Numbering in the thousands, PFAS are found in consumer, commercial and industrial products, and due to their presence in so many products, it is challenging to assess the health impact of PFAS. In recent years, the EPA has issued a number of guidelines around PFAS in drinking water, and shown commitment to better understanding ways to detect PFAS and the amount of human exposure. Moreover, the U.S. Environmental Protection Agency has undertaken efforts to understand how to more efficiently remediate, manage, and dispose of PFAS present in drinking water supplies.
New regulations regarding products containing PFAS were enacted in four states in 2023, including California, Maine, Vermont, and Washington. Another six states have enacted PFAS regulations that go into effect in 2024 and 2025, including Colorado, Maryland, Connecticut, Minnesota, Hawaii, and New York. The above graphic outlines these regulations. The discovery of PFAS in drinking water has spurred states attorneys’ general to bring lawsuits on behalf of the constituents. These lawsuits seek to impose liability on the PFAS manufacturers related to drinking water contamination, and assert claims under various products liability laws and negligence. Recently, the Sixth Circuit heard oral argument in the class action entitled Hardwick, et al. v. 3M Co., Case No. 22-03765 (6th Cir. Oct. 19, 2023), where the defendants challenged the district court ’ s granting class certification for what is described as one of the largest products liability class actions in history. The class could encompass almost 12 million Ohio residents. The district court certified a class of Ohio residents with at least 0.05 parts per trillion of one PFAS in their blood serum. On appeal, the defendants advanced arguments regarding threshold issues as well as arguments related to Rule 23 of the Federal Rules of Civil Procedure. First, they argued the named plaintiff does not actually have an injury, and the plaintiff ’ s theory of fear of living with PFAS in the blood does not qualify as an injury-in-fact in the standing analysis. Additionally, defendants argued that none of the PFAS in Hardwick ’ s blood are traceable to them. Finally, the defendants asserted that the plaintiff ’ s desired remedy for injunctive relief cannot provide redress for Hardwick ’ s claimed injury insofar as he claims unwanted PFAS in his blood stream. With respect to Rule 23 arguments, the defendants argued that the class is not cohesive under Rule 23(b)(2) due to a heightened cohesion requirement. Additionally, the defendants contended that the class fails the commonality requirement prescribed by Rule 23(a) because a host of individual issues – including number of exposures, background statistics, medical history, lifestyle choices, and genetics – play a significant role in assessing damages. Further, defendants asserted that Hardwick ’ s request that the defendants fund a science panel to study the effects of PFAS and for medical monitoring are not a viable injunctive remedies, nor is enough detail provided for the science panel in terms of PFAS research. Finally, the defendants argued the class definition is too vague and whether an individual is subject to Ohio law is an individualized inquiry. The plaintiffs countered in their arguments that having at least one PFAS in his blood qualifies as an injury, and the PFAS are traceable to the defendants because they manufactured them. With regard to redressability, the plaintiff argued that ordering medical monitoring with an accompanying science panel suffices to investigate and determine potential injuries that could result from the presence of PFAS in the blood. The plaintiff attacked the standing argument as premature on the basis that no evidence of standing
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Duane Morris Product Liability And Mass Torts Class Action Review – 2024
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