The Sixth Circuit will soon decide whether to weigh in on a class certification dispute that could set off a new wave of litigation to force chemical companies, including 3M Co. and Chemours Co., to pay for monitoring exposures to so-called forever chemicals.
Ohio firefighter Kevin D. Hardwick wants a federal court in the state to provide potentially millions of people with medical monitoring for per- and polyfluoroalkyl substances, also known as PFAS, at the expense of the chemical companies. He also wants the companies to pay for a science panel that would study the substances under an order from a federal court in Ohio.
Hardwick’s request for a science panel could cost the companies “untold billions,” business and law groups told an appeals court March 28.
There’s mixed law on whether medical monitoring is a remedy or an independent cause of action, according to Lauren Brogdon, partner in the Energy Litigation Practice Group at Haynes and Boone LLP. Many states don’t recognize it as either, she said. Ohio recognizes medical monitoring, she said, but “even the law there isn’t completely settled.”
Hardwick sought to certify a class of all Americans, but the federal judge in Ohio limited it to people subject to the laws of the state who have specific amounts of PFAS in their blood.
The class could include potentially 11 million people, or the population of the state, according to Brogdon.
Plaintiffs will need to show exposure to PFAS at a certain level across those 11 million, offer common proof of a significant increased risk of developing a disease, and establish that the monitoring requested is necessary, she said.
That is “going to be an uphill battle,” she said.
If the plaintiffs are successful, there will likely be a lot of similar lawsuits in other states, she said. This case is “certainly the one to watch going forward,” according to Brogdon.
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