COLUMBUS, Ohio (Legal Newsline) – The judge overseeing a proposed massive class action that could affect almost every person in America won’t let one company appeal his ruling that kept the case going against it.
Judge Edmund Sargus on Feb. 17 denied the petition for permission to appeal filed by Japanese company Daikin Industries, which is one of many businesses facing litigation over chemicals known as PFAS that are in the bloodstreams of nearly every American.
Researchers say data regarding the health effects of PFAS is still lacking, but the class action by Kevin Hardwick pursues claims on behalf of everyone with a measure of PFAS in their bloodstream.
In October, defendants Archroma Management and Daikin Industries filed a motion asking Sargus, on the bench in Ohio's southern district, to reconsider his earlier denial of motions to dismiss filed by foreign companies named in the case. The motions to dismiss claimed a lack of personal jurisdiction.
Sargus wouldn’t reconsider and he won’t let Daikin file an interlocutory appeal. The issue the company raises was already decided in a 2020 decision by the U.S. Court of Appeals for the Sixth Circuit known as Malone, Sargus said.
“The Court concludes with an observation,” Sargus wrote. “The motion addressed in this opinion is without merit. Although Daiken never asked for one, a conference will be scheduled to craft an expedited discovery timeline dealing solely with the issue of personal jurisdiction.
“The defendant is entitled to contest personal jurisdiction; it is not entitled to distort the caselaw that applies in this case.”
DuPont, 3M and others have filed their opposition to class certification in the case, complaining the proposed class would include about 330 million people exposed to any of the 5,000 distinct chemicals in the PFAS family.
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.
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 points per trillion 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.