The United States Court of Appeals for the Sixth Circuit vacated a district court’s order certifying a class of 11.8 million people whose blood is allegedly contaminated with PFAS/PFOA and directed the lower court to dismiss the suit for lack of standing. The class purported to represent every person residing in Ohio, and the plaintiff had originally pursued a class purportedly representing every person residing in the United States. The decision is ammunition for companies defending lawsuits founded on overly broad, vague, and speculative allegations of product identification and causation. It shows that federal courts may require specific and non-speculative pleading on these issues even in the class context.

Background

In 2018, the plaintiff sued 10 defendants alleging he was exposed to polyfluoroalkyl substances (PFAS), including perfluorooctanoic acid (PFOA), while using firefighting foam as a firefighter. PFAS, which encompass thousands of different compounds, are stable and can remain in the environment for long periods, leading them to be pejoratively labeled “forever chemicals.” Plaintiff had not been diagnosed with any illness he attributed to PFAS/PFOA, but claimed he was at increased risk as a result of this exposure. A test allegedly determined five specific PFAS were present in his bloodstream. Plaintiff moved to certify a class containing every person “residing within the United States at the time of class certification for one year or more since 1988 with 0.05 parts per trillion (ppt) or more of PFOA and at least 0.05 ppt or more of any other PFAS in their blood serum.” It was not disputed that essentially all persons residing in the United States have this trace amount of PFAS in their blood and therefore qualified.

While the district court refused to go as far as plaintiff asked, it granted the motion in part and certified pursuant to Rule 23(b)(2) a class containing every person “subject to the laws of Ohio” who has “0.05 parts per trillion (ppt) of PFOA (C-8) and at least 0.05 ppt of any other PFAS in their blood serum.” Essentially every person residing in Ohio qualified.

The Sixth Circuit’s Decision

While the breadth of the certified class is particularly notable, the Sixth Circuit focused on the threshold question of standing, in particular, the requirement that plaintiff has suffered an injury “traceable” to the defendants before the court. Plaintiff was required to plead this element to the degree required by Rule 8(a)(2), “enough to raise a right to relief above the speculative level.” Here, plaintiff therefore had to allege facts plausibly supporting an inference that each of the 10 defendants likely caused at least one of the specific PFAS compounds to be in his blood.

The court held plaintiff failed to do so. Plaintiff repeatedly referred to defendants collectively, instead of pleading what specific defendant’s conduct allegedly was. In other words, plaintiff failed to trace his injury to each defendant. Furthermore, plaintiff’s allegations were too conclusory to satisfy traceability. While plaintiff concededly had five specific compounds in his blood, he alleged only that these defendants manufactured and distributed “PFAS,” a term encompassing thousands of compounds. Therefore, plaintiff failed to allege facts supporting a plausible inference that the ten defendants before the court caused these PFAS compounds to be in his blood. The court described this as a textbook example of the “the-defendant-unlawfully-harmed-me” approach that the United States Supreme Court has rejected.

Conclusion

The ubiquity of PFAS has resulted in widespread litigation, some overly ambitious in scope and lacking firm grounding. However, federal courts may require, as a matter of standing and satisfaction of Rule 8, specific and non-speculative pleading, even in the class context. The Sixth Circuit’s decision is ammunition for companies defending these lawsuits, and other lawsuits founded on overly broad, vague, and speculative allegations of product identification and causation. Defendants seeking to prevent meritless lawsuits from escalating into discovery fishing expeditions should use the Sixth Circuit’s decision as leverage.