United States: Unable To Individually Trace PFAS To Manufacturers, Sixth Circuit Dismisses PFAS Class Action

"Seldom is so ambitious a case filed on so slight a basis."¹ This is not the accolade any plaintiff wants to receive, and especially not on behalf of 11.8 million class members. But on November 27, the Sixth Circuit Court of Appeals held that a proposed class lacked standing to proceed with PFAS claims,² denied of "one of the largest class actions in history," and even worse, ordered dismissal of the case entirely.³

PFAS Plaintiff Asserts Nationwide Class

Plaintiff Kevin Hardwick sued a group of 10 manufacturers and distributors of specialty chemicals. Per- and polyfluoraylkyl substances (PFAS), nicknamed "forever chemicals" because they do not break down in the environment and comprise a diverse group of many man-made chemicals that have been used in commercial products and industrial processes worldwide since the 1940s. Hardwick's personal-injury class action alleged that he had trace levels of five separate PFAS compounds in his blood even though he did not know which of the many defendant companies contributed the chemicals to his bloodstream.⁴ Notably, the chemicals did not make Hardwick sick either, and he did not know whether they would ever make him sick.⁵

Hardwick's proposed class is perhaps the most notable aspect of his case. Initially, Hardwick sought to include "nearly every American" in a proposed nationwide class because, according to him, PFAS has contaminated the blood of almost all Americans and allegedly pose harm to humans at any dose. He argued this created sufficient cohesion among the members to form a class. Although the Ohio federal district court rejected his proposed nationwide class, it nonetheless certified a class of "nearly all 11.8 million residents of Ohio, along with anyone else otherwise subject to its laws."⁶

Sixth Circuit Reverses Class Certification and Dismisses Case

The Sixth Circuit struck down this class certification order on November 27, and instructed the district court to dismiss the case.⁷ The Sixth Circuit focused on standing—a prerequisite to a federal court's jurisdiction. To pursue a case in federal court, the doctrine of standing requires a plaintiff to show three things: (1) the plaintiff suffered an injury; (2) that injury can be traced to the defendant; and (3) a court can redress the injury.⁸ Without standing, a federal court lacks power to adjudicate a plaintiff's claim.

The Sixth Circuit held that Hardwick failed to show the second element of standing: traceability.⁹ The court explained that traceability "requires a showing that the plaintiff's 'injury was likely caused by the defendant'—or in this case, by each of the ten defendants."¹⁰ Hardwick failed to make this showing, for two reasons.

First, Hardwick treated the ten defendants in the case "as a collective," referring only to their actions as a group.¹¹ But a plaintiff must trace his injury to each defendant individually.¹² Hardwick did not make this defendant-specific showing.

Second, Hardwick's allegations were "conclusory," and therefore, not sufficient to show traceability.¹³ The case was still in the early stages of litigation (the parties filed "pleadings," which mean the documents Hardwick filed to initiate the lawsuit and the defendants' papers filed to respond to the allegations), but that the parties had yet to engage in "discovery." This means Hardwick did not yet have information produced by the defendants available to prove traceability. But the Sixth Circuit held that even at the pleadings stage, a plaintiff must do more than make a conclusory "'the-defendant-unlawfully-harmed-me-accusation.'"¹⁴ Hardwick failed to allege facts "supporting a plausible inference that any of these defendants caused these five particular PFAS to end up in his blood."¹⁵ Unable to meet this burden, Hardwick lacked standing to sue the manufacturer and distributor defendants. The Sixth Circuit accordingly vacated the district court's class certification order and remanded the case for the district court to dismiss entirely.¹⁶

Looking Ahead

The Sixth Circuit's standing analysis suggests that courts will only go so far in entertaining novel theories of recovery in PFAS cases. Absent significant evidentiary development up front, PFAS plaintiffs may struggle to trace an injury to a particular defendant in order to make legally sufficient allegations of traceability. This decision could pose a material barrier to PFAS plaintiffs' ability to pursue litigation at the outset, particularly if other circuits adopt a similar approach.

Footnotes

1. In re C-8 Pers. Inj. Litig., 2023 WL 8183812, at *1 (6th Cir. Nov. 27, 2023) (emphasis added).

2. Id. at *4.

3. See In re C-8 Pers. Inj. Litig., 2022 WL 4149090, at *10 (6th Cir. Sept. 9, 2022).

4. Id.

5. Id.

6. Id.

7. In re C-8 Pers. Inj. Litig., 2023 WL 8183812, at *4 (6th Cir. Nov. 27, 2023).

8. Id. at *2.

9. Id. at *3.

10. Id.

11. Id.

12. Id.

13. Id.

14. Id. (quoting Ashcroft v. Iqbal, 556 U.S 662, 678 (2009)).

15. In re C-8 Pers. Inj. Litig., 2023 WL 8183812, at *3 (6th Cir. Nov. 27, 2023).

16. Id. at *4.

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