We previously updated regarding the Hardwick v. 3M case that originated in Ohio state court and found its way to the Sixth Circuit Court of Appeals for interlocutory review. We previously wrote about the details of the Hardwick PFAS case and Ohio court’s decision to grant class certification to the lawsuit, which would open the doors to a PFAS lawsuit proceeding with at least ten million people as plaintiffs. The significance of the class certification ruling extends well beyond just the PFAS manufacturers and suppliers that are directly named in the lawsuit, though. Our prediction is that, if the class action lawsuit proceeds, it will open the door to similar cases being filed in other states and downstream companies eventually being added into the lawsuits. The financial impacts of this future development would be enormous to companies that did not manufacture PFAS. Companies, lenders, and investors alike must pay close attention to this case and understand the future potential risks that it poses to businesses.

The Hardwick PFAS Case

Filed in 2018, the Hardwick case was noteworthy at the time due to the proposed scope of plaintiffs that plaintiffs’ counsel sought to include in the case – any U.S. citizen with detectable levels of PFAS in their blood, which is estimated to be over 95% of the U.S. population by various sources. The case was also significant because the lawsuit did not seek monetary damages. Instead, the relief sought from the court was the establishment of a medical monitoring program for affected citizens and the establishment of an independent science panel to study the effects of numerous PFAS on human health.

To anyone who is familiar with the history of PFAS litigation, the latter remedy sought will sound familiar, as Attorney Rob Bilott famously secured the now renowned “C8 Science Panel” in his PFAS litigation in West Virginia nearly two decades ago. The results of that science panel, which studied the effects of PFOA on human health, led to the landmark findings of probable links between PFOA (also known as C8) and adverse impacts on human health. It was the C8 Science Panel findings that significantly influenced litigation activity, regulatory and legislative activity with respect to PFAS, and media attention on PFAS issues.

In March 2022, the Ohio court ruled that the class of plaintiffs that will be allowed to proceed with the lawsuit is “[citizens of Ohio] who have 0.05 parts per trillion (ppt) of PFOA (C-8) and at least 0.05 ppt of any other PFAS in their blood serum.” The Court limited the class to citizens of Ohio instead of citizens in the United States due to the fact that numerous states do not yet recognize medical monitoring as a legal cause of action, and some states do not permit lawsuits to proceed for an increased risk of disease without any proof of actual harm.

However, the same reasoning that limited the proposed class to only citizens of Ohio may also permit for the expansion of the class – something which the Ohio court invited briefing on. In short, the court recognized that, similar to Ohio, there are other states that do allow for medical monitoring claims under state laws, and those states’ citizens may be permitted to join the Ohio class action lawsuit.

The defendants in the case quickly filed for an appeal to the Sixth Circuit, seeking interlocutory review by the court.

Interlocutory Review Arguments

In its September 9, 2022 ruling, the Sixth Circuit Court granted defendants’ request for interlocutory review of the Ohio lower court’s ruling. The Sixth Circuit held that: “We hold merely that when a district court certifies one of the largest class actions in history, predicated on a questionable theory of standing and a refusal to apply a cohesion requirement endorsed by seven courts of appeals, to authorize pursuit of an ill-defined remedy that sits uneasily with traditional constraints on the equity power and threatens massive liability, such a decision warrants further review.”

In their briefing, the defendants focused on three specific arguments as reasons for interlocutory review: (1) the case involves novel and unsettled issues, (2) the costs of litigating the case per the Ohio lower court’s ruling would prohibit the parties from later challenging the class certification and (3) the lower court’s ruling was erroneous for legal reasons such as lack of proof of cohesion of the class.  The Circuit Court agreed with defendants’ argument as reasons why the Sixth Court’s review of the case and ruling was appropriate. Further, the Sixth Circuit Court felt that since the lower court invited briefing as to why the scope of the class should be expanded beyond just citizens of Ohio, the lower court’s ruling deserved a “second look.” In addition, the Circuit Court was especially concerned about the costs associated with the relief sought, which it estimated could be tens of millions of dollars for the establishment of a science panel and tens of billions of dollars for a medical monitoring program.

On December 22, 2022, the defendants filed their initial briefing seeking to have the Sixth Circuit undo the lower court’s class certification in the Hardwick case. The defendants argue that “the unprecedented class authorized by the district court goes well beyond anything a federal court could ever permit….It would trample basic tenets of federal standing, injunction, and class-action law to establish a proceeding that would effectively operate as a quasi-regulatory program of research and potential monitoring far outside the bounds of a Case or Controversy seeking traditional relief for concrete injuries on behalf of a cohesive class.” The defendants argue that the lower court lacked jurisdiction over the case, that the rules (Rule 23) governing class action lawsuits does not permit the class certification that the lower court granted, and the class definition alone makes the proposed class uncertifiable.

Aside from these overarching themes in the briefing, the defendants put forth the argument that a class action lawsuit cannot proceed without proving injury in fact, traceability and redressability – and defendants argue that the plaintiffs cannot prove any of the three requirements. With respect to injury in fact, defendants argue that legal precedent does not permit plaintiffs to sue to determine whether they are injured, as the Hardwick plaintiffs seek to do. With respect to cohesion, the defendants argue that the lower court did not even mandate a cohesion requirement as the law requires. If applied, defendants argue, there is no cohesion in this case because “…there are no common classwide answers and resolving the core issues here requires far too many individualized determinations.” Finally, with respect to redressability, the defendants argue that the plaintiffs are not actually seeking viable injunctive relief – rather, they are seeking money to fund a science panel. “An injunction ordering the requested Science Panel and medical monitoring is not among the traditional kinds of equitable relief that Congress authorized federal courts to award.”

Oral Argument Before Sixth Circuit Court of Appeals

On October 19, 2023, the Sixth Circuit Court of Appeals heard oral argument on the issues that were briefed by the parties. We attended the hearing virtually and the undertones of questioning by the three Judge panel suggested that they were struggling to understand how plaintiff can overcome Article III requirements in this case – particularly, the traceability and “injury in fact” requirements of Article III proceedings.

More specifically, the panel asked counsel for plaintiffs numerous times to articulate evidence showing that each of the sued ten defendants is responsible for PFAS in the plaintiff’s bloodstream, which goes to the traceability element of Article III.

Further, the Court questioned whether the relief sought by plaintiffs – a science panel to study numerous types of PFAS and a medical monitoring program – truly achieved the intended aims, which touches on the redressability requirement under Article III. More specifically, the Court questioned whether a science panel for citizens that have no proven harms from PFAS can pass muster under the Supreme Court’s decision in Clapper v. Amnesty International USA, which requires that a harm be “certainly impending” before Article III relief can be granted. Defense counsel argued that the more appropriate avenue for redressing the alleged harms, which have not yet manifested in plaintiff, would be through the legislature, the Ohio EPA, or a “blue ribbon commission.”

Impact On Downstream Businesses

The Ohio state court ruling in the Hardwick PFAS case was incredibly significant not only to the companies directly involved in the litigation, but also to downstream commerce entities. While the manufacturers involved in the current litigation are the immediate targets, it is not outside the realm of possibility to image companies who utilized PFAS, emitted them into the environment, and allegedly contributed to PFAS in the blood of citizens of Ohio (and other states that might be added to the class) being brought into the lawsuit, or pursued in future lawsuits similar to Hardwick. The Sixth Circuit’s decision to review the lower court ruling and the case as a whole will continue to be closely watched by anyone involved in the PFAS litigation, most immediately to see whether the class of plaintiffs is limited in any way or potentially broadened to include other states.