Sixth Circuit validates challenge to PFAS class – demands greater specificity in pleading standards for causation

District Court certifies statewide class

A career firefighter filed suit against 10 alleged per- and polyfluoroalkyl substances (PFAS) manufacturers in the US District Court for the Southern District of Ohio. He had allegedly been exposed to firefighting foam containing PFAS and his blood tests detected five PFAS compounds, despite the fact that he was not sick or symptomatic. He asked the district court to 1) certify a nationwide class (without an opt-out) made up of every person residing in the US for one year or more since 1977 with 0.05 parts per trillion (ppt) or more of perfluorooctanoic acid (PFOA) and PFAS in their blood serum, and 2) appoint a science panel whose conclusions would be definitive and binding on the parties. Certain experts highlighted that these ppt thresholds were below amounts currently detectable, but the parties agreed these amounts are likely present in most Americans. The district court certified a statewide class of 11.8 million persons subject to the laws of Ohio. Hardwick v. 3M Co., 589 F. Supp. 3d 832 (S.D. Ohio March 7, 2022). The defendants appealed on multiple grounds, including standing.

Appellate Court vacates class certification, orders dismissal

On November 27, in a strongly-worded order, the Sixth Circuit vacated the district court’s class certification and remanded with instructions to dismiss for lack of jurisdiction. Hardwick v. 3M Co. (In re E.I. du Pont de Nemours), 2023 US App. LEXIS 31297 (6th Cir. Nov. 27, 2023) (linked here). The Sixth Circuit stated that “[s]eldom is so ambitious a case filed on so slight a basis,” acknowledging that PFAS exposure is a “fact of daily life” for Americans, involving thousands of compounds manufactured by thousands of companies over the last 50-plus years, with human body concentration reductions varying from days to years depending on the compound type.

Holding: The Sixth Circuit held that the plaintiff lacked standing due to the absence of particular allegations about how each defendant manufactured or provided a plausible pathway that likely delivered to the plaintiff’s body any one of the five detected PFAS compounds. The court found that the plaintiff pled only collective and conclusory allegations against all defendants for the trace quantities of only five PFAS compounds, while not knowing which companies manufactured those five PFAS compounds, not having any current sickness or symptoms, and not knowing whether PFAS exposure may someday make him sick.

Analysis: The standing inquiry examined whether the plaintiff 1) suffered an actual injury, 2) traceable to a defendant, 3) that a court may redress. The court articulated that every standing element must be “particularized,” reviewing whether a particular plaintiff is entitled to an adjudication of particular claims asserted against a particular defendant. In doing so, the alleged facts must rise above speculation and support an inference that the defendant’s liability is plausible rather than just possible.

The Sixth Circuit focused on traceability, requiring the plaintiff to allege “facts plausibly supporting an inference that each defendant ‘likely caused’ at least one of those PFAS compounds to end up in his blood.” The court found that the plaintiff failed here on two grounds. First, the court rejected collective allegations against all defendants, as the plaintiff “must tie his injury to each defendant” (i.e., go beyond “Defendants” manufactured, released, made repeated assurances about, encouraged use of PFAS, etc.). A plaintiff may not sue multiple defendants by lumping them together in general allegations when more particular facts would allow a plaintiff to proceed only against some defendants.

Second, the court rejected the conclusory “the-defendant-unlawfully-harmed-me accusation,” noting the plaintiff failed to allege that any defendant manufactured any of the five PFAS compounds, or allege any plausible pathway by which any defendant could have delivered PFAS compounds to the plaintiff’s bloodstream. The court found the allegations that defendants manufactured or distributed PFAS “patently insufficient to support a plausible inference that any [defendant should] bear responsibility for the particular PFAS in [the plaintiff’s] blood.” Future developments in this case will be closely monitored.

Takeaway

Companies with PFAS exposure will want to do the work necessary to identify the critical data points that will allow them to take advantage of the holding in Hardwick and to pursue early litigation dismissal efforts—i.e., be ready to identify how the specific PFAS compound is not at issue or otherwise could not be connected to a plaintiff. This may include a close study of the history of their products and services and identifying the specific PFAS compounds and their limited market reach. For some companies, this may take time and require expert engagements but the investment would pay dividends down the road. Hardwick is instructive for all companies facing PFAS exposure issues and provides strong authority for early challenges to causation.

If you have any questions about this Legal Alert, please feel free to contact any of the attorneys listed or the Eversheds Sutherland attorney with whom you regularly work.