CINCINNATI (Legal Newsline) - The Sixth Circuit Court of Appeals dismissed what lawyers once hoped would be a class action on behalf of everyone in the country exposed to PFAS “forever chemicals,” saying the lead plaintiff failed to identify which companies made the compounds detected in his blood.
“Seldom is so ambitious a case filed on so slight a basis,” wrote Judge Raymond Kethledge in the opening sentence of a brief opinion dismissing the lawsuit by Kevin D. Hardwick against 3M, Du Pont and eight other chemical makers.
Hardwick, represented by Taft Stettinius & Hollister in Ohio, is a firefighter who sued over the presence of five PFAS compounds in his bloodstream. His lawyers proposed a nationwide class action that would have included virtually every adult in the country, since there are thousands of PFAS compounds in products, from nonstick pans to firefighting foam and cosmetics, and they persist in human tissue for years.
A federal judge last year reduced the class to Ohio citizens only, which still would have meant more than 11 million class members. The Sixth Circuit granted an extraordinary stay of the litigation in September, saying Hardwick had come “up short” on evidence any particular defendant exposed him to PFAS.
A three-judge panel on the Sixth Circuit followed that reasoning in its Nov. 27 decision, dismissing Hardwick’s case for lack of standing because he couldn’t identify who’d made the chemicals in his blood or whether they had caused him any injuries. The court labeled his claims “conclusory” and insufficient to proceed to trial against the companies he chose to sue.
“Hardwick does not know what companies manufactured the particular chemicals in his bloodstream; nor does he know, or indeed have much idea, whether those chemicals might someday make him sick; nor, as a result of those chemicals, does he have any sickness or symptoms now,” Judge Kethledge wrote.
“Yet, of the thousands of companies that have manufactured chemicals of this general type over the past half-century, Hardwick has chosen to sue the ten defendants present here.”
Hardwick’s lawyers treated the defendants “as a collective,” the judge went on, with the word “defendants” “the subject of nearly every verb” in his complaint. But the U.S. Supreme Court has long made it clear “standing is not dispensed in gross,” he wrote.
“That means a plaintiff cannot sue ten defendants—by lumping them all together in his allegations when the more particular facts would allow him to proceed against only one (or none),” the court said.
Hardwick’s case was supported by the Environmental Working Group, which lobbies for stricter environmental laws and frequently works in concert with plaintiff attorneys. The defendants were represented on appeal by Paul D. Clement of Clement & Murphy.
While the chemical companies won this case, they still face thousands of lawsuits over PFAS by individuals, municipalities and water companies. A proposed $12.5 billion settlement of PFAS claims by 3M has run into trouble as water wholesalers and others left out of the agreement file objections.