You read that correctly: A PFAS plaintiff in a case pending in Ohio federal court recently asserted “one of the largest class actions in history,” according to the Sixth Circuit Court of Appeals, which is currently considering an appeal filed in In re E.I. DuPont de Nemours & Co. C-8 Pers. Inj. Litig.1 Per- and polyfluoraylkyl substances (PFAS), nicknamed “forever chemicals” because they do not break down in the environment, are a diverse group of many man-made chemicals that have been used in commercial products and industrial processes worldwide since the 1940s. PFAS have become front-page news for some time now, but the intended scope of this case and the corresponding relief sought by the plaintiff are extraordinary.
Plaintiff Kevin Hardwick brought a personal injury class action against a group of manufacturers and distributors of certain types of PFAS containing eight carbon atoms (including perfluorooctanoic acid or “PFOA” and ammonium perfluorooctanoate) alleging that he has PFAS in his blood. Plaintiff concedes that “he has ‘no idea’ which Defendant (if any) exposed him to PFAS.”2 He also “claims no health condition as a result of his exposure,” but instead, asserts that he faces a “risk of developing various diseases.”3 Among the relief sought by the plaintiff is that the defendants be ordered to fund a science panel to study the exposure of PFAS and its health implications.4
Size of Plaintiff’s Proposed Class – All Americans?
What’s most notable about this case, however, is the size of the proposed class. Plaintiff lives in Ohio, but initially sought to include “nearly every American” in a proposed nationwide class because, according to him, PFAS has contaminated the blood of almost all Americans and allegedly causes harm to humans at any dose, which creates sufficient cohesion within the class.5 The district court refused to certify a nationwide class because it lacked commonality, and also reasoned that some states do not recognize allegations of an increased risk of disease as a compensable injury for negligence or medical monitoring claims.6
Though it rejected the proposed nationwide class, the district court nonetheless certified a class of “nearly all 11.8 million residents of Ohio, along with anyone else otherwise subject to its laws.”7 Faced with a class of still-staggering size, the defendants successfully moved for an interlocutory appeal of the class certification decision to the Sixth Circuit. In granting the petition for interlocutory review, the Sixth Circuit recognized even the smaller, statewide class as “one of the largest class actions in history.”8 The Court criticized the district court for refusing “to apply a cohesion requirement endorsed by seven courts of appeals.”9 Beyond the class itself, the Sixth Circuit expressed serious doubts about the threat of “massive liability” for an “ill-defined” medical monitoring remedy for the entire state of Ohio.10
Although the parties are still in the process of filing appellate briefs, from the sounds of it, the Ohio district court’s class certification order may have an uphill climb to survive appellate review. This case, however, is one to watch, as it bears broader significance as a harbinger of what’s to come in PFAS litigation. This case demonstrates that the ubiquitous nature of PFAS – both in the number of chemicals and their applications – may present fertile ground for ambitious, aggressive, and novel tactics in PFAS litigation, even for plaintiffs who do not allege any currently existing health condition resulting from alleged PFAS exposure.
1 2022 WL 4149090, at *10 (6th Cir. Sept. 9, 2022).
2 Id. at *2.
5 Hardwick v. 3M Co., 589 F. Supp. 3d 832, 841 (S.D. Ohio 2022).
6 Id. at 860-61.
7 2022 WL 4149090, at *1.
8 Id. at *10.