Massive Class Certification in PFAS Case Could Have Ripple Effect Across the Country

When Kevin D. Hardwick joined the fire service, his mission was to serve his community. Forty-six years later, the Glendale, Ohio fire chief is reaching beyond smoke and deadly blazes to force companies responsible for manufacturing ‘forever chemicals’ to pay for monitoring the people who were exposed to them.

Chief Hardwick also wants the courts to make companies, including 3M and Chemours, pay for a science panel that would investigate per-and polyfluoroalkyl substances, also known as PFAS, for their effects on the human body and environment. Business and law groups on March 28 told an Appeals Court that the science panel would likely cost chemical companies “untold billions.” The Ohio Sixth Circuit will soon decide whether to involve itself in a class certification dispute that would undoubtedly result in a surge of new lawsuits.

PFAS: Forever Chemicals

Per-and poly-fluoroalkyl substances are known as ‘forever chemicals’ because they do not dissipate in the body or in nature. Initially discovered in 1938 by Dupont and used in the Manhattan Project, PFAS today is prevalent in consumer goods such as microwave popcorn bags, Teflon pans, and firefighting foam. The chemicals have also leached into waterways and drinking water supplies. Estimates place about 97 percent of Americans as having detectible levels of PFAS in their bloodstream. The chemicals have been linked to low birth weight and high cholesterol, among other concerns.

Class Certification

Chief Hardwick asked the court to certify a class consisting of all Americans, but the federal judge limited it to Ohioans whose blood tests register certain amounts of PFAS. According to Attorney Lauren Brogdon, this could include Ohio’s entire population of 11 million people.

To join the class action, Ms. Brogdon said, plaintiffs will have to prove exposure to PFAS at a specific level across the 11 million citizens, prove a significant increased risk of developing a disease, and show that monitoring is necessary. She called Chief Hardwick’s fight “an uphill battle” because Ohio law on medical monitoring is not entirely settled, although it recognizes medical monitoring as either a remedy or an independent cause of action. Many states do not recognize either, according to Ms. Brogdon.

Chief Judge Edmund A. Sargus, to whom the case was assigned in the U.S. District Court for the Southern District of Ohio, asked the chemical companies to prove which states do not recognize medical monitoring as a claim for relief.

Gary Davis, an attorney with Davis & Whitlock, said only a few courts have ruled that medical monitoring can be a remedy and have certified classes for medical monitoring in PFAS cases.

What the Chemical Companies Want

The chemical companies have filed a petition for review, asking the Sixth Circuit to unwind the class certification. The American Tort Reform Association, the U.S. Chamber of Commerce, and the National Association of Manufacturers agree. The groups told the court that the class is unwieldy.

Jennifer Dickey, associate counsel at the U.S. Chamber of Commerce Litigation Center, called Chief Hardwick’s case “regulation by another name” than litigation. The Chamber’s brief argues that Chief Hardwick cannot “lasso” the courts to strongarm chemical companies to assist in investigating whether his claim is actionable or whether millions in the class have any claims.

Chief Hardwick’s Answer

Chief Hardwick explained to the Sixth Circuit on March 31 that the class is oversized due to the “enormous scale of the harm and damage” perpetrated by the chemical companies’ actions.

Mr. Davis called the action precedent-setting because of the class size for medical monitoring and placing the liability with manufacturers.

The case is styled as In re: 3M Co., 6th Cir., No. 22-00305, 4/4/22.

Given the size of this action, the amount of medical record-gathering could be excessive. If you have a client whose medical records could provide insight into potential PFAS contamination, call or send us a contact form to join our network and get the records you need in a timely fashion.