COLUMBUS, Ohio (Legal Newsline) - The bold class action lawsuit that once hoped to include virtually every American has officially ended.
The U.S. Court of Appeals for the Sixth Circuit tossed the case brought by plaintiff Kevin Hardwick in November, writing "Seldom is so ambitious a case filed on so slight a basis." The lawsuit had hoped to be on behalf of every person in the United States who has been exposed to chemicals known as PFAS.
That decision was reached by a three-judge panel of the court. In January, Hardwick's request for the full judiciary of the Sixth Circuit to reconsider was rejected, leading to the trial court entering a final judgment on March 11.
That trial court in Ohio had rejected the call to certify a class of all Americans but did certify one of everyone in Ohio before being overturned by the Sixth Circuit.
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.
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.
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 Raymond 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 like 3M and DuPont “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. Two huge settlements have been reached with DuPont and 3M, though final approval has not yet been granted.