Read the full article by Pat Rizzuto (Bloomberg Law)
“A federal appeals court panel will hear oral arguments Thursday in a case challenging what’s described as one of the largest class actions in history and one predicted to have ripple effects on PFAS lawsuits nationwide.
The 3M Co., E. I. Du Pont De Nemours and Co., and eight other PFAS producers will challenge a district court’s approval of class that could reach as many as 11.8 million Ohio residents.
Attorneys for Kevin D. Hardwick, the plaintiff-appellee, will support the US District Court for the Southern District of Ohio’s March 2022 decision allowing that class in a case that seeks a scientific panel to examine the health effects of per- and polyfluoroalkyl substances (PFAS).
‘If this case is ‘one of the largest class actions in history,’ it is only because the number of people defendants injured is among the largest in history,’ their brief said.
The US Court of Appeals for the Sixth Circuit’s decision will almost certainly affect PFAS lawsuits across the country ‘no matter what the outcome,’ said Lauren Brogdon, a partner who chairs the crisis management practice group at Haynes & Boone LLP.
The district court ruled a class could be established consisting of Ohio residents with at least 0.05 parts per trillion (ppt) of one PFAS, perfluorooctanoic acid (PFOA), and at least 0.05 ppt of any other PFAS in their blood serum.
If the Sixth Circuit upholds that judge’s ruling, that will likely prompt an additional appeal and encourage similar lawsuits, Brogdon said.
If the court rejects the class designation and remands the case back to the district, its reasons would offer Hardwick’s attorneys insights into ways they could reshape their proposed class, and it would offer plaintiffs ideas about ways to make future classes more viable, she said.
The history of asbestos and other litigation shows that type of learning curve in class action cases, Brogdon said.
Of the two outcomes, Brogdon thinks the appeals court is more likely to remand the district’s ruling. ‘The decision granting review read like an overturn,’ she said.
The 0.05 ppt threshold of PFAS is ‘undetectable with current technology,’ the Sixth Circuit said in granting the appeal. The limits of PFAS detection vary among different laboratories, and few have the capability to test for PFAS in blood, according to a 2022 National Academies of Sciences, Engineering, and Medicine report.
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,’ the court said in September 2022.
And the lower court authorized ‘pursuit of an ill-defined remedy that sits uneasily with traditional constraints on the equity power and threatens massive liability,’ the Sixth Circuit said.
The initial study and science panel could cost tens of millions of dollars, the appeals court said. And ‘if even ten percent of the current class were found to require medical monitoring, defendants’ liability would surpass $10 billion.’
The result is a possible ‘“reverse death knell” scenario: where the certification decision threatens such massive liability that it induces defendants to settle rather than defend the action on the merits,’ the Sixth Circuit said.
Such statements suggest Hardwick’s attorneys are likely to face particularly tough questions during oral arguments, Brogdon said.
Size and Cohesion
It won’t be the first time Hardwick’s attorneys, a team of Taft Stettinius & Hollister LLP attorneys that includes partner Robert A. Bilott, faced tough questions in a PFAS case seeking scientific information.
Bilott helped win Leach v. DuPont, which was highlighted in the movie ‘Dark Waters.’
The victory resulted in a scientific study and medical monitoring for West Virginia and Ohio residents who’d been exposed to the notorious PFAS called PFOA from a DuPont factory in Parkersburg, W.Va.
DuPont and the Chemours Co., which took over much of DuPont’s PFAS production, ultimately agreed to pay $671 million to settle about 3,500 subsequent personal injury cases.
But Hardwick ‘admits he has ‘no idea’ which defendant (if any) exposed him to PFAS,’ the Sixth Circuit said in accepting the case. Judges Raymond M. Kethledge, Amul R. Thapar, and Andre B. Mathis will be on the panel Thursday.
The ‘cohesion requirement’ the Sixth Circuit referenced refers to a group of people having essential things in common to aid a possible remedy, Brogdon said.
‘The larger the class, the more diverse the sources of exposure are, and the more difficult it is to have commonalities’ and the more difficult to determine a way to redress the plaintiffs’ problems if they’re proven, she said.
The case is Kevin Hardwick v. 3M Co., 6th Cir., No. 22-03765, oral arguments set 10/19/23.”