This article was originally published by ACOEL on December 12.

“Seldom is so ambitious a case filed on so slight a basis.”  Those are words a plaintiff’s lawyer would hate to hear, but that is exactly how the Sixth Circuit Court of Appeals began its opinion rejecting an Ohio firefighter’s attempt to certify a nationwide class of individuals with elevated PFAS in their blood serum.  The parties apparently agreed that at the PFAS blood serum levels proposed, the class would include just about everyone in the United States.

Plaintiff Kevin Hardwick first brought his complaint in the Southern District of Ohio in 2018 against 10 defendants who made PFAS.  (The Court noted early on that “of the thousands of companies that have manufactured chemicals of this general type over the past half century, Hardwick has chosen to sue the ten defendants here.”)  Hardwick asked the court to certify a nationwide class and establish a “science panel” to study the potential causal connection between PFAS exposure and “any injury, human disease, adverse human health impact, and/or a risk sufficient to warrant any personal injury compensation or future diagnostic medical testing, including medical monitoring.”  Hardwick is represented by the same law firm that represented the plaintiffs in the class action for alleged PFAS exposure from DuPont’s Parkersburg, West Virginia facility.  Resolution of that case included the creation of the C8 Science Panel, a group of three scientists who conducted a nearly 10-year epidemiologic study of the health of people allegedly exposed to PFAS surrounding the plant.  Presumably Hardwick is seeking to repeat this on a national level, with the findings of the science panel binding on all the parties.

In March 2022 the Southern District of Ohio certified a class of Ohio residents with PFAS in their blood serum above certain levels – a class which would have included about 11.8 million people.  The defendants petitioned for interlocutory review which the Sixth Circuit granted in September 2022.  The Sixth Circuit issued its 7-page decision on November 27, 2023, vacating the certification order and remanding with instructions to dismiss the case for lack of jurisdiction.

The decision was based on plaintiff’s failure, even at the pleading level, to satisfy the requirements for standing.  More specifically, the Court chose “to begin and end … with the element of traceability.”  The Court found that plaintiff made conclusory allegations as to all ten defendants collectively, with no specificity about how the plaintiff’s injury (here, the presence of PFAS in his blood serum) is traceable to any individual defendant.  The Court also pointed out the plaintiff’s failure to allege that any of the defendants manufactured the 5 PFAS compounds found in his blood, “nor did he allege any plausible pathway by which any of these defendants could have delivered any of these 5 PFAS to his bloodstream.”  The Court therefore concluded that Hardwick “elides rather than meets the Supreme Court’s requirements as to pleadings and traceability.  Hardwick therefore lacks standing to proceed with his claims.”

The Court also noted that the actual injury requirement for standing was also sharply contested.  While this issue was not specifically addressed by the Sixth Circuit, the actual injury requirement is being hotly contested in PFAS litigation around the country, especially in cases where plaintiffs are seeking medical monitoring classes.  For example, earlier this year the New Hampshire Supreme Court held that “increased risk of harm is not an injury for purposes of a negligence action” absent a present physical injury.  But across the Connecticut River in Vermont, plaintiffs can seek medical monitoring under certain circumstances absent a present injury.  And the Second Circuit, in the Hoosick Falls PFAS litigation, held that a present physical injury is required, but that it is sufficient to allege that there is a “clinically demonstrable presence of toxins” in the body or “some physical manifestation of toxin contamination.”  In that case, plaintiffs could demonstrate that they had PFAS in blood serum above the national averages.

For now, there will be no certified nationwide class of PFAS claimants.  And it is still too soon to tell whether PFAS will be the next asbestos.  But PFAS litigation is not going away any time soon.