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Sixth Circuit Dismisses Monumental PFAS Class Action

Morgan Harrison and David Marmins


  • This article continues a series of ABA Litigation Section literature on litigation related to the manufacture and use of the family of chemicals called PFAS, which is short for per- and polyfluoroalkyl substances.
  • “For most if not nearly all Americans, interaction with materials containing PFAS is a fact of daily life. PFAS entered mass production in the 1950s and have been used ever since in innumerable applications, including medical devices, automotive interiors, waterproof clothing and outdoor gear, food packaging, firefighting foam, non-stick cookware, ski and car waxes, batteries, semiconductors, aviation and aerospace construction, paints and varnishes, and building materials.” In re E. I. du Pont de Nemours & Co. C-8 Pers. Inj. Litig., 87 F.4th 315, 318 (6th Cir. 2023).
Sixth Circuit Dismisses Monumental PFAS Class Action
Phototreat via iStock

In an order that is sure to have far-reaching implications for years to come, the United States Court of Appeals for the Sixth Circuit recently directed the dismissal of a class action lawsuit brought by Kevin Hardwick, a former firefighter who sought to represent a class comprising nearly every person residing in the United States against ten manufacturers of per- and polyfluoroalkyl substances (PFAS), including 3M and DuPont. Among other things, Hardwick requested that the district court appoint a “Science Panel” to investigate the potential health impacts of various PFAS, whose conclusions would “be deemed definitive and binding on all the parties.”

The District Court for the Southern District of Ohio ultimately certified a class comprising every person residing in the State of Ohio, which defendants appealed on the basis that, among other things, Hardwick lacked standing to bring the case. The Sixth Circuit agreed, noting that based on the pleadings alone, combined with certain undisputed facts, Hardwick could not show the existence of his own “case or controversy” under Article III as to every defendant.

After listing the cardinal elements of standing, the court explained that to survive the defendants’ challenge, Hardwick must allege that he suffered a redressable injury that is traceable to the defendant(s). Hardwick’s complaint, however, failed to establish standing for several reasons, not the least of which was that “[t]he subject of nearly every verb in the ‘General Factual Allegations’ section of Hardwick’s First Amended Complaint is ‘Defendants.’” In re E. I. du Pont de Nemours & Co. C-8 Pers. Inj. Litig., 87 F.4th 315, 320 (6th Cir. 2023).

The court stressed that even at the initial pleading stage, a plaintiff cannot lump defendants together and only make general allegations without specifying what each defendant did to harm the plaintiff. “[T]he Supreme Court has long made clear that ‘standing is not dispensed in gross.’” “For even a plaintiff ‘who meets the ‘actual-injury requirement’—a point sharply contested here—‘does not thereby obtain a license to sue anyone over anything.’”.

The court also held that Hardwick’s claims were too conclusory to survive to discovery. Indeed, in his complaint, Hardwick did not tie the PFAS compounds in his blood to any particular manufacturer or other source. “Nor did he allege any plausible pathway by which any of these defendants could have delivered any of these five PFAS to his bloodstream . . . . 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.”

Hardwick provides a succinct and direct appellate opinion on which defendants in PFAS litigation will rely across the country for years to come. Plaintiffs should take note of the powerful language in the Hardwick order. Many forthcoming briefs from defendants are sure to invoke the first line of the court’s order: “Seldom is so ambitious a case filed on so slight a basis.”

Hardwick, though, is unlikely to stem the present tide of PFAS lawsuits The U.S. Environmental Protection Agency is proposing a National Primary Drinking Water Regulation to establish legally enforceable levels, or Maximum Contaminant Levels (MCLs), for six PFAS in drinking water. For the two original PFAS, PFOA and PFOS, the MCL would be 4 ppt, a level most drinking water providers cannot meet without significant upgrades to their filtration systems. These regulations could become law any day, and when they do it will embolden plaintiffs PFAS lawyers and increase the already steady stream of PFAS suits. Also, studies attempting to trace PFAS to health problems continue and, if findings are as most suspect—that these persistent chemicals are linked to illness or disease—an entire new era of PFAS suits is sure to follow.