CINCINNATI (Legal Newsline) - A class action on behalf of virtually every citizen of Ohio has been halted temporarily, after the Sixth Circuit Court of Appeal granted extraordinary relief to PFAS manufacturers who argued a judge exceeded his authority by allowing the massive case to proceed.
Saying the proposed class suffers from numerous serious legal flaws, the Sixth Circuit referred the case to a merits panel to decide whether it should be allowed to move forward. The appeals court cited what it described as the “reverse death knell” doctrine, under which the merits panel’s decision likely will decide whether defendants are forced to settle for billions of dollars to avoid the risk of losing a case involving nearly 12 million people.
A footnote in the Sixth Circuit’s Sept. 9 decision could have implications for another massive case before the court: opioid litigation. In it, the appeals court questioned the authority of federal judges to award money damages in the guise of injunctive relief, an argument made by pharmacy defendants who have been ordered by U.S. District Judge Dan Aaron Polster to pay some $651 million in “abatement” expenses to combat opioid addiction in two Ohio counties.
In March, U.S. District Judge Edmund Sargus certified a class of Ohio citizens with at least 0.05 parts per trillion of PFAS in their blood, rejecting a proposal by plaintiff lawyers to certify a nationwide class. If plaintiffs win, they would ask the judge to require PFAS manufacturers to fund a “science panel” to study whether the ubiquitous chemicals, which come in thousands of different formulations, cause disease.
The defendants filed for interlocutory appeal at the Sixth Circuit under Rule 23(f) of the Federal Rules of Civil Procedure, a 2018 addition to the rules that allows parties to appeal an order certifying a class.
“We have no doubt that interlocutory review of a class-certification decision is an extraordinary procedure,” the appeals court said. “But as should be clear, this is an extraordinary class.”
The defendants argued Hardwick lacks standing because he failed to show an injury and the class isn’t cohesive since everybody was exposed to different PFAS compounds in different ways. Since the plaintiffs propose a class of all people with PFAS blood levels above 0.05 parts for trillion and that is currently undetectable with current technology, the case effectively seeks to cover all 11.8 million Ohio residents. The Sixth Circuit agreed the defendants had raised strong arguments that might succeed.
The plaintiffs challenged the 6th Circuit’s authority to consider Hardwick’s standing, an argument the court said “lacks merit.” Hardwick argued the presence of PFAS in his blood was an injury, similar to battery. But even if that is true, the court said, the proposed science panel wouldn’t do anything to remedy his injury.
Hardwick “claims to be sufficiently likely to develop a disease to have Article III standing, but because he actually has no idea about his riskof future disease, he wants an injunction creating a science panel to tell him if he’s at risk of developing a disease,” the court said.
In a footnote with possible implications for opioid litigation, the court also questioned the judge’s power to order the defendants to pay for a science panel, noting the equitable powers of federal judges are limited to those “traditionally accorded by courts of equity” in England before the American Revolution. Walmart, Walgreens and CVS have appealed Judge Polster’s order requiring them to pay $651 million in what the judge described as “abatement” allowed under his equity powers, but which the defendants say is impermissible money damages.
Perhaps more significantly, the appeals court said, Hardwick “comes up short” on evidence any particular defendant exposed him to PFAS. The litany of possible pathways through which Hardwick might have been exposed calls into question the district court’s view that mere allegations about traceability sufficed,” the court said.
The court also raised doubts about the feasibility of class litigation over PFAS, saying the thousands of different chemical compounds makes it hard to say there would be a common answer to whether any given exposure led to an injury. Even if the plaintiffs got over that hurdle, the court went on, to establish a mandatory class under Rule 23(b)(2) they must show the class is cohesive.
Finally, the court cited the “death knell” doctrine, which allows for interlocutory appeals of class orders if the outcome could end the litigation entirely. The term sometimes refers to orders that fail to certify a class, the court said, but this case is a “reverse death knell” scenario where certification of such a massive class will likely force the defendants to settle.
“Though the relief plaintiffs seek purports to be an `injunction,’ it would have the practical effect of extracting billions of dollars from defendants,” the court said. A similar settlement in West Virginia cost $11,000 per class member, the court noted, implying a cost of $10 billion in Ohio.
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.