Sixth Circuit Grants Review of PFAS Class Action Lawsuit

Defendants in an Ohio-based PFAS lawsuit received a mid-litigation win when the Sixth Circuit Court of Appeals approved the defendants’ petition to review the trial court’s class certification of a wide group of individuals. The Sixth Circuit will now review the decision to determine whether or not the trial court properly certified the class.

Regulatory Background

• Per- and polyfluoroalkyl substances (PFAS) are a large class of chemicals used in many different industries, which degrade in the environment very slowly. Exposure to certain levels of PFAS have been demonstrated to lead to reproductive or developmental effects as well as other illnesses.
• PFAS are able to repel oil and water and are produced for use as surface treatments for soil, stain, and water resistance; for textiles, paper, and metals; and most notably for fire suppression (foams). They are used in cleaning products, cookware, in leather, paint, and wire insulation.
• PFAS contamination originates from industrial facilities where PFAS are manufactured or used, as well as from military bases, commercial airports, and petroleum refineries that use aqueous film-forming foams (AFFFs) containing PFAS. In addition, the disposal of all the consumer goods coated with PFAS end up in landfills l which can leach PFAS into the groundwater and soil.

How Class-Action Lawsuits Work

• A class-action lawsuit is one where a group of people suffering similar injuries join to file claims against a common defendant. If the group prevails in court or reaches a settlement with the defendant, the resulting judgment or settlement award is divided between the members of the class.
• Individuals seeking to be certified as a class must petition a court to recognize the class and must formally submit a claim and prove seven prerequisites to be properly certified. Those prerequisites are: (1) an adequate definition of the class, (2) an ascertainable number of class members based on objective criteria (here, people with certain concentrations of PFAS in their blood), (3) numerosity (the class must be large enough that joining all plaintiffs together in a normal lawsuit would be impracticable), (4) the capacity of the class-wide proceeding to generate common answers, (5) the claims and defenses of the representative parties in the case are similar or the same as those of the class, (6) that the representative parties will properly protect the interests of the class, and (7) the court must determine that the class is proper.
• Class-action lawsuits are a popular way for both individuals and companies to address health claims resulting from exposure to chemicals, including the Roundup Multi-District Litigation (MDL) in the Northern District of California as well as another PFAS MDL focusing on AFFFs containing PFAS substance in the Southern District of California.

The Case

• In 2018, a class of plaintiffs filed suit against DuPont, its subsidiary, Chemours, and 3M seeking to certify a nationwide class of every individual in the U.S. with PFAS in their blood – nearly the entire nation.
• More specifically, the litigation focuses on AFFFs used in firefighting foams as well as other PFAS-based products (such as flame-retardant fabrics used in residential furniture).
• The named plaintiff in the lawsuit, Kevin Hardwick, is a former firefighter who alleges that he was exposed to PFAS through his flame-retardant firefighting uniform and from AFFFs. However, he does not allege which defendant (if any) exposed him to PFAS, and he does not claim an associated health condition as a result of his exposure. Instead, he claims that he faces a heightened risk of developing certain PFAS-related diseases later in his life but does not know how much of a risk he faces.
• Taking a step towards a nationwide certification, the District Court certified every individual “subject to the laws of Ohio” that has PFAS in their blood, which the parties acknowledge comprises almost 12 million people. Hardwick and legal counsel for the class also requested an injunction from the court that would order the defendants to fund a “science panel” to study the effects of PFAS and potentially provide medical monitoring for every member of the class.

The Review

• The defendants then petitioned the Sixth Circuit to review the class certification, and the Sixth Circuit granted the petition with this ruling.
• The ruling focuses defendants’ arguments on why interlocutory review is appropriate. Interlocutory review is a rarely granted option for parties to petition a higher court to decide a discrete issue in a case before the case proceeds to a final ruling in the lower court. Traditionally, an appeals court can only hear a case after there has been some sort of a final ruling (such as a judgment or an order dismissing the case). However, interlocutory review provides a narrow set of circumstances where the appeals court can hear the case.
• The defendants argued four points on why class certification was improper: (1) that Hardwick lacked standing (i.e., could not bring the case) because he failed to show any injury traceable to the defendants and that the courts cannot order the remedy he has requested, (2) that the proposed class is insufficiently cohesive, (3) the plaintiffs in the case do not describe their requested relief with adequate specificity, and (4) the district court failed to consider the effect of the class certification on the damages claims of absent class members.
• The Sixth Circuit appeared to give significant credence to the defendants’ arguments, and questioned Hardwick’s standing to bring the case in the first place. The Sixth Circuit’s review of the parties’ briefs convinced the court that there was “sufficient ‘weakness’ in the district court’s [standing] decision” which merited review by the Sixth Circuit.
• Finally, the Sixth Circuit also granted review based on the fact that its decision on the class certification may sound the “death knell” for the lawsuit. In most cases, the “death knell” is employed where plaintiffs abandon their claims if class certification fails. However, the court noted that case here is more of a reverse “death knell” situation, where if the class is certified, the liability may be so great that it induces the defendants to settle the case rather than proceed with the litigation.
• The Sixth Circuit finished the ruling by emphasizing its limited nature, explaining that the lesson to take out of the ruling for future cases is that when a district court certifies one of the largest class actions in history predicated on questionable theories of standing and does not define the requested remedy well, the district court’s decision merits further review from an appeals court.

Future Developments

• The Sixth Circuit’s ruling significantly questioned the plaintiffs’ case as it granted review of the class certification. Although the plaintiffs may make a more fruitful set of arguments during the interlocutory review process, the court appeared to initially side with the defendants’ reasoning. If the Sixth Circuit denies class certification, the plaintiffs may abandon their claims, leading to a dismissal by the district court.
• On the other hand, if the Sixth Circuit upholds the class certification, the results could be disastrous for the defendants. Another PFAS settlement proposal mentioned by the Sixth Circuit allocated an average of $11,000 per class member for medical monitoring, meaning that the defendants’ liability for medical monitoring could surpass $10 billion. In addition, if the class were expanded beyond Ohio, the defendants’ liability could balloon even further.
• The court will now solicit briefs from the parties on the class certification and will then likely hold oral arguments on the issue. Based on the outcome of oral arguments, the court will either issue an opinion or potentially request additional briefing on issues discussed at oral argument.
• For manufacturers of products containing PFAS, the Sixth Circuit’s decision on the class certification could impact how individuals bring and how companies defend against PFAS-related injury lawsuits. Especially in states that allow for medical monitoring similar to Ohio, the outcome of this case could determine how to best approach a PFAS injury case in the future.

Contains previous research by Patricia Iscaro, Esq.

To contact the author of this article, please email Walker Livingston ([email protected])
To contact the editor of this article, please email Patricia Iscaro ([email protected])

Key Dates and Documents

Sixth Circuit Opinion No. 22-0305.pdf