrelated to AFFF exposure.
The defendant’s attorneys may argue that the plaintiffs assumed the risk by using AFFF products or claiming that the statute of limitations has expired.
FindLaw notes that the statute of limitations governs when legal actions must be filed, with limited exceptions for delayed starts or paused timelines. In the event of a mental incapacity or the defendant’s absence from the state, cases may start later. In these cases, the statute of limitations for bringing a lawsuit may be temporarily suspended or restarted, enabling the pursuit of legal action.
Additionally, corporations may attempt to shift blame onto other parties, such as government agencies or third-party contractors, further complicating the legal proceedings.
Regulatory Challenges
Another significant roadblock in AFFF contamination lawsuits stems from regulatory challenges and loopholes. Despite mounting evidence of AFFF’s harmful effects on human health and the environment, regulatory agencies have been slow to enact meaningful regulations.
This lack of regulatory action undermines efforts to hold corporations accountable. It also limits the legal options available to plaintiffs seeking justice through the court system. Additionally, regulatory agencies’ reluctance to intervene may embolden corporate defendants to continue using AFFF products with impunity.
Jurisdictional Issues
Jurisdictional issues can also complicate AFFF contamination lawsuits. This is especially true when multiple parties are involved or when the contamination spans across different states or countries. Determining which court has jurisdiction over the case and which laws apply can be a time-consuming and contentious process.
This further delays the resolution of the lawsuit. Additionally, jurisdictional disputes may allow corporate defendants to forum shop or seek a venue that is more favourable to their interests. This can potentially put plaintiffs at a disadvantage.
Forum shopping refers to a practice where lawsuits are strategically filed in specific courts to secure favourable rulings.
Bloomberg Law News notes that the U.S. Justice Department has recently proposed a rule to tackle forum shopping. The aim is to address concerns about biased judicial outcomes and ensure fair adjudication across federal courts. Implementing this rule could help mitigate the practice of selecting favourable venues.
Limited Legal Precedent
Finally, the limited legal precedent surrounding AFFF foam contamination lawsuits poses a significant challenge for plaintiffs and their legal representatives. With relatively few cases reaching trial or establishing binding legal precedents, courts may lack clear guidance on how to handle AFFF-related claims effectively.
This lack of precedent can lead to inconsistent rulings, prolonging the litigation process and creating uncertainty for both plaintiffs and defendants. Additionally, without established legal precedents to rely on, plaintiffs may struggle to anticipate potential outcomes or assess the strength of their case. This further complicates their pursuit of justice through the legal system.
FAQs
Is AFFF foam still used?
AFFF foam containing PFAS chemicals has been phased out due to environmental concerns. While it may still be used in specialized firefighting applications where no feasible alternatives exist, its usage is decreasing due to regulatory pressures.
Is it possible to bypass the statute of limitations?
Yes, there are exceptions where the statute of limitations is temporarily suspended or “tolled.” This occurs in cases involving minors, defendants out of state or in prison, or those deemed mentally incapacitated. This allows the timeline to pause and resume later.
Is AFFF a regulated substance?
Yes, AFFF is regulated due to its containing toxic per- and polyfluoroalkyl substances (PFAS). Regulatory measures aim to mitigate environmental and health risks associated with PFAS contamination from AFFF usage.
