Panel denies motion to transfer Stella PFAS lawsuit to South Carolina

The United States Judicial Panel on Multidistrict Litigation has denied a motion filed by chemical giant 3M to include a PFAS-related lawsuit filed by a group of Oneida County property owners in a massive multidistrict litigation consolidated in South Carolina.

The panel’s decision, dated Dec. 7, means the case will stay in the U.S. District Court for the Western District of Wisconsin.

Ahlstrom Rhinelander LLC and Ahlstrom NA Specialty Solutions LLC  are also a defendants in the case which is related to alleged drinking water contamination. The Ahlstrom defendants took no position on 3M’s motion to move the case to South Carolina. The plaintiffs — Town of Stella property owners Lucas and Alisha Rougeau, Carrie and Kerry Brenton and Timothy and Melissa Gerdmann — opposed it.

The plaintiff’s suit, filed Aug. 9, alleges that the application of waste from the Rhinelander paper mill onto farmland in Oneida County caused extensive contamination of private well water.

“Over the course of decades, Defendant Ahlstrom and its predecessors disposed of millions of pounds of waste from the Rhinelander Paper Mill by dumping and spreading the waste on farmland throughout Oneida County, and specifically in the Town of Stella,” the complaint alleges. “Upon information and belief, this waste contained high levels of PFOA, PFOS, and other PFAS. It was this ‘land application’ of waste that caused Plaintiffs’ wells to be among the most contaminated in the country for PFAS.”

3M sold and supplied PFAS chemicals to the Ahlstrom facility, the lawsuit alleges.

PFAS (per- and polyfluoroalkyl substances) are a group of human-made chemicals used for decades in numerous products, including non-stick cookware, fast food wrappers, stain-resistant sprays and certain types of firefighting foam. These chemicals are known to accumulate in the human body, posing several risks to human health including certain cancers, liver damage and decreased fertility. 

The South Carolina multidistrict litigation (MDL) involves allegations that aqueous film-forming foams (AFFFs) used at airports, military bases, or other locations to extinguish liquid fuel fires caused the release of PFAS.

In support of its motion to transfer, 3M argued that the Stella case “involves contamination sites already at issue in the (South Carolina) MDL,” the order states.

 “Specifically, 3M points to a complaint by the State of Wisconsin seeking to recover for alleged PFAS contamination of Wisconsin’s natural resources. Among other sources of PFAS contamination, the State alleges AFFF use at the Rhinelander/Oneida County Airport has caused contamination of ‘several private wells’ in the surrounding community. 3M also notes that the State alleges PFAS contamination in Rhinelander, Wisconsin, including at or near the addresses of plaintiffs in Rougeau. Accordingly, 3M argues that there necessarily will be overlapping discovery as between the Wisconsin action and Rougeau.”

In the order, the panel members stressed that they have specifically “drawn a line between AFFF and non-AFFF cases because of concerns for the manageability of this litigation.”

“While a non-AFFF MDL would allow for common discovery and motion practice with respect to 3M — the main producer of PFOA and PFOS — it also would include far more site-specific issues, different modes of PFAS contamination, and different PFAS chemicals (whereas the AFFF actions are limited to PFOA and PFOS contamination). Such an MDL could quickly become unwieldy,” the panel noted. “A party seeking transfer of an action that does not on its face raise AFFF claims bears a significant burden to persuade us that transfer is appropriate and will not undermine the efficient progress of the AFFF MDL.”

Ultimately, 3M did not meet that burden, the panel determined.

“3M has not met its ‘significant burden’ of showing that transfer of Rougeau is appropriate,” they wrote. “Plaintiffs’ complaint is wholly focused on the alleged contamination from the Rhinelander Paper Mill. From the very beginning of this litigation, we have excluded actions involving non-AFFF discharges of PFAS from specific industrial locations. 3M relies heavily on the purported overlap with the Wisconsin action, but that action is not limited to AFFF contamination. 3M argues that the Rougeau plaintiffs and class members’ allegations of non-AFFF contamination of their wells will overlap with the State’s claims pertaining to AFFF contamination, but these arguments are too speculative. For instance, it is unclear whether any class members in Rougeau were exposed to PFAS from alleged AFFF use at Rhinelander airport, which is eleven miles from the named Rougeau plaintiffs’ home addresses. 3M invites us to presume that some portion of the class must have suffered contamination stemming from the Airport’s use of AFFF; however, the mere potential for overlap is not sufficient to justify transfer of an otherwise non-AFFF action.”

“Should Rougeau evolve into a more obvious AFFF action, the parties or the court may re-notice Rougeau as a potential tag-along in (the South Carolina MDL) at that time,” the order concludes. “At present, however, whether and how AFFF plays a role in plaintiffs’ injuries in Rougeau remains too uncertain to warrant transfer.”

Now that it has been determined that the case will stay in Wisconsin, a status conference has been set for Jan. 23, 2024 before Magistrate Judge Stephen L. Crocker.