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As predicted back in March 2022, class litigation related to per- and polyfluoroalkyl substances (PFAS) has accelerated over the past year. PFAS are a group of man-made chemicals that have been widely used in various industrial and consumer products. Companies that have manufactured, used or disposed of PFAS are facing an increasingly volatile legal landscape given the prevalence of PFAS in the environment and the growing challenges to their safety.

In Kevin D. Hardwick v. 3M Company et al, for example, the plaintiff seeks to compel 10 defendant companies to fund a court-supervised “science panel” to study the effects of PFAS on health and potentially to fund “medical monitoring” for himself and substantially the entire population of the United States. The United States District Court for the Southern District of Ohio certified a Rule 23(b)(2) class of Ohio residents and other individuals “subject to” Ohio law, and estimated to include approximately 8 million people. The court also indicated in its certification order that it intends to expand the class to include residents of other states that would recognize a legal injury under the facts alleged in the case. The Sixth Circuit granted interlocutory review of the certification order. 

In their petition for leave and initial appeal brief, the defendants-appellants challenge the district court’s rulings on numerous grounds. Among their principal arguments are that the named plaintiff lacks Article III standing because he is suing to fund scientific research that may shed light on whether he has suffered any injury as a result of PFAS exposure, that the district court erred in failing to apply a rigorous cohesiveness requirement under Rule 23(b)(2), and that the plaintiff failed to provide any specifics of the proposed injunction.

On Dec. 21, 2022, a team of BakerHostetler attorneys including Brian Troyer, Kyle Cutts, Bethany Lukitsch, Matthew Thurlow, Kamy Ahmadian and Lindsey Simmons filed an amicus brief on behalf of the Ohio Chamber of Commerce and in support of the defendants-appellants. In the brief, the BakerHostetler team argues that the certification order violates principles of separation of powers and federalism; offers additional perspectives on the issues of standing under Ohio law, cohesiveness and commonality; and outlines for the Sixth Circuit how the district court’s expansive certification order would harm Ohio’s business environment and economy.

We will continue to monitor this case as well as other PFAS-related cases as they continue to unfold and work their way through the state and federal court systems in 2023.