In our last issue we covered the expansive class certification in the Hardwick v. 3M Co. case pending in the Southern District of Ohio. As we noted at the time, Rule 23(f) permits an immediate appeal without waiting for a final judgment. As expected, defendants decided to take advantage of that right and filed a Petition for Permission to Appeal in the Sixth Circuit. Defendants’ petition identifies three district court errors that they argue justify interlocutory review by the Sixth Circuit:

• First, the district court ruled that the injunctive relief class does not have to be truly cohesive. Defendants point out that the class here is comprised of members who differ in terms of the PFAS chemical exposure at issue, dose, source, and timing of exposure, as well as the health risks, conditions, and necessary care.
• Second, the district court failed to require Plaintiffs to specifically describe the science-panel or medical-monitoring injunctive relief sought.
• Third, the district court decided to forego an assessment of the preclusive effect of a non-opt-out class on the possible damages claims of absent class members, which deepens an existing split within district courts in the Sixth Circuit.

In stressing the need for immediate interlocutory relief, Defendants point to the potential costs of the litigation continuing in the district court post-class-certification:

• The certified class includes potentially every resident of Ohio and any person who passed through Ohio and experienced a PFAS exposure in the state, which could include tens of millions of individuals. The injunctive relief sought includes the costs of identifying these potential class members and undertaking medical monitoring for those individuals, which petitioners allege could require billions of dollars to implement.
• Petitioners also stress that the injunctive relief sought, as presently articulated, would be staggering as it would require studies of any PFAS chemical (there are thousands) from a wide variety of sources. Petitioners point out that the negotiated costs of the C-8 Science Panel’s work—which covered just one type of PFAS chemical (PFOA) from just one source—resulted in tens of millions of dollars in costs.

We’ll be certain to watch for any filing from respondents or notable amici, and of course update our readers on any decision from the Sixth Circuit. As we mentioned before, this will be an important case to watch. If the ruling stands—in whole or even in part—it could snowball to other state-wide or territory-wide classes.