2:18-mn-02873-RMG

Date Filed 09/03/20

Entry Number 801

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

IN RE: AQUEOUS FILM-FORMING
FOAMS PRODUCTS LIABILITY
LITIGATION

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MDL No. 2:18-mn-2873-RMG
ORDER
This Order Relates to
Case No. 2:20-cv-2115-RMG

Before the Court is a motion from the New Mexico Attorney General and the New Mexico
Environmental Department (collectively, “New Mexico”) for leave to move for a preliminary
injunction. (Dkt. No. 735.)
New Mexico seeks this Court’s authority to move for an affirmative preliminary injunction
under the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(B), that would require
Defendants the United States of America and the United States Department of the Air Force to,
inter alia, sample quarterly all per- and polyfluoroalkyl substances in certain water wells, survey
for the substances among wildlife in certain areas, disclose to the State and the public these and all
prior sampling results, close Lake Holloman, provide blood tests for volunteering residents, and
provide an alternative drinking water source to all individuals with PFAS detected in their water
supplies.
New Mexico must seek leave to so move pursuant to CMO No. 2, which authorizes motion
practice only under the authority of appointed Lead Counsel. The Plaintiffs’ Executive Committee
opposes New Mexico’s motion for leave, noting that because this multi-district litigation (MDL)
contains many member cases in which a compelling level of PFAS has been detected in or is

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alleged to exist at specific sites, allowing New Mexico to move for a preliminary injunction and
conducting an analysis on that motion’s merits now would untimely impact those many cases.
(Dkt. No. 760.) As Defendants to New Mexico’s claims, the United States of America and the
U.S. Air Force also oppose allowing New Mexico leave to bring the preliminary injunction,
similarly noting that New Mexico’s claims are not unique in this MDL and, therefore, that a review
of their merits, as is embedded in the preliminary injunction analysis, should not be prioritized.
(Dkt. No. 761.) The Defense Coordination Committee likewise opposes New Mexico’s request
for leave and emphasizes that because resolution of the issues raised is premature it could prejudice
other cases involving the same issues. (Dkt. No. 762.)
There are currently 750 member cases in this MDL. In each of those cases, the parties are
currently engaging in ongoing discovery through the auspices of Court-appointed Lead Counsel
and subject to the protocols agreed to by Lead Counsel and ordered by the Court. Those protocols
include, among other things, bringing a motion only under the authority of Lead Counsel. CMO
No. 2. Adhering to these protocols is necessary to ensure that discovery in these proceedings is
efficient and consistent. Such discovery enures to the benefit of every plaintiff and defendant in
this MDL. Allowing New Mexico, and each of the thousands of plaintiffs in this MDL, to conduct
motion practice outside the auspices of Lead Counsel would derail a centralized proceeding—one
of the primary responsibilities of the transferee Court—and impede each plaintiff’s opportunity to
participate in an organized proceeding and efficient resolution.
Therefore, at this stage in these centralized proceedings, the Court will not consider
whether New Mexico would prevail on the merits of its claims, as the preliminary injunction
analysis would require. New Mexico’s motion for leave to move for a preliminary injunction (Dkt.
No. 735) is DENIED.

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AND IT IS SO ORDERED.
s/ Richard Mark Gergel
Richard Mark Gergel
United States District Judge
September 3, 2020
Charleston, South Carolina

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