Large 3M, DuPont PFAS Class Push in Ohio Hits Skeptical Court

A Sixth Circuit panel on Thursday was leery of a push from a longtime firefighter suing “forever chemicals” manufacturers to maintain a class certification that could cover every Ohioan, with one judge saying it appeared the lawsuit was filed without proper due diligence.

Judge Raymond M. Kethledge, during oral arguments in a mostly full Cincinnati courtroom, repeatedly asked Aaron M. Herzig, a Taft Stettinius & Hollister LLP lawyer for lead plaintiff Kevin Hardwick, where in the record it says that the 10 companies being sued are individually responsible for the presence of per- and polyfluoroalkyl substances (PFAS) in Hardwick’s bloodstream.

After Herzig said he didn’t immediately know where in the record that was, Kethledge said it appeared the “problem with this case” was that it was “filed before the research was done.”

“The case got filed first and we’re sort of figuring it out later, it appears, unless I’m misunderstanding,” Kethledge said. Herzig responded by saying the case is different than other personal injury lawsuits.

The lively exchange was one of several that took place during Herzig’s defense of a Southern District of Ohio judge’s certification of what the Sixth Circuit previously described as one of the largest classes in history, as it could include as many as 11.8 million Ohio residents exposed to PFAS.

The 3M Co., E. I. Du Pont De Nemours and Co., and eight other producers of the chemicals are challenging that class, which the trial judge said consisted of Ohioans 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 wants the chemical makers to pay for a panel of scientists to study the effects of PFAS on the human body. He also wants 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 case is being closely watched and could have reverberations for other PFAS and chemical-exposure lawsuits.

Harm from Defendants

As for tracing harms to individual defendants, Judge Amul R. Thapar also noted that there are many more chemical producers beyond who was sued and that it appeared Hardwick chose most of them at random.

Herzig disputed that and said, “This may be something that you’re not used to but it’s because we’re not used to it. When in the history of our country, or going back to the English chancery court, has an entire industry poisoned an entire population?”

Thapar didn’t seem persuaded, at one point telling Herzig that “it seems like what this case is about is the legislature and the executive branch haven’t given you the relief you sought, so you’re coming to us to ask us to remedy that.”

The judge’s comment echoed a statement made earlier by Paul D. Clement of Clement & Murphy PLLC, who represents the chemical companies.

Clement also said the early scientist panel request would have never been approved in the litigation surrounding asbestos or tobacco, arguing it “would have been unheard of in equity at that time and it frankly would have distorted all of the subsequent litigation.”

‘Ill-Defined Remedy’

Thursday’s arguments come a year after a different Sixth Circuit panel expressed skepticism about the class certification.

The 0.05 parts-per-trillion threshold is “undetectable with current technology,” the panel noted when it granted the appeal in September 2022. 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 trial judge also authorized “pursuit of an ill-defined remedy that sits uneasily with traditional constraints on the equity power and threatens massive liability,” according to the first panel.

That panel also raised a possible “reverse death knell” scenario: where the certification could create such a huge liability for defendants that they choose to settle rather than defend the lawsuit. The initial study and science panel could cost tens of millions of dollars, that panel said. The defendants could be on the hook for more than $10 billion if just 10% of the current class needed medical monitoring, it noted.

The case is Hardwick v. 3M Co., 6th Cir., No. 22-3765, oral argument 10/19/23.