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Limited Legal Impact Predicted From Court’s OK of PFAS Case

Oct. 2, 2019, 9:00 AM

A federal court’s decision to let a potentially sweeping PFAS lawsuit advance is a critical victory for the Ohio ex-firefighter who brought the case, but it’s not expected to open the floodgates for others.

The U.S. District for the Southern District of Ohio on Sept. 30 rejected dismissal requests from 3M Co., DowDuPont, and other manufacturers that wanted to duck the proposed class action filed last year by former firefighter Kevin Hardwick.

The Ohio resident says he spent four decades of his career using firefighting foam that contained per- and polyfluoroalkyl substances, the vexing class of chemicals linked to cancer, liver damage, and other health problems. He wants the court to recognize a nationwide class of plaintiffs exposed to the chemicals, and order major manufacturers to fund a scientific panel to study health impacts.

A DuPont spokesman said the company is disappointed with the decision and “will continue to vigorously defend our position in this matter.” A 3M spokeswoman also said the company was disappointed, and that it “acted responsibly in connection with products containing PFAS.” The defendant companies haven’t signaled whether they will appeal.

Harwick’s lawyer—Taft Stettinius and Hollister LLP attorney Robert Bilott, who is well known for previous victories in chemicals litigation—celebrated the ruling for giving plaintiffs a chance to hold manufacturers “fully responsible” for the impacts of their products.

Environmental Working Group President Ken Cook likewise called it “a significant victory” in the broader effort to address the impact of PFAS.

Limited Impacts?

But lawyers who advise companies on their potential PFAS legal risks shrugged off the court’s decision to let the Hardwick case advance, saying it has limited impacts on the broader liability landscape.

“Parts of the decision will be relevant, but I don’t know that I would characterize them as so significant as to have huge implications in the other cases,” Robinson & Cole LLP attorney James P. Ray said.

The Hartford, Conn.-based lawyer isn’t involved in PFAS litigation, but represents companies that are monitoring their legal risks.

“It’s still at a very preliminary stage, so the fact that the plaintiffs’ claims have survived this initial hurdle, I don’t view as surprising,” Ray said.

Bigger Hurdle

Akerman LLP lawyer Matthew J. Schroeder, a commercial litigator who represents industry clients that could face PFAS liability, said the bigger hurdle for Hardwick and his lawyers is to get the court’s approval on the proposed class.

“I don’t think the seminal question has been reached yet and the one that most people are interested in: whether or not the class is going to be certified,” he said. “They haven’t gotten to the rubicon yet.”

Baker Donelson attorney Mitchell S. Ashkenaz, who isn’t involved in the case but whose practice involves defending companies against tort claims, said he’s also keeping an eye on the class certification stage.

“I hesitate to say that it’s a bellwether case here,” he said of the Hardwick litigation. “It’s another in a long line of cases where PFAS is clearly becoming an issue.”

“Further down the road, when we get into certification,” he added, “is really where we’re going to see how big of an impact this case really can have on cases that follow.”

Inside the Decision

Still, Judge Edmund A. Sargus Jr.'s decision to let the case advance foils manufacturers’ efforts to end the litigation before the expensive discovery process begins.

Sargus, an appointee of former President Bill Clinton, rejected the companies’ arguments for dismissal, including a claim that Hardwick’s requested relief—a scientific panel to study health risks—was beyond the court’s power.

The judge concluded that such a scientific panel would qualify as medical monitoring, which is a permitted form of relief under legal precedent in Ohio and “is not exceptional.”

Sargus made clear in his Sept. 30 decision that his ruling had no bearing on whether he would ultimately approve the proposed nationwide class of plaintiffs.

“In this Opinion and Order, the Court reviews only the plausibility of Mr. Hardwick’s individual claims and makes no determination as to whether they are appropriate for class certification,” he wrote.

Other Cases

The developments in the Ohio case come as PFAS manufacturers are going on offense in other courtrooms.

In New Hampshire, for example, 3M Co. and a water utility in Plymouth, N.H., are suing the state to stop it from enforcing its new limits for PFAS in drinking water.

New Hampshire set limits for four PFAS in public drinking water, ranging from 11 parts per trillion to 18 parts per trillion. The limits went into effect Oct. 1.

New Jersey has also proposed setting drinking water limits, known as maximum contaminant levels, for PFAS in the same range.

PFAS are present in many consumer and industrial products, including nonstick and stain-resistant coatings in clothing, fast-food wrappers, and carpets. Firefighting foams, especially those made to put out fuel fires, also commonly contain PFAS.

The Ohio case is Hardwick v. 3M Co., S.D. Ohio, No. 2:18-cv-01185, 9/30/19.

—With assistance from Sylvia Carignan.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Chuck McCutcheon at cmccutcheon@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com