As previously reported by our blog, Kevin Hardwick, a firefighter and alleged user of PFAS-containing firefighting foams, filed a class action lawsuit in the U.S. District Court for the Southern District of Ohio in 2018, asserting claims for negligence, battery, declaratory judgment, and conspiracy—all related to the manufacture and use of PFAS products. What is notable about the suit was that it asked for equitable relief in the form of a panel of scientists to study the effects of PFAS and for medical monitoring of a nationwide class of people that would include anyone that has a detectable level of PFAS in their blood serum.
The injunctive relief specifically sought was “the establishment of an independent panel of scientists, including but not limited to epidemiologists, toxicologists, medical doctors, and/or exposure-risk assessors, to be jointly selected by the parties (the PFAS Science Panel) and tasked with independently studying, evaluating, reviewing, identifying, publishing, and notifying/informing the Class of Sufficient Results.” In essence, plaintiff asked for a “panel of scientists to study the harmful effects that PFAS has in his body and medical monitoring for those individuals who have an increased risk of disease as part of that relief.” As our blog previously reported, the defendants’ motions to dismiss were denied.
The plaintiff filed a motion for class certification, seeking to have an expansive nationwide class certified as follows: “[A]ny individual residing within the United States at the time of class certification for one year or more since 1977 with 0.05 parts per trillion (ppt) or more of PFOA and at least 0.05 ppt or more of any other PFAS in their blood serum.”
The defendants contended, among other arguments, that the plaintiff offered no method to measure the health effects of the PFAS in his blood and body, concluding that even if “some real-world dose of some PFAS could have health effects” on individuals, “the age, gender, weight, genetic predispositions, medical history, lifestyle, and existing health issues would have a big impact in determining whether any particular class member might face increased health risks.” The defendants also disagreed that PFAS is harmful.
The plaintiff responded that “dose” is irrelevant “because PFOA and PFAS harm humans at any level…” The plaintiff maintained that the class be defined in a way that requires each member to have above a specific amount of PFOA and PFAS in his or her blood, thus arguing that the individual attributes of a class member would be irrelevant: “No matter where someone lives, what they do, or the choices they have made, the defendants’ PFAS have contaminated the blood of all the proposed class members…,” causing them to “all face the same persistent, continuing, and accumulating contamination of their blood and bodies with the defendants’ chemicals—and the associated risks and threats of developing various diseases…”
On March 7, 2022, the District Court for the Southern District of Ohio granted in part, and denied in part, the plaintiff’s motion for class certification. Specifically, rejecting a nationwide class, the court certified the following: “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.”
The court indicated that it will permit defendants the opportunity to further narrow the requested class to those individuals injured in states that recognize the claims for relief. We’ll continue to follow this important PFAS case.