(CN) — Manufacturers of “forever chemicals” faced off with a firefighter at the Sixth Circuit Thursday, seeking to reverse the certification of a class action that could eventually include over 99% of Americans.
Ten companies, including chemical giants 3M Co. and DuPont Co., argued in Ohio Thursday morning that a prospective class of millions exposed to chemicals commonly known as PFAS, or per- and polyfluoroalkyl substances PFAS, and PFOA, or perfluoocatonic acid, would be unhelpful to exposed people and would lack standing.
A federal judge in that state had improperly certified the class, former U.S. Solicitor General Paul Clement said, which includes “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.”
Clement argued that the prospective lead plaintiff, retired firefighter Kenneth Hardwick, had not established that he had been injured by the presence of PFAS in his blood — nor that any of the other 11 million or more Ohioans in that class would be able to do so.
Known as forever chemicals for their persistence in the environment, PFAS have been used in countless consumer products since their invention by 3M in the 1940s. In recent years, they've been found to have accumulated in air, water, soil and human blood, in part because the chemicals’ carbon-fluorine bonds prevent them from easily degrading.
The effects of the chemicals on human health remain unclear, but early studies suggest they may harm the liver and kidneys and suppress immune responses.
Hardwick says his exposure to PFAS through firefighting foam and uniforms has given him and others ample cause for concern about the chemicals’ persistence in their blood.
On behalf of Hardwick, lawyers from the Cincinatti-based Taft Stettinius & Hollister argued in a brief that their client’s exposure to PFAS and PFOA subjected him to potentially “harmful, synergistic interactions” between PFOA and any of the thousands of PFAS manufactured by 3M, DuPont and the other defendants.
“We would argue that he, the class, 99% of Americans, have already been injured,” wrote attorney Aaron Herzig, alluding to Southern District of Ohio U.S. District Judge Edmund Sargus’ indication in his order that the class could be expanded beyond the state’s borders, pending findings on state law regarding Hardwick’s proposed relief outside of Ohio.
Taking up a point raised by Clement, the panel of judges emphasized that concern about future illness was the most concrete injury Hardwick had pleaded.
“How is it certainly impending?” asked Judge Raymond Kethledge, a George W. Bush appointee. “If we’re looking at future risk alone, your own pleadings say you don’t know what the risk is.”
Clement also pointed to issues of traceability. “We have a deposition where Mr. Hardwick has essentially conceded that he doesn’t know which of these defendants was the source of the PFAS,” he said, echoing arguments in 3M's briefing.
Asked by Kethledge whether Hardwick could sue PFAS' inventors, Clement argued that, even if he could, it was unclear whether Hardwick could pick out “who is the inventor of these 5,000 different substances.”
Also at issue was the relief Hardwick had received in Sargus’ order: an injunction ordering the creation of an independent panel of scientists to study the effects of PFAS and PFOA in the bloodstream.
Scientific study, Clement argued, was at best a novel form of injunctive relief and at worst an attempt to shift the costs of research onto PFAS makers without evidence of an injury.
“All of us probably take in gamma rays, all of us take in carbon dioxide,” Clement said. “I don’t know of any common-law battery that everybody in the state could pursue simultaneously.”
An injunction creating an opt-out class of millions entitled to medical testing didn’t sound to him like a popular class to join.
“The relief is supposed to be indivisible,” the attorney said. “You don’t have a situation like this where the science panel is only going to study stuff that most class members don’t care about…. Go to the doctor four extra times a year and get their blood drawn? Thank you, no.”
“At the end of the day, if it’s a shared… exposure that we all have in common, then why do we need an Article III court? That’s a perfect subject for legislative hearings, or the Ohio EPA.”
Even if the scientific work did find harm, Clement argued, that would create grounds for divisions of the class between those who developed illnesses attributable to a buildup of PFAS and those who did not.
Herzig, the plaintiff attorney, said Clement and his clients were seeking to minimize the degree of negligence and harm caused to nearly all Americans. The outcome they were seeking, he argued, would mean that “if enough people manufacture a toxin, and contaminate us without our consent, and hide the fact that they’ve done that from the people and the government, then they can get away with it.”
The three-judge panel of Kethledge, Biden appointee U.S. Circuit Judge Andre Mathis and Trump appointee U.S. Circuit Judge Amul Thapar asked pointed questions of both attorneys but was decidedly more critical of Herzig’s arguments.
“It seems that what this case is about is: The legislature and the executive branch hasn’t given you the relief you sought, and so you’re going to us to remedy that,” Thapar told Herzig.
Kethledge was notably skeptical of whether Hardwick could trace his claimed injuries to any particular company.
“Where in the record supports, plausibly, that… each of [the defendant companies] is responsible for PFAS in your client’s bloodstream?” the judge asked. “You haven’t pointed me to anything in the record.”
“I don’t know yet,” Herzig responded.
“OK,” Kethledge continued. “That seems to be the problem with this case.”
Earlier this year, 3M agreed to pay at least $10.3 billion to settle claims against it for contaminated drinking water supplies. Fellow PFAS manufacturers Chemours, DuPont and Corteva settled similar claims for $1.19 billion.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Infant formula May 15, 2024 -
