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< Previous8 CLM MAGAZINE JULY / AUGUST 2025 T he product identification process presently underway in the Aqueous Film-Forming Foam (AFFF) multidistrict litigation (MDL) offers an innovative application of discovery practices used in other complex litigation and toxic tort actions in assessing manufacturer defendants’ potential liability in the MDL. In deviating from pure market-share liability principles while applying product identification discovery practices used in national tobacco and toxic tort litigation, the AFFF MDL product identification discovery plan aims to collect extensive data from a representative pool of “sites” concerning the presence (or absence) of particular chemical products at these “representative sites.” Under this scheme, absent product identification, the causal nexus between a plaintiff’s alleged harm and a defendant’s alleged conduct cannot lie. This product identification process is a pivotal development in the apportionment of liability against manufacturers because without product identification, a manufacturer’s respective market share would be rendered immaterial in a traditional sense and the lawsuit against it properly dismissed. CONTEXTUALIZATION OF PENDING PFAS AFFF LITIGATION In December 2018, the Judicial Panel on Multidistrict Litigation formed the polyfluoroalkyl substances (PFAS) AFFF MDL and appointed Judge Richard M. Gergel, U.S. District Court for the District of South Carolina, to oversee the MDL for coordinated discovery and pretrial litigation. More than 10,000 cases are presently Unmasking PFAS Examining an Innovative Product Identification Discovery Process in PFAS AFFF Multidistrict Litigation By Alexa Cerniglia and Justin Shireman ENVIRONMENTAL >>> Alexa Cerniglia is an associate in Wilson Elser’s Product Liability, Prevention & Government Compliance practice. alexa.cerniglia@wilsonelser.com Justin Shireman is a partner in Wilson Elser’s Product Liability, Prevention & Government Compliance practice. justin.shireman@wilsonelser.comTHECLM.ORG/MAGAZINE CLM MAGAZINE 9 pending in the MDL against hundreds of manufacturers, importers, suppliers, and retailers. These lawsuits primarily allege personal injury and/or property damage caused by exposure to AFFF containing perfluorooctanoic acid (PFOA) and/ or perfluorooctane sulfonate (PFOS) through various channels. The most common, but not exclusive, channel of exposure is contaminated groundwater near thousands of airports, military bases, firefighting training centers, and other industrial sites where AFFF was used to extinguish “liquid fuel fires.” WHAT IS PRODUCT IDENTIFICATION? Different domestic and foreign manufacturers have occupied the market for research, development, manufacture, and sale of AFFF and/or its chemical components, which may have been used at various sites over time. “Product identification” refers to the process of ascertaining (a) the particular AFFF product(s), (b) the manufacturer of said AFFF product(s), (c) the manufacturer of the PFAS that was used in manufacturing the AFFF, (d) which was discharged at a particular site, (e) during a relevant time period. Following years of litigation, in late 2024, Gergel observed that “the time has…arrived” to address these pervasive product identification challenges inherent in personal injury claims, cases brought by public water providers, soil contamination, and sovereign state claims alike. Acknowledging the impracticality of undergoing a targeted product identification investigation at each contaminated site, the court instructed parties to jointly propose a “representative sample pool” of sites to undergo “robust product identification discovery.” On Jan. 15, 2025, the court entered Case Management Order No. 32 (CMO 32), which approved the parties’ “product identification protocol,” and established the process for selecting 10 to 15 eligible sites to be jointly submitted to the court. CMO 32 “primarily include[d] airports, fire training centers, and/or other locations where AFFF was used[,]” and delineated the parameters of product identification discovery at the approved sites. Per the terms of CMO 32, parties jointly proposed 12 sites that were approved by the court on April 1, 2025. This product identification discovery is presently underway and will run for six months through Oct. 1, 2025. CMO 32 provides for the traditional product identification (PID) tools including tailored written and documentary discovery in the form of limited interrogatories and requests for production directed to each party involved in discovery at a particular site; limited party depositions pertaining to each site; and unlimited non-party discovery (both documentary and testimonial) pertaining to each site. Thirty days prior to the conclusion of the PID discovery period (September 2025), “the parties shall begin to confer further on a process to address partial dismissals, if