COLUMBUS, Ohio (Legal Newsline) – In the case of Every American vs. 11 companies, defendants are hoping to stop class action lawyers from establishing “the most ambitious class imaginable.”
DuPont, 3M and others filed their opposition to class certification in an Ohio lawsuit that seeks to create a medical monitoring program and a scientific research project to study the effects of PFAS – a group of chemicals in the bloodstreams of virtually all Americans.
The exact health effects of PFAS aren’t known but are debated, nonetheless, in places as high as Congress.
Kevin Hardwick’s lawsuit doesn’t allege he has been made sick by PFAS but that the companies should still have to pay to track his – and everyone’s – health.
“By Plaintiff’s calculations, this would include approximately 330 million people, a number roughly equal to the entire population of the United States,” says the companies’ motion to dismiss.
“The class claims would implicate exposures to any of 5,000 or so distinct chemicals regardless of the chemicals’ individual characteristics, the countless potential third-party sources of them, the identity of the thousands of companies potentially tied to them, or any given class member’s individual circumstances of exposure.”
PFAS is a group of chemicals that were used in products like non-stick cookware and firefighting foam. A research project set up by DuPont to settle Ohio and West Virginia contamination claims earlier this century showed probable links to six diseases, including kidney and testicular cancers, but the epidemiology used has been called less than conclusive.
One critic calls the research “lousy” even as advocates rely on it to push regulations. The Environmental Protection Agency has issued a health advisory for water with 70 parts per trillion, but has not issued a formal maximum contaminant level.
States have, though, that are far below 70 ppt. Some of them have also hired private lawyers on contingency fees to sue 3M, DuPont and others.
Hardwick’s lawyers have asked the court for "the establishment of an independent panel of scientists" who would be "jointly selected by the parties" and funded by defendants. The panel would research alleged health effects of PFAS and report their findings, which would be "definitive and binding on all the parties," the original complaint said.
Hardwick is represented by lawyers at Taft Stettinius in Columbus, Ohio; Douglas and London in New York; and Levin Papantonio in Pensacola, Fla.
The defendants contend those lawyers have failed to offer a single expert report the proposed level for class members – 0.05 ppt of PFAS in blood is detectable or meaningful.
“A motion for class certification, and particularly one of such unprecedented size and scope, needs to rest on more than the imagination of counsel, however creative or ambitious,” the companies wrote.
The defendants argue:
-The complaint fails to meet a cohesiveness standard, as different class members are subject to different state laws and present different exposure histories;
-The medical monitoring and study relief requested is not adequately specified;
-The class definition is overbroad;
-Hardwick is not an acceptable class representative; and
-The proposed class members lack standing because they are not injured.