Recently, a three-judge panel of the US Court of Appeals for the Sixth Circuit granted interlocutory review of an enormous class action that could significantly impact the future of PFAS litigation. The decision came as defendants in Hardwick v. 3M, currently before the US District Court for the Southern District of Ohio, appealed the district court’s decision certifying what may be the largest class of plaintiffs in history. The forthcoming ruling is of particular import because it has the potential to be a landmark ruling for class actions and considerably affect the future of PFAS litigation.
Filed in 2018, named plaintiff Kevin Hardwick, a former firefighter, alleges exposure to PFAS from his gear and the fire suppressant used in his line of work. At the time, plaintiff sought nationwide certification of a class consisting of “any individual residing within the United States… with 0.05 parts per trillion (ppt) or more of PFOA and at least 0.05 ppt or more of any other PFAS in their blood serum.” For context, many reports indicate the proposed class potentially consists of 95% of the US population.
Earlier this year, the Ohio district court limited class certification to all Ohio residents who have “0.05 parts per trillion (ppt) PFOA (C-8) and at least 0.05 ppt of any other PFAS in their blood serum.” The district court explained this was the most appropriate step because, while Ohio recognizes medical monitoring claims, a number of other states do not recognize such a claim. That said, the court also stated it might expand the class to other states that also recognize these claims. Even reducing the class to only Ohio residents results in a certified class of at least 11 million people, making it the largest class action in history.
Interestingly, the lawsuit does not seek monetary damages. Rather, plaintiffs seek injunctive relief through the establishment of a science panel to study the adverse impact of PFAS on human health, as well as medical monitoring for its affected class members.
Given the potential for massive liability due to the size of this class certification and the relief sought, defendants appealed the court’s class certification. Defendant’s arguments focused on class standing, cohesiveness, and the relief sought.
In its Order, the Sixth Circuit addressed several issues it found concerning regarding the district court’s decision. Addressing Article III standing, the Sixth Circuit found that the presence of PFAS in a plaintiff’s blood could potentially qualify as an injury-in-fact, due in part to Ohio’s recognition of medical monitoring claims after exposure to toxic substances and plaintiff analogizing the claim to battery. However, the court felt the relief sought—a science panel and medical monitoring—presented issues with regard to redressability as it would not do anything to address the presence of PFAS in plaintiff’s blood, nor prevent more from entering it. Further, the court also found plaintiff’s lack of evidentiary proof of a causal connection between his alleged injuries and the conduct of the defendants presented issues in terms of traceability.
Next, the court noted its concerns with the class certification, finding the fact that class members were likely exposed to PFAS “in different ways, in different amounts, and at different times” to be at odds with the commonality requirement for class certification and principles of class cohesiveness.
Lastly, the court addressed tertiary issues it found to be particularly important in its decision to review the district court’s class certification. The Sixth Circuit stated that a class certification of this magnitude creates a “reverse death knell” scenario “where the certification decision threatens such massive liability that it induces defendants to settle rather than defend the action on its merits.” Additionally, the court also felt it important to mention that, as stated in its ruling, the district court was considering expanding the class, which “underscores the need for a second look.” In sum, the Sixth Circuit found that defendants’ arguments presented “unsettled and important questions,” and granted their appeal for interlocutory review.
Nonetheless, the Sixth Circuit cautioned that resolution of whether the class may go forward presently awaits the merit panel’s review. Specifically, the court stated “[W]e hold merely that when a district court certifies one of the largest class actions in history, predicated on a questionable theory of standing and a refusal to apply a cohesion requirement endorsed by seven courts of appeals, to authorize pursuit of an ill-defined remedy that sits uneasily with traditional constraints on the equity power and threatens massive liability, such a decision warrants further review.”
If this class certification is approved, it could open the flood gates to the filing of similar cases in other jurisdictions, with more defendants added to the litigation. The impact would be massive, not only on manufacturers of PFAS, but also the downstream companies that manufactured, sold, and/or used products that contained PFAS, that may be pursued in later litigation for their alleged contribution to environmental PFAS exposure. Hence, considering the expansive impact this anticipated class certification ruling may have, we recommend that all companies that may have manufactured, sold, and/or used a product that contained PFAS closely monitor this case and other similar matters to assess potential liability.