any, that may occur following the product ID discovery and any further proceeding as may be warranted as to these cases or any subset of such cases.” Gergel was unequivocal in his expectation that, if upon conclusion of the PID process a defendant’s product is not identified, claims against that defendant shall be dismissed. This expectation is akin to asbestos litigation and corresponding CMOs requiring dismissal of unidentified defendants at the close of discovery. By leaving only identified defendants, the parties can “simplify” this particularly complex litigation for both trial and settlement. SIGNIFICANCE OF PRODUCT IDENTIFICATION DISCOVERY Despite this innovative approach of building upon traditional foundational principles of market share liability to apportion liability against manufacturers in mass tort and complex litigations based on demonstrated exposure to particular defendants’ product(s) at representative sites, the PID protocol still holds plaintiffs to their burden of establishing both general causation (that PFAS exposure caused the type of harm alleged) and specific causation (that exposure to PFAS that was manufactured by a particular defendant caused the plaintiff’s alleged harm such that an adverse finding of liability against that defendant is fair). But this approach also potentially offers clearer information as to a defendant’s potential liability. Under this innovative discovery protocol, equity ensures that a defendant entitled to dismissal (i.e., a defendant lacking a nexus to alleged PFAS exposure/ contamination at a particular site) is not compelled to bear undue litigation costs through the time of trial. Absent a showing of PID, a manufacturer’s respective global market share fails to confer a basis for any adverse finding of liability in accordance with the interests of fairness and due process. On the other hand, the defendant that is identified can now devote its energy to questions of causation and, if warranted, considerations of settlement. Aptly developed to illustrate the historic use and/or release of PFAS AFFF at each representative site, neither the court nor the parties have yet to publicly identify “next steps” in the PID process. We anticipate that these next steps will contemplate how the collected data from the PID process will be fairly and accurately extrapolated across the thousands of sites and hundreds of defendants involved in the MDL. Contemplation of this next phase likely will not begin until after the Oct. 1, 2025, close of PID discovery. Though labor intensive and highly technical, investment in this evolving PID discovery process is expected to foster early case resolution in thousands of cases where product identification may be established without overburdening litigants and judicial resources with a trial of each action on the merits (either upon selection as a bellwether case or on remand to the court of original jurisdiction), and where appropriate, require dismissal(s) against manufacturers that might otherwise be penalized under traditional principles of market-share liability. K10 CLM MAGAZINE JULY / AUGUST 2025 THE CONSTRUCTION INDUSTRY FACES A NUMBER OF CHALLENGES TODAY FROM THE CONTINUING SKILLED LABOR SHORTAGE TO ECONOMIC AND POLITICAL UNCERTAINTIES. IS THERE ANY ONE CHALLENGE IN PARTICULAR YOU HAVE YOUR EYE ON, AND WHAT ARE THE RISKS POSED BY THAT CHALLENGE? DAN DUCOMMUN, MC CONSULTANTS, INC.: To effectively serve in a forensic consulting industry as a construction expert, individuals first need to have direct and tangible experience in construction, design, and/or engineering. The current shortfall of skilled labor in the construction market today directly impacts the forensic consulting industry tomorrow. The risks of hiring inexperienced experts can lead to the inability to successfully support a diverse scope of construction defect projects. TODD FOLEY, PETE FOWLER CONSTRUCTION: The delta between the owner’s expectation and workforce performance is rapidly growing. Only effective training and certification programs will help close this gap. The construction industry needs to concentrate its efforts on supplying a trained and skilled workforce to all projects. JARED CACCIAPAGLIA, RIMKUS: While skilled labor shortages and political uncertainties are on the list of challenges that we monitor on all projects, we find that one common challenge on construction projects is achieving the right balance of diligence and pre- construction planning. Without adequate pre-construction planning, projects are subject to significant risks from cost overruns and schedule delays to quality and safety concerns. These risks are effectively manageable with a diligent team selection process, maintaining communication between stakeholders, and understanding project-specific conditions to develop a data-driven pre- construction plan. GREG PERRUZZI, GALLAGHER BASSETT: The ongoing labor shortage remains a concern, making it