Massive 3M, DuPont PFAS Class Dismantled by Sixth Circuit

 The Sixth Circuit on Monday tossed a lawsuit and dismantled a class that would have covered every Ohioan in a major case over exposure to “forever chemicals,” ruling that the firefighter who brought the lawsuit lacks standing to proceed with the case.

“Seldom is so ambitious a case filed on so slight a basis,” US Circuit Judge Raymond M. Kethledge wrote at the outset of the panel’s opinion.

Lead plaintiff Kevin Hardwick didn’t claim in his lawsuit that any of the companies he sued over alleged exposure, which include The 3M Co. and E. I. Du Pont De Nemours and Co., caused the five chemicals found in his blood to end up there, the three-judge Sixth Circuit panel said. The appellate judges vacated a class certification sent the case back to the Southern District of Ohio with instructions to dismiss the case.

The decision, while perhaps expected because of skepticism expressed by the panel during oral arguments in October, likely means the end of the lawsuit firefighter Kevin Hardwick filed against the manufacturers of 10 per- and polyfluoroalkyl substances, better known as PFAS.

The overturned class certification would have covered 11.8 million Ohio residents with at least 0.05 parts per trillion of perfluorooctanoic acid and at least 0.05 parts per trillion of any other PFAS in their blood. Hardwick wanted the chemical makers to pay for a panel of scientists to study the effects of PFAS on the human body and medical monitoring of individual class members whose levels of perfluorooctanoic acid and another PFAS causes them to be at an increased risk of illnesses like cancer.

The new decision comes after oral arguments during which Kethledge posited that the case was “filed before the research was done.”

It also follows one from a different Sixth Circuit panel in September 2022 that expressed skepticism about the class certification for several reasons, including that the 0.05 parts-per-trillion threshold is “undetectable with current technology.” The class also was “predicated on a questionable theory of standing and a refusal to apply a cohesion requirement endorsed by seven courts of appeals,” it added.

The case is Hardwick v. 3M Co., 6th Cir., No. 22-3765, decision 11/27/23.

https://news.bloomberglaw.com/us-law-week/massive-3m-dupont-pfas-class-dismantled-by-sixth-circuit