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PFAS manufacturers obtain appellate victory dismissing class action seeking damages for every resident of Ohio  

12/4/23

By: Kevin G. Kenneally, David Harding and Christina Morgan 

“Seldom is so ambitious a case filed on so slight a basis.”

–U.S. Court of Appeals for the Sixth Circuit 

On November 27, 2023, the U.S. Court of Appeals for the Sixth Circuit delivered chemical makers 3M, Dupont, and eight other companies a huge victory in their ongoing, growing legal battles regarding the manufacture of chemicals known as “forever chemicals” because the PFAS compounds resist breakdown in the environment and in human bodies. The ruling caused dismissal of a class action suing on behalf of every resident of Ohio, some 11.8 million people. 

The case, In RE: E.I. du Pont de Nemours and Co. C-8 Personal Injury Litigation (Hardwick v. 3M Company, et al.), No. 22-3765 (6th Cir., dated 11/27/2023), noted that PFAS and PFOAs are part of a family of thousands of chemicals — manufactured by thousands of companies — “whose usage is ubiquitous in modern life.” The Court found the class action to be improper because it sought damages for all alleged harm to every state resident from only a small number of the companies many of which were not shown as the source of harm to the lead plaintiff or to any class member. The federal appellate court vacated the prior ruling by the U.S. District Court that permitted a wide-ranging class to be certified because, among other reasons, the plaintiffs couldn’t show whose product caused the class members’ blood to be allegedly contaminated and they had no current illnesses related to the named defendants’ products.  

Lead Plaintiff Kevin Hardwick, a former firefighter, filed the class action lawsuit in 2018, alleging that the selected manufacturers caused his blood to be contaminated with trace quantities of PFAS. He claimed to fear future potential health risks of cancers and thyroid disease, among many other maladies claimed to arise from PFAS exposure and sought a court order that the manufacturers must fund medical monitoring for every class member and state resident. Mr. Hardwick’s motion to certify a class originally included every person residing in the United States as a plaintiff but was only granted in part. The District Court instead certified the class in a more limited manner, but still encompassing every person residing in the State of Ohio, some 11.8 million people.  

The Court of Appeals overturned the ruling and vacated the District Court’s certification order, instructing the District Court to dismiss the case in full. The ruling held that Mr. Hardwick lacks standing to bring the lawsuit. In order to have standing, a party must (1) have suffered an injury, (2) trace the injury to the defendant, and (3) show that the court can redress the injury. The Court of Appeals found no standing because there was no proof or plausible allegation of “traceability” or connection between any of the defendant companies’ specific chemicals to an actual injury alleged by Hardwick. Traceability requires the claimant to show that his “‘injury was likely caused by the defendant,” in this case, specifically must be traced to each of the ten defendants named in the lawsuit. For example, where a blood draw allegedly revealed the trace presence of five PFAS compounds in Mr. Hardwick’s bloodstream, Mr. Hardwick must be required to demonstrate that each named defendant more than likely was the source of at least one of those five PFAS compounds claimed to be in his bloodstream.   

The Court of Appeals found that Mr. Hardwick improperly treated the defendants as a “collective,” failing to identify each company’s specific product that is present in his blood.  Additionally, the Court found that Mr. Hardwick’s allegations were “conclusory,” not based on facts rising to the level of plausibility, because he did not even allege that any of the named companies manufactured any of the five PFAS compounds allegedly in his blood samples, nor did he allege “any plausible pathway” where the companies contaminated his system with any of the five compounds. As a result, the Court of Appeals held Mr. Hardwick had not shown that PFAS in his system was likely caused by each of these ten defendants and, therefore, he did not have standing to bring the lawsuit against these manufacturers. 

While the appellate decision relies on the issue of standing, the Court of Appeals expressed skepticism about the PFAS claims and the lack of scientific and factual proof proffered by the Plaintiffs against the chemical makers. Because PFAS chemicals are commonplace and exposure could occur in all aspects of daily life, the Hardwick case theory, if successful, would result in financially-crippling liability for chemicals that these defendants did not make or distribute and for harm by PFAS the defendants potentially did not cause. This decision may have positive implications for insurers, manufacturers and self-insured companies increasingly impacted by PFAS mass tort personal injury litigation across the country.  If the certification of this class had been permitted to stand, the case would have opened the door to similar sized, population-wide class actions and mass torts alleging PFAS-related injuries in every state and federal court jurisdiction.  

For more information, please contact Kevin Kenneally kevin.kenneally@fmglaw.com, David Harding David.Harding@fmglaw.com, or Christina Morgan christina.morgan@fmglaw.com of the FMG PFAS and Mass Tort Litigation Practice Group.