Judge dismisses PFAS class-action suit that targeted range of materials companies

A three-judge panel for the U.S. Court of Appeals' Sixth Circuit has thrown out a large class-action lawsuit filed by a Glendale, Ohio, firefighter against 10 chemical companies over exposure to PFAS chemicals.

The two most prominently named defendants in the personal injury lawsuit, first filed in 2018, are 3M Co. and E. I. DuPont de Nemours and Co.

3M earlier this year announced that it will exit the production and sale of PFAS-containing products by the end of 2025.

"Seldom is so ambitious a case filed on so slight a basis," Circuit Judge Raymond M. Kethledge writes in his Nov. 27 opinion, remanding the case back to a Southern District of Ohio court (where it was initially filed) for dismissal. "The defendants now appeal that order, arguing among many other things that (plaintiff) lacks standing to bring this case.

"We agree with that argument, and remand with instructions to dismiss the case."

The lead plaintiff in the case, retired Glendale firefighter Kevin Hardwick, states in the lawsuit that "his injury" is the presence of five PFAS chemicals found in his blood, which Hardwick attributed to firefighting foam.

Robert A. Bilott, who represented Hardwick from Taft, Stettinius and Hollister L.L.P. in Cincinnati, did not return requests for comment from Rubber News.

"The gravamen of Hardwick's complaint is that his bloodstream contains trace quantities of five chemicals — which are themselves part of a family of thousands of chemicals whose usage is nearly ubiquitous in modern life," Kethledge states in the panel's opinion. "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.

"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 10 defendants present here."

Also named in the massive class-action suit are Archroma Management L.L.C., Arkema Inc., Arkema France SA. AGC Chemicals Americas Inc., Daikin Industries Ltd., Daikin America Inc. and Solvay Specialty Polymers U.S.A. LLC.

Had the lawsuit been successful, it would have covered 11.8 million Ohioans "with at least 0.05 parts per trillion of perfluorooctanoic acid and at least 0.05 parts per trillion of any other PFAS in their blood."

Defendants argued during oral arguments before the Sixth Circuit appellate court in October that such levels are nearly undetectable.

Hardwick stated he wanted the chemical makers to "pay for a panel of scientists to study the effects of PFAS on the human body" and medical monitoring of individual class members whose levels of perfluorooctanoic acid and another PFAS causes them to be at an increased risk of illnesses like cancer.

But the Sixth Circuit called Hardwick's claims both "collective" and "conclusory," and stated that Hardwick "has failed to carry that burden as to any of the defendants here."

"The Supreme Court has long made clear that 'standing is not dispensed in gross,'" Kethledge writes. "That means a plaintiff cannot sue 10 defendants — by lumping them all together in his allegations — when the more particular facts would allow him to proceed against only one, much less none."

Kethledge further states that Hardwick's "conclusory claims fall short even at the pleadings stage."

The appeal had oral arguments at the same Sixth Circuit appellate court Oct. 23.

"Nowhere in the complaint ... did Hardwick allege that any of these defendants, much less every one of them, manufactured any of those five compounds," Kethledge states.

Nor does Hardwick allege, according to the court's opinion, how the five chemicals got into his bloodstream, stating during oral arguments that he did not know if the firefighting foam contained the PFAS chemicals that were found in his blood.

"Indeed, Hardwick failed to offer any argument to that effect in his brief or when questioned specifically about this point at oral argument," Kethledge states in the seven-page dismissal. "He elides rather than meets the Supreme Court's requirements as to pleadings and traceability.

"Hardwick therefore lacks standing to proceed with his claims."

The suit is one of thousands that 3M, DuPont and others have faced over alleged PFAS exposure.

Just in June, for example, 3M reached settlement agreements with public water suppliers throughout the U.S. in which it will pay more than $10.3 billion over the next 13 years to assist with PFAS mitigation efforts. It also is party to a range of other legal actions.

While 3M has pledged to help its customers throughout the transition and meet its contractual obligations during that time, the firm said it "will continue to remediate PFAS and address litigation by defending ourselves in court or through negotiated resolutions, all as appropriate."

In every case, the family of chemicals at issue are PFAS, short for per- and polyfluoroalkyl substances.

All PFAS compounds feature strong bonds between carbon and fluorine atoms, however different kinds of PFAS differ as to the length of their carbon chains and isomer type (branched as opposed to linear).

PFAS entered mass production in the 1950s and have been used ever since in myriad applications, including medical devices, automotive interiors, waterproof clothing and outdoor gear, food packaging, firefighting foam, non-stick cookware, ski and car waxes, batteries, semiconductors, aviation and aerospace, construction, paints and varnishes, and building materials.