On Tuesday, March 8, Judge Edmund Sargus of the Southern District of Ohio issued an 49-page opinion certifying a class in Hardwick v. 3M Co. This is an important case the Focus on Forever team has its eye on.

Plaintiffs in this class action are not seeking compensatory damages for personal injuries. Rather, they seek: (1) medical monitoring; and (2) the establishment of an independent panel of scientists to study the effects of PFAS.

The class definition is broad: “Individuals subject to the laws 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 class was actually narrowed geographically from the plaintiffs’ proposed nationwide class. The Court ruled that "commonality is not met with regard to any individuals subject to the law of those states that do not recognize increased risk of disease as a compensable injury in a negligence and/or battery claim or a standalone medical monitoring claim."

As Focus on Forever authors wrote over a year ago in Law360, state courts are divided on whether to allow claims for medical monitoring when the plaintiff has not been injured, and the modern trend to reject such claims makes "certification of nationwide medical monitoring classes even more difficult."

This will be an important case to watch, particularly given the low levels of PFAS required to be a class member. If the ruling stands, it could snowball to classes based on many more states. In fact, the Court invited further briefing on a class definition extending beyond Ohio but that excludes states that do not recognize medical monitoring claims.

3M has said it is considering opportunities for appeal. Under Rule 23(f), a court of appeals (in this case the Sixth Circuit) may permit an immediate appeal without waiting for a final judgment.