In a recent opinion, the United States Court of Appeals for the Sixth Circuit vacated an order certifying a class of essentially all Ohio residents claiming contact with some level of per- and polyfluoroalkyl substances (also known as PFAS) because the named plaintiff lacked standing to pursue his “ambitious” and ill-supported claims. In the process, the Sixth Circuit adopted a position urged by BakerHostetler attorneys on behalf of amicus the Ohio Chamber of Commerce. See Hardwick v. 3M Co., no. 22-3765, --- F.4th ---, 2023 WL 8183812 (6th Cir. Nov. 27, 2023).
In March 2022, the United States District Court for the Southern District of Ohio certified an unprecedented class composed of all Ohio residents whose blood contains at least 0.05 parts per trillion of PFAS—an amount so low it is undetectable with current technology. Given that the plaintiff alleged that at least 99 percent of Americans have come into contact with some level of PFAS—a group of some 5,000 chemicals that have been used in nearly every corner of the national economy—the class as certified embraced essentially all 11 million Ohioans. And although the plaintiff could not explain which companies manufactured each of the 5,000 chemicals, or in what amount people may have come in contact with each chemical, the district court ordered the parties to brief the possibility of expanding this approach and certifying a nationwide class.
The Sixth Circuit granted interlocutory review under Rule 23(f), and on November 27, the Sixth Circuit both reversed the certification order and instructed the district court to dismiss the case altogether for lack of standing.
The first sentence of the opinion epitomizes the court’s narrow yet forceful ruling: “Seldom is so ambitious a case filed on so slight a basis.” Of the 5,000-plus PFAS manufactured over the past seven decades, the plaintiff alleged that only five were in his bloodstream. Yet “nowhere in his complaint” did the plaintiff allege which, if any, of the 10 defendant companies manufactured the five specific compounds he was exposed to. Nor did he “allege any plausible pathway” by which each specific defendant was responsible for introducing any one of the five chemicals into his body. Because the plaintiff failed to trace his alleged injuries to each defendant, the court held that he lacked Article III standing. The court thus did not need to consider the additional arguments presented, including that the plaintiff had not suffered an injury in fact for standing purposes.
Article III standing remains an important tool to resolve otherwise-monumental class litigation in its early stages. We will continue to monitor cases in the PFAS context and elsewhere as companies face new litigation threats into 2024. BakerHostetler attorneys Brian Troyer, Bethany Lukitsch, Matthew Thurlow, Kyle Cutts, Kamran Ahmadian and Lindsey Simmons represented the Ohio Chamber of Commerce before the Sixth Circuit.
[View source.]
