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Ohio PFAS Medical Monitoring Dispute ‘One to Watch,’ Lawyers Say

April 11, 2022, 8:45 AM

The Sixth Circuit will soon decide whether to weigh in on a class certification dispute that could set off a new wave of litigation to force chemical companies, including 3M Co. and Chemours Co., to pay for monitoring exposures to so-called forever chemicals.

Ohio firefighter Kevin D. Hardwick wants a federal court in the state to provide potentially millions of people with medical monitoring for per- and polyfluoroalkyl substances, also known as PFAS, at the expense of the chemical companies. He also wants the companies to pay for a science panel that would study the substances under an order from a federal court in Ohio.

Hardwick’s request for a science panel could cost the companies “untold billions,” business and law groups told an appeals court March 28.

There’s mixed law on whether medical monitoring is a remedy or an independent cause of action, according to Lauren Brogdon, partner in the Energy Litigation Practice Group at Haynes & Boone LLP. Many states don’t recognize it as either, she said. Ohio recognizes medical monitoring, she said, but “even the law there isn’t completely settled.”

Hardwick sought to certify a class of all Americans, but the federal judge in Ohio limited it to people subject to the laws of the state who have specific amounts of PFAS in their blood.

The class could include potentially 11 million people, or the population of the state, according to Brogdon.

Plaintiffs will need to show exposure to PFAS at a certain level across those 11 million, offer common proof of a significant increased risk of developing a disease, and establish that the monitoring requested is necessary, she said.

That is “going to be an uphill battle,” she said.

If the plaintiffs are successful, there will likely be a lot of similar lawsuits in other states, she said. This case is “certainly the one to watch going forward,” according to Brogdon.

VIDEO: PFAS: The ‘Forever Chemicals’

‘Regulation by Another Name’

The chemical companies want the Sixth Circuit to take up their petition for review and undo the class certification. They have support from the U.S. Chamber of Commerce, National Association of Manufacturers, and American Tort Reform Association. The groups told the court that the class is too large and lacks cohesion.

Hardwick’s case isn’t litigation but instead “regulation by another name,” Jennifer Dickey, associate counsel at the U.S. Chamber of Commerce Litigation Center, told Bloomberg Law.

Hardwick can’t “lasso” courts to force the companies to help investigate whether he has a claim, or whether millions of class members have any claims, according to the groups’ brief.

“No federal court can order such relief, whether to one plaintiff or to one-hundred million,” the filing said.

This class is large because of the “enormous scale of the harm and damage” caused by the companies’ actions, Hardwick told the Sixth Circuit March 31. There’s nothing to support the chemical companies’ view that “the more people they injure, the higher plaintiff’s burden to certify a class of those injured” should be, the filing says.

The court’s work on class status isn’t finished, and its full size and scope are uncertain, Hardwick’s filing says. Chief Judge Edmund A. Sargus, who is presiding over the case in the U.S. District Court for the Southern District of Ohio, asked the companies to show which states don’t recognize medical monitoring as a claim for relief.

Very few courts agree that medical monitoring can be a remedy, according to Davis & Whitlock attorney Gary Davis. Very few have certified classes for medical monitoring in PFAS cases, he said.

If a class like this can be certified in Ohio, it presumably could be certified in other states, said Steve C. Gold, an environmental attorney and law professor at Rutgers Law School. If other state laws allow medical monitoring, then there’s presumably a cause of action in those states, he said.

There’s still a long way to go, but a ruling in the plaintiffs’ favor would be precedent-setting in terms of putting liability on manufacturers, Davis said. Also, having a class that large for medical monitoring “would be quite a precedent,” he said.

“I don’t know that class certification here would cause the apocalypse,” Gold said. But this case is interesting because of the magnitude of the alleged exposure, he said. Hardwick alleges the companies exposed “pretty much everybody to a harmful chemical,” he said.

“That’s the basis for the level of concern that you see in the defendant’s and the Chamber of Commerce’s brief,” Gold said.

King & Spalding LLP represents the industry groups, which also represent themselves.

Jones Day; Bricker & Eckler LLP; Paul, Weiss, Rifkind, Wharton & Garrison LLP; Sidley Austin LLP; McCarter & English LLP; Carlile Patchen & Murphy LLP; Crowell & Moring LLP; Porter Wright Morris & Arthur LLP; Roetzel & Andress; Parker Poe Adams & Bernstein LLP; Organ Law LLP; Mayer Brown LLP; and Vorys, Sater, Seymour & Pease LLP 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, 4/4/22.

To contact the reporter on this story: Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com