crucial to proactively address risks that threaten worker safety and wellbeing. Safety training and education can significantly reduce or even eliminate the likelihood of incidents. Proper equipment use and the fostering of a safety culture within the organization highlight the importance of focusing on the workforce. When leaders exemplify this behavior, it reinforces their commitment to both projects and personnel. Additionally, efficiently managing workers’ compensation claims and ensuring proper care for injured employees not only supports their health but also facilitates their return to work, which is critical during staffing shortages. WHAT TECHNOLOGIES HAVE YOU SEEN USED ON JOBSITES THAT HAVE MADE CONSTRUCTION LESS RISKY? IS THERE ANY NEW TECHNOLOGY ON THE HORIZON THAT YOU THINK WILL GREATLY IMPROVE JOBSITE SAFETY? JARED CACCIAPAGLIA, RIMKUS: The use of project-based management software has been a significant step forward in construction risk management over the past two decades. That, in combination with wearable technologies like RFID tags and GPS trackers, as well as fixed and mobile cameras, allow for continuous monitoring of personnel, equipment, and construction progress. The use of drone technology pushes these capabilities further and is helping transform the construction industry. Modeling software along with drone technology provides immediate feedback for construction teams and project stakeholders to manage potential risks or avoid them altogether. As these technologies converge with AI in the construction space, jobsite safety will continue to improve through LEADING OUT LOUD CONSTRUCTION SPONSORED CONTENT IS THERE ANY ONE CHALLENGE IN THE CONSTRUCTION INDUSTRY THAT SPECIFICALLY STANDS OUT AND WHAT RISKS ARE POSED BY THAT CHALLENGE? WHAT TECHNOLOGIES HAVE MADE JOBSITE SAFETY LESS RISKY? HAVE THERE BEEN ADVANCES IN TECHNOLOGY THAT HAVE AIDED THE FORENSIC INVESTIGATION PROCESS? WHAT TRENDS ARE BEING SEEN IN CONSTRUCTION CLAIMS? WHAT ARE SOME WAYS TO AVOID RUNAWAY VERDICTS IN CONSTRUCTION?THECLM.ORG/MAGAZINE CLM MAGAZINE 11 predictive modeling and analytics which will in turn provide feedback to data- driven pre-construction planning. TODD FOLEY, PETE FOWLER CONSTRUCTION: Project management and jobsite inspection software continues to improve the effectiveness of contractors and subcontractors when utilized. The effective use of these programs for risk avoidance requires proper project set up, strict compliance with the features, and communications between parties restricted to the software. I am currently focused on smart phone based inspection and dictation software that provide a simple platform for daily jobsite inspections, capturing critical photographic evidence of work performed correctly during the construction process. GREG PERRUZZI, GALLAGHER BASSETT: The evolution of the Internet of Things (IoT) is helping to create efficiencies, enhance safety, and aid in decision-making through the integration of connected devices and data analytics. Embracing new technology can assist in areas such as site monitoring and safety, where devices and sensors monitor environmental controls, such as temperature, humidity, and air quality, to ensure compliance with safety standards and improve worker health. Wearables equipped with IoT capabilities can track workers’ movements and vital signs, providing data to enhance safety protocols and respond quickly to emergencies. DAN DUCOMMUN, MC CONSULTANTS, INC.: Aerial drone investigations have become increasingly popular. Modern drones minimize pilot error and provide quick, safe access for high-rise, commercial, and residential inspections. Drones capture building envelope data much faster than human workers and reduce the need for dangerous inspection situations. HAVE THERE BEEN ANY ADVANCES IN TECHNOLOGY OR TECHNIQUES THAT HAVE AIDED OR TRANSFORMED THE FORENSIC INVESTIGATION PROCESS? TODD FOLEY, PETE FOWLER CONSTRUCTION: The evolution of drones continues to enhance initial investigations by quickly targeting areas of concern. Drones fitted with thermal imaging cameras perform very effectively over large project areas. Another technology that is improving quickly is through wall scanning devices. What started years ago with stud finders has been advanced to provide reliable imaging in wall plumbing, framing, electrical wiring, rebar, or metal connectors. These initial scans can quickly and nondestructively help verify the existence of building components. SPONSORED CONTENT12 CLM MAGAZINE JULY / AUGUST 2025 DAN DUCOMMUN, MC CONSULTANTS, INC.: One of many advanced technologies that first comes to mind is the use of 360-degree photographic mapping, which we refer to as MC Virtual-360. MC Virtual-360 positions the technical operator to capture a 360-degree image of a room or open space. In addition to digital mapping photography, we also utilize thermal imaging, which can transform and aid our forensic consulting team’s