“Seldom is so ambitious a case filed on so slight a basis.”
That was the first sentence of Judge Raymond Kethledge’s opinion vacating a district court order that certified a class of over 11 million Ohio residents who alleged various companies put their health at risk by manufacturing and selling products containing PFAS. The panel of three judges on the U.S. Court of Appeals for the Sixth Circuit— Kethledge, Thapar, and Mathis — instructed the district court to dismiss this much-talked-about case for lack of jurisdiction.
As described in multiple ELM blog posts, Kevin Hardwick, a firefighter and alleged user of PFAS-containing firefighting foams, filed a class action lawsuit in the U.S. District Court for the Southern District of Ohio in 2018, asserting claims for negligence, battery, declaratory judgment, and conspiracy — all related to the manufacture and use of PFAS products. Notably, the suit asked for equitable relief in the form of a panel of scientists to study the effects of PFAS and for medical monitoring of a nationwide class of people that would include anyone that has a detectable level of PFAS in their blood serum.
Specifically, plaintiff sought “the establishment of an independent panel of scientists, including but not limited to epidemiologists, toxicologists, medical doctors, and/or exposure-risk assessors, to be jointly selected by the parties (the PFAS Science Panel) and tasked with independently studying, evaluating, reviewing, identifying, publishing, and notifying/informing the Class of Sufficient Results.”
The defendants’ motions to dismiss were denied.
Hardwick then filed a motion for class certification, seeking to have an expansive nationwide class certified as follows: “[A]ny individual residing within the United States at the time of class certification for one year or more since 1977 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.”
On March 7, 2022, the District Court for the Southern District of Ohio granted in part, and denied in part, that motion. Although the district court rejected a nationwide class, it certified a narrower, yet still significant class: “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 Sixth Circuit has now rejected that class.
Judge Kethledge, writing for the panel of three judges, summarized Hardwick’s complaint as follows: “The gravamen of Kevin Hardwick’s complaint is that his bloodstream contains trace quantities of five chemicals—which are themselves part of a family of thousands of chemicals whose usage is nearly ubiquitous in modern life.” In describing the uncertainty in Mr. Hardwick’s claims, Judge Kethledge wrote that Mr. Hardwick “does not know what companies manufactured the particular chemicals in his bloodstream; nor does he know, or indeed have much idea, whether those chemicals might someday make him sick; nor, as a result of those chemicals, does he have any sickness or symptoms now.” Judge Kethledge also noted that plaintiff did “not know whether those particular PFAS [found in his blood] were present in the [firefighting] foams he used.”
Given the many unknowns in the case, Judge Kethledge scolded plaintiff for selecting defendants with little supporting evidence: “Yet, of the thousands of companies that have manufactured chemicals of this general type over the past half-century, Hardwick has chosen to sue the ten defendants present here. His allegations regarding those defendants are both collective—rarely does he allege an action by a specific defendant—and conclusory.”
In discussing the threshold jurisdictional question controlling whether plaintiff could proceed with his claims against those named defendants, the court explained the familiar elements of standing: “Plaintiffs must have suffered an injury. They must trace this injury to the defendant. And they must show that a court can redress it.” The court here though honed in on the “traceability” element, which requires a showing that the plaintiff’s “injury was likely caused by the defendant”—or in this case, “by each of the ten defendants.” Given that Hardwick’s alleged injury is 5 particular PFAS in his blood, the court stated that he must show that he has “alleged facts plausibly supporting an inference that each defendant ‘likely caused’ at least one of those PFAS compounds to end up in his blood.” The panel gave two reasons why Hardwick failed to carry this burden.
First, the court noted that Hardwick was required to tie his injury “to each defendant” — that it is impermissible to lump defendants together into general allegations by referring to all defendants collectively as “Defendants” — the error made by the district court. Judge Kethledge wrote that “Hardwick has not even tried to make that more specific showing in this case.”
Second, the panel opined that Hardwick’s allegations are “conclusory,” meaning that they are even insufficient for the pleading stage of the case. The court focused on two facts in the record: (a) that there are between 5,000 and 10,000 different PFAS compounds and (b) that Hardwick alleged only having five of them in his blood.
“To allege simply that these defendants manufactured or otherwise distributed ‘PFAS,’ therefore, is patently insufficient to support a plausible inference that any of them bear responsibility for the particular PFAS in Hardwick’s blood.” The court explained that there were no allegations in the complaint about the five particular PFAS found his Hardwick’s blood being manufactured by any of the named defendants, or any “plausible pathway by which any of these defendants could have delivered any of these five PFAS to his bloodstream.” Given these two reasons, the Sixth Circuit panel found that Hardwick lacked standing to proceed with his claims.
We’ll continue to monitor this case to see if the plaintiff explores revisiting this issue with the appeals court and/or the U.S. Supreme Court.