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Massive 3M, DuPont PFAS Class Dismantled by Sixth Circuit

The Sixth Circuit on Monday tossed a lawsuit and dismantled a class that would have covered every Ohioan in a major case over exposure to "forever chemicals," ruling that the longtime firefighter who brought the lawsuit lacks standing to proceed with the case.

Lead plaintiff Kevin Hardwick didn't claim in his lawsuit that any of the 10 companies he sued over alleged exposure, which include The 3M Co. and E. I. Du Pont De Nemours and Co., caused the specific five chemicals found in his blood to end up there, the three-judge Sixth Circuit panel said. Instead, Hardwick refers to the defendants as a collective in his lawsuit, according to the opinion.

"Seldom is so ambitious a case filed on so slight a basis," US Circuit Judge Raymond M. Kethledge wrote at the outset.

The panel vacated a class certification and sent the case back to a Southern District of Ohio judge with instructions to dismiss the case.

The decision, while perhaps expected because of skepticism expressed by the panel during oral arguments in October, likely means the end of the lawsuit Hardwick filed against the manufacturers of 10 per- and polyfluoroalkyl substances, better known as PFAS. The suit is one of thousands that 3M, DuPont, and others have faced over alleged PFAS exposure.

The overturned class certification would have covered 11.8 million Ohio residents 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. Hardwick 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 Kethledge posited during oral arguments that the case was "filed before the research was done," a point he hammered home in Monday's opinion.

"Hardwick has not alleged facts supporting a plausible inference that any of these defendants caused these five particular PFAS to end up in his blood," the judge wrote. "Indeed, Hardwick failed to offer any argument to that effect in his brief or when questioned specifically about this point at oral argument."

The opinion follows one from a different Sixth Circuit panel in September 2022 that expressed skepticism about the class certification for several reasons, including that the 0.05 parts-per-trillion threshold is "undetectable with current technology." The class also was "predicated on a questionable theory of standing and a refusal to apply a cohesion requirement endorsed by seven courts of appeals," it added.

Robert A. Bilott, a partner with Taft Stettinius & Hollister LLP representing Hardwick, said in a statement that the plaintiff's team is evaluating its next legal steps.

"Plaintiff strongly disagrees with the legal and factual bases cited for the decision, which run counter to what we know about history of manufacturing of PFAS in the United States and the harm that this manmade toxin causes," Bilott said.

The case is Hardwick v. 3M Co., 6th Cir., No. 22-3765, decision 11/27/23.

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