Sixth Circuit Decision Reinforces That Standing & Traceability Key In PFAS Class Actions

• Published date: 19 January 2024
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Personal Injury
• Law Firm: Maron Marvel Bradley Anderson & Tardy
• Author: Robert W. Petti, Audra J. Inglis and Donald R. Kinsley

The recent decision by the Sixth Circuit in Hardwick and a review of the law from various jurisdictions supports the challenges that Plaintiffs face in proving standing for class certification in PFAS lawsuits. Late in 2023, the U.S. Court of Appeals for the Sixth Circuit struck down class certification for plaintiffs alleging injuries from exposure to per- and polyfluroaylkyl substances (PFAS), known as "forever chemicals." In Re: E.I. Du Pont de Nemours and Co. C-8 Pers. Inj. Litig., (Hardwick v. 3M Co.), 87 F.4th 315 (6th Cir. 2023).

In Hardwick, the Sixth Circuit addressed an effort by a career firefighter to certify a statewide class action for exposure to PFAS in firefighting foam. At the district court level, suit was filed against 10 alleged PFAS manufacturers following blood tests that showed the named plaintiff had traces of five PFAS compounds in his blood. The district court was asked to certify a nationwide class consisting of every person residing in the United States for one year or more since 1977 with 0.05 ppt or more of PFOA and PFAS in their blood. However, the district court only certified a statewide class of 11.8 million persons subject to Ohio laws.

On appeal, the Sixth Circuit vacated the district court's class certification and remanded the case with instructions to dismiss the case for lack of jurisdiction linked here. The court held that the plaintiff lacked standing due to the absence of particular allegations that each individual defendant manufactured or provided a traceable pathway for exposure to any of the specific PFAS compounds detected in his system. The court was not impressed by plaintiff's pleading against the defendants as a collective, and asserting only conclusory allegations that failed to identify which companies manufactured the PFAS compounds to which he was allegedly exposed.

The court's standing examination considered the elements: 1) had plaintiff suffered an actual injury; 2) traceable to a defendant; and 3) that a court may redress. The court's review focused on traceability, an element that requires plaintiff's allegations to demonstrate facts "plausibly supporting an inference that each defendant 'likely caused' at least one of those PFAS compounds to end up in his blood." The court rejected the plaintiff's collective allegations against all defendants, stating the plaintiff "must tie his injury to each defendant." Essentially, the court stated that a plaintiff may not sue multiple defendants by making...