6th Circuit rejects huge class action filed against makers of ‘forever chemicals’

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6th Circuit rejects huge class action filed…

Environmental Law 6th Circuit rejects huge class action filed against makers of ‘forever chemicals’

By Debra Cassens Weiss

November 28, 2023, 2:27 pm CST

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Reuters has called a decision by the 6th U.S. Circuit Court of Appeals at Cincinnati refusing to certify a class action lawsuit comprising about 11.8 million Ohio resident “a big win” for defendants such as 3M, a multinational conglomerate corporation. Image from Shutterstock.

A federal appeals court based in Cincinnati has refused to certify a class action lawsuit comprising about 11.8 million Ohio residents suing manufacturers of “forever chemicals” said to contaminate the environment.

The 6th U.S. Circuit Court of Appeals at Cincinnati ruled Monday that the lead plaintiff, Ohio firefighter Kevin Hardwick, didn’t have standing to sue 10 companies over the chemicals found in his bloodstream. The court remanded with instructions to toss the suit.

Reuters, Law360 and Bloomberg Law have coverage.

Hardwick chose to sue 10 companies out of thousands that made chemicals like the polyfluoroalkyl substances, or PFAs, in the last half-century. He didn’t show which defendants contributed to the five chemicals found in his blood, and he doesn’t know whether those chemicals might someday make him sick, the appeals court said.

Standing requires a showing that specific defendants likely caused Hardwick’s injury. But Hardwick focused on the collective actions of the defendants, alleging that they made PFAs in a way that would contaminate class members’ blood.

“Seldom is so ambitious a case filed on so slight a basis,” Judge Raymond Kethledge wrote for the 6th Circuit panel. Kethledge was said to be on a short list of judges former President Donald Trump was considering for a U.S. Supreme Court nomination.

Hardwick had used firefighting foam that contained PFAs. The chemical is also used in nonstick cookware, waterproof clothing, medical devices, construction materials and many other applications.

Trace amounts of PFAs are present in the blood of everyone living in the United States, the 6th Circuit said.

Hardwick wanted a court to appoint a science panel that would reach conclusions that are definitive and binding on the parties. He initially sought a class action representing nearly every person in the United States, but the district court had narrowed the class to Ohio residents.

Hardwick also sought medical monitoring of at-risk class members, according to Bloomberg Law.

Reuters called the decision “a big win” for defendants such as 3M, a multinational conglomerate corporation, and E.I. du Pont de Nemours & Co., which would have been pressured to settle if the suit proceeded.

The case is Hardwick v. 3M Company.

See also:

“3M faces trial over ‘forever chemicals’ in firefighting foam in ‘bet-the-company’ litigation”

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