Dive Brief:

• A federal judge in Ohio ordered the dismissal of a class-action lawsuit against 3M, DuPont de Nemours, Chemours and other chemical manufacturers on Monday, which alleged the companies were responsible for the contamination of per- and polyfluoroalkyl substances, or PFAS, in the state.
• A lower court allowed the case — whose class included every resident in Ohio — to proceed, but the Sixth Circuit of the U.S. Court of Appeals in Cincinnati said the complaint raised by the plaintiff, and by extension the class, is too broad and cannot trace the PFAS pollution to a specific source.
• The case’s failure may pour cold water on other communities looking to hold chemical manufacturers responsible for PFAS pollution. PFAS, also known as “forever” chemicals because they persist in an environment for thousands of years, have been found in nearly half the nation’s waterways. 

Dive Insight:

Judge Raymond Kethledge said Kevin Hardwick, a former firefighter and the plaintiff in the case, failed to link any of the five chemicals found in his bloodstream to any of the named defendants. Further, Hardwick chose to pursue legal action against 10 specific companies, even though there are “thousands of companies that have manufactured chemicals of this general type over the past half-century.” 

In addition to 3M, DuPont and Chemours, the other seven defendants named in the lawsuit include Archroma Management, Arkema, Arkema France, AGC Chemicals Americas, Daikin Industries, Daikin America and Solvay Specialty Polymers USA. 

Hardwick first brought the suit in 2018 and originally sought to include nearly everyone in the U.S., but the district court whittled the certified class down to Ohio’s 11.8 million residents.

Kethledge said he reversed that order and was remanding the case to the lower court to dismiss it for lack of jurisdiction.

The defendants appealed the lower court’s order by arguing for lack of standing.

The appeals court ruling said that since Hardwick’s injury is the presence of five different types of PFAS in his blood, he needed to show that each named defendant “likely caused” the presence of at least one of these.

“Seldom is so ambitious a case filed on so slight a basis,” Kethledge said in his dismissal. “To allege simply that these defendants manufactured or otherwise distributed ‘PFAS,’ therefore, is patently insufficient to support a plausible inference that any of them bear responsibility for the particular PFAS in Hardwick’s blood.”  

Kethledge noted that PFAS are nearly omnipresent in Americans’ daily life and can be found in medical devices, non-stick cookware, firefighting foam and plenty more. The class of chemicals consists of thousands of different compounds, and the Centers for Disease Control and Prevention is currently studying the health effects they have.  

Last year, the U.S. Geological Survey published a report that was the first of its kind to examine the presence of PFAS in the nation’s waterways and found at least one type of PFAS compound was found present in 45% of sampled U.S. drinking water.