On September 9, 2022, the Sixth Circuit Court of Appeals granted interlocutory review of an enormously significant PFAS class action lawsuit filed in Ohio – Hardwick v. 3M. We previously wrote about the details of the Ohio court’s decision to grant class certification to the lawsuit, which would open the doors to a PFAS lawsuit proceeding with at least seven million people as plaintiffs. The challenge to the class certification will be a significant pivot point in the PFAS litigation and will determine the speed at which other similar class action lawsuits follow.

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 PFAS Hardwick 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.

Sixth Circuit Grant of Interlocutory Review

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.

Impact On Downstream Businesses

The Ohio state court ruling 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.