ability to capture construction related data. RealityCapture photogrammetry allows our forensic experts to immerse others into a scene, which has proven to be most effective especially with the trier of fact. WHAT TRENDS ARE YOU SEEING IN CONSTRUCTION CLAIMS? ARE THERE ANY TYPES OF CLAIMS THAT ARE EITHER ON THE RISE OR IN DECLINE, AND WHY? GREG PERRUZZI, GALLAGHER BASSETT: So far in 2025, we have not observed any significant changes in claims. However, claim costs continue to rise due to the ongoing risk of exorbitant jury verdicts. There is a heightened emphasis on loss prevention and claim mitigation, with proactive discussions taking place with clients about strengthening their loss prevention and risk management strategies. Further, efforts are being made to develop response plans for deployment when claims arise proactively rather than reactively. This involves coordination with defense counsel, investigators, and the claims teams across Gallagher Bassett to determine actions to be taken when a loss happens. DAN DUCOMMUN, MC CONSULTANTS, INC.: Pre-suit claims are on the rise. Addressing these issues before litigation enables negotiation, clarifies liability, and resolves problems without high legal costs. Early resolution saves time, reduces expenses, protects reputations, prevents escalation, ensures fairness, and allows professional relationships and projects to continue. MANY INDUSTRIES ARE CONTENDING WITH RUNAWAY VERDICTS. HOW HAS THIS TREND IMPACTED THE CONSTRUCTION INDUSTRY, AND WHAT ARE SOME WAYS TO AVOID AND/OR COMBAT RUNAWAY VERDICTS IN CONSTRUCTION? DAN DUCOMMUN, MC CONSULTANTS, INC.: To reduce the threat of future runaway verdicts, the claims industry engages MC Consultants early on to investigate incidents timely. The claims industry has embraced alternative dispute resolution methods to potentially resolve claims efficiently and cost-effectively. Early engagement of forensic experts has shown to be an effective tool in providing our clients and interested parties with the good, the bad, and the ugly as early as possible. Why? The earlier we all know the facts, the more time can be allocated to finding a meaningful solution, which hopefully avoids a trial where today’s juries have proven to be very unpredictable. GREG PERRUZZI, GALLAGHER BASSETT: As mentioned, exorbitant jury verdicts remain a concern, and minimizing them requires a strong loss prevention and risk management program, a post-incident response plan, and immediate thorough investigations. Proactively handling high-risk claims is crucial; these should be flagged for strategic discussions with stakeholders, and risk transfer should be explored early if applicable. Aligning with defense counsel on a clear defense theme is important, and accepting some fault to diffuse juror anger could be considered. Defense counsel should control litigation timelines rather than adhering to plaintiff schedules. In cases with exposure, proactively extending settlement offers to influence plaintiff valuation is a tactic we’re seeing used more consistently. K SPONSORED CONTENT DAN DUCOMMUN is president & CEO at MC Consultants, Inc. dan.ducommun@ mcconsultants.com JARED CACCIAPAGLIA is technical director, construction science at Rimkus. jared.cacciapaglia@rimkus.com TODD FOLEY is an expert at Pete Fowler Construction. todd.foley@petefowler.com GREG PERRUZZI is SVP—practice leader, construction vertical at Gallagher Bassett. Greg_Perruzzi@gbtpa.com KEY SPONSORSHIP OPPORTUNITIES AVAILABLE NOW: Sponsorship@TheCLM.org ALL OTHER QUESTIONS: Help@TheCLM.org REGISTER NOW CONFERENCE CONSTRUCTION SEPTEMBER 17-19 • SAN DIEGO BUILD THIS INTO YOUR 2025 CALENDAR14 CLM MAGAZINE JULY / AUGUST 2025 CLM PROFILE Advertorial AI-powered efficiency: What exclaim ® means for high-volume claims management 2025 has marked a turning point in the insurance industry. AI is no longer on the horizon. It’s here, it’s powerful, and it’s reshaping how insurers respond to mounting operational pressures. Nowhere is the need for AI integration more critical than in managing high- frequency, low-severity claims, where overwhelming volumes and razor-thin margins strain even the most experienced teams. At edjuster ® , we’ve embraced this challenge with the agility and curiosity of a startup—constantly asking how we can do things faster, smarter, and better. But unlike a true startup, we’re backed by the scale, resources, and financial strength of Crawford & Company. Combining entrepreneurial energy with enterprise credibility means we can move fast without cutting corners, proving that innovation doesn’t have to mean risk. In a high-volume claims environment where customer frustration often stems from complexity and delays, the experience itself becomes a differentiator. That’s why we’ve made it our mission to simplify and elevate every interaction. It starts with exclaim ® , our sophisticated yet intuitive digital platform. As Melanie Hughes, president at