Products Liability Law Daily Kalispel Tribe sues firefighting-foam makers and U.S. over contamination of water supply
Wednesday, April 1, 2020

Kalispel Tribe sues firefighting-foam makers and U.S. over contamination of water supply

By Susan Engstrom

Complaint seeks compensatory and punitive damages for property losses caused by the PFAS-containing foam, including loss of revenue from the Tribe’s casino.

The Kalispel Tribe of Indians filed suit against several chemical companies and the United States, seeking damages resulting from water contamination allegedly caused by toxic pollutants in Aqueous Film Forming Foam (AFFF) used and disposed of by the U.S. Air Force (USAF) at and around the Fairchild Air Force Base in eastern Washington. According to the complaint, the AFFF, which was designed, manufactured, marketed, and sold by the defendant companies to the U.S. for use in fire training and response at Fair child AFB, contained toxic levels of per- and poly fluorinated alkyl substances (PFAS). The complaint asserts causes of action for negligence, failure to warn, manufacturing/design defect, and breach of implied warranty of merchantability against the AFFF manufacturers; as well as claims for trespass, negligence, and nuisance against the United States (Kalispel Tribe of Indians v. 3M Co., March 30, 2020).

The Kalispel Tribe, along with the Kalispel Tribal Economic Authority and Northern Quest Resort and Casino (collectively, Tribe), alleges that the AFFF manufacturers—including 3M Co. and Tyco Fire Products L.P.—knew that the PFAS in their firefighting foam presented an unreasonable risk to human health and the environment and was inherently dangerous. The Tribe also asserts that the companies failed in their duty to warn users of the inherently dangerous properties of their products. In addition, the USAF allegedly has known for decades that PFAS in AFFF are harmful to the environment and possibly harmful to human health. Since 1970, however, the USAF has used and disposed of PFAS-containing AFFF at Fairchild AFB, resulting in PFAS in nearby groundwater, contamination of the local well field, and, in turn, contamination of the Tribe’s water in concentrations higher than those allowed by the U.S. Environmental Protection Agency, the complaint contends.

According to the Tribe, the contaminants released by hazardous AFFF caused property injury and resulted in an increased risk of cancer to its members. The Tribe maintains that it has sustained a major disruption of its business and governmental activities, including losses in revenue from its luxury resort and casino.

Negligence claims. In its negligence cause of action, the Tribe alleges that the AFFF makers owed it a duty to act reasonably and to not place inherently dangerous AFFF into the marketplace when the contaminants’ release into the aquifers and drinking water supplies was imminent and certain. The companies knew that AFFF containing large quantities of toxic PFAS would be stored in fire suppressant systems on USAF bases, and it was foreseeable that use of the substance at Fairchild AFB would result in water contamination at that location. The manufacturers were in the best position to provide adequate instructions, proper labeling, and sufficient warnings about their AFFF products for the protection of health and the environment.

Failure to warn claims. The complaint also alleges that the manufacturers had a duty to warn of the hazards associated with AFFF but failed to provide sufficient warning that the use and storage of the product would cause it to be released into the environment. Had the companies provided an adequate warning, the Tribe could have taken measures to prevent or lessen its injury through filtration or shifts to alternative supplies of water, the complaint maintains.

Manufacturing/design defect claims. The AFFF makers allegedly knew or should have known that the manner in which they were manufacturing, marketing, and selling PFAS-containing AFFF was hazardous to human health and the environment and that the substance would contaminate the aquifers and drinking water wells at Fairchild AFB. According to the complaint, the companies could have manufactured, marketed, and sold alternative designs or formulations that did not contain PFAS. Those alternative designs were already available, practical, and technologically feasible and would have reduced or prevented the reasonably foreseeable harm to property caused by the companies’ manufacture, marketing, and sale of PFAS-containing AFFF. In addition, the complaint contends that the AFFF manufactured by the defendants was defectively designed, as the foreseeable risk of harm could have been reduced or eliminated by the adoption of a reasonable, alternative design that was not unreasonably dangerous.

Other claims. The complaint also asserts a claim for breach of implied warranty of merchantability against the manufacturers, as well as market share liability, alternative liability, concert of action, and enterprise liability. Against the United States, the complaint asserts trespass, negligence, and nuisance claims.

Relief sought. The Tribe is seeking punitive damages against the companies, contending that they engaged in willful, wanton, malicious, and/or reckless conduct that caused the aforementioned property damage and nuisances upon its land. Demanding a jury trial, the Tribe also is requesting: (1) an award of general, compensatory, exemplary, consequential, nominal, and punitive damages from the manufacturers in an amount of at least $21,270,000, with punitive damages to be added to that amount; (2) an award from the United States in the amount of $21,270,000, plus attorney fees and costs allowed by statute; (3) an order for an award of attorney fees and costs, as provided by law; (4) pre- and post-judgment interest as provided by law; and (5) an order for all such other relief the court deems just and proper.

The case is No. 2:20-cv-00127-SMJ.

Casino and Kalispel Tribal Economic Authority.

Companies: Kalispel Tribe of Indians; Northern Quest Resort; Casino and Kalispel Tribal Economic Authority; 3M Co.; Tyco Fire Products LP; Chemguard Inc.; Buckeye Fire Equipment Co.; National Foam Inc.; Kidde FireFighting Inc.

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