3M, Chemours Appeal Class of Millions of Ohioans Suing Over PFAS

3M Co., Chemours Co., and other companies want the Sixth Circuit to undo a multimillion-person class of Ohio residents with small amounts of “forever chemicals” in their blood, saying the action for medical monitoring “never should have been certified.”

The class lacks cohesion, class members differ in type, amount, and timing of their alleged exposures to PFAS, and they differ in health risks, conditions, and care, according to the petition filed in the U.S. Court of Appeals for the Sixth Circuit.

Class members also differ in their connection, if any, to the companies’ conduct, according to the Tuesday filing.

None of the companies are said to have specifically done anything to cause the residents to have PFAS in their blood, the filing says.

The U.S. District Court for the Southern District of Ohio certified a class of Ohio residents who have “0.05 parts per trillion (ppt) of PFOA (C-8) and at least 0.05 ppt of any other PFAS in their blood serum” on March 7. Plaintiffs led by Ohio firefighter Kevin Hardwick want a panel to study the health effects of PFAS and use the results of the studies to support a medical monitoring program.

Hardwick gave no details on “how the panel would be established, which PFAS it will study, how it would measure exposures” or “what findings it would reach,” the companies argue. He’s said even less about medical monitoring, such as what illnesses will be studied and what qualifies class members for monitoring, according to the filing.

Specificity is needed, the companies say, especially when the “requested relief is novel, far-reaching, and could cost all defendants combined billions.”

The certified class of more than 11 million is too large, and the stakes are “too high” to skip review of Chief Judge Edmund A. Sargus’ decision, the companies say.

Also, Hardwick failed to show he faced any harm to justify the lower court’s review, according to the filing. He acknowledged that he’s suing because he wants to learn if he’s at risk due to PFAS, and this desire for knowledge doesn’t amount to an injury to support his claims, the companies say.

Jones Day, Bricker & Eckler LLP, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Sidley Austin LLP, McCarter & English LLP, and others represent the companies.

Taft Stettinius & Hollister LLP, Douglas & London PC, and Levin Papantonio Rafferty represent Hardwick.

The case is In re 3M Co., 6th Cir., No. 22-00305, 3/22/22.