edjuster explains, “Our focus isn’t on technology for technology’s sake. We build solutions for the people who use them, and we always start with our own teams to make sure they truly work.” At the heart of exclaim is our customer portal, co-designed with insurers and adjusters to offer the ultimate user experience. It enables policyholders to submit their contents with ease, attaching images, receipts, and documentation with a clean and customizable interface. “Policyholders are actually eager to use the portal because it makes sense,” Melanie explains. “There is no UX clutter. It’s intuitive and clear. And when 95% of policyholders complete submissions through the portal when offered, that’s not just good design—it’s impact.” Once submitted, 96% of content items are automatically validated, through AI-driven prompts that gather the correct information upfront, eliminating the need for follow-up. That’s not just good for all contents-related claims—it’s a breakthrough for high-frequency, low- severity claims. For carriers that don’t want to tie up adjusters with small or straightforward claims, exclaim offers a fully digital portal: no phone calls, no back-and-forth, no unnecessary handoffs. Policyholders receive automated reminders, complete their content submission and within hours, they receive their valuation. Sixty-five percent of claims are returned the same day; 98% within 24 hours. And the accuracy? Ninety-nine percent of claims are one-and-done. “Human expertise still matters,” Melanie notes. “But our teams are no longer buried in spreadsheets. They’re validators, not estimators, free to focus on quality, not quantity.” Behind the speed and simplicity is real financial impact. Carriers using exclaim are seeing 13.4% improvements in valuation accuracy and an average 40% return on indemnity. That’s what happens when you combine intelligent pricing with streamlined workflows. Not to mention enabling a smoother experience for everyone involved. And, through every innovation, we prioritize data integrity, seamless integration, and real results. Clients who previously stored content claims data across fragmented systems can now track cycle times, indemnity performance, and per-line costs with ease. exclaim’s AI capabilities will soon take another big step forward, with new advancements designed to further simplify and strengthen the claims experience. And that’s just the beginning. What’s coming next will expand the impact well beyond the claim itself. The bottom line is simple: exclaim is redefining content claims by replacing complexity with clarity. And for a market chasing speed, accuracy, and trust at scale, that’s not just innovation. It’s insurance done better. KTHECLM.ORG/MAGAZINE CLM MAGAZINE 17 T he Supreme Court must be a very strange place to work. The nine justices get roughly 10,000 requests from litigants seeking review of their cases each year. In the end, they accept only 60 to 70 cases for review resulting in a published opinion. Many of the cases involve the most highly charged social or political issues. A number of them involve issues that the framers of the U.S. Constitution could not begin to imagine, such as DNA evidence. This term, the Court, in TikTok v. Garland, recounted the advice of Justice Felix Frankfurter from 80 years earlier: “[I]n considering the application of established legal rules to the ‘totally new problems’ raised by the airplane and radio, we should take care not to ‘embarrass the future.’” [See Northwest Airlines, Inc. v. Minnesota , 322 U.S. 292 (1944)]. While the Court was called upon to address a large number of hot-button social issues this term, its below-the-radar opinions serve as a primer for the complete lifecycle of a claim. It also provides claims adjusters and claims managers with an (extremely verbose) checklist for examining a claim from a procedural perspective. JURISDICTION In short, jurisdiction addresses the question of what court has the right to hear the case. By example, a workers’ compensation court does not have jurisdiction to grant a divorce. There is a related concept of which, amongst equal jurisdictions, does the case belong in. That is called venue and that question was not before the Court this term. In Royal Canin U.S.A. v. Wullschleger, the plaintiff sued Royal Canin in state court asserting violations of state and federal statutes. Since there were federal statutes in the lawsuit, Royal Canin removed the case to the federal court where it felt it had a better chance of prevailing. In response, Wullschleger voluntarily dismissed the federal actions and then argued that the federal court no longer had jurisdiction. The Supreme Court agreed that, without a federal claim, the federal court no longer had jurisdiction, and the matter had to be returned to the state court. What Claims and Litigation Professionals Can Learn From the Court’s Latest Term By Jeff Marshall Lessons From the Supreme CourtNext >