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United States Court of Appeals for the Sixth Circuit
September 9, 2022, Filed
This case concerns a group of chemicals known as PFAS—short for per- and polyfluoroalkyl substances. PFAS comprises about 5,000 different compounds that contain bonds between carbon and fluorine atoms. The exceptional strength of those bonds leads PFAS to degrade slowly over time, and, as a result, to accumulate [*3] within the human body. Though the long-term health effects of PFAS are uncertain, the present parties agree that nearly all Americans have PFAS in their blood. And plaintiffs allege that such exposure may increase the risk of developing diseases like cancer.
In response, plaintiffs filed suit in 2018, hoping to certify a nationwide class of every individual in the United States with PFAS in his or her blood—a class of nearly the entire nation. And they want an injunction ordering defendants to fund a "science panel" to study the effects of PFAS—whether and to what extent it may increase the risk of disease—and potentially to provide medical monitoring for every member of the class.
The district court recently took a substantial step in that direction, certifying a class of every individual "subject to the laws of Ohio" whose blood contains 0.05 parts per trillion of PFAS—an amount undetectable with current technology. Thus, as both parties acknowledge, the class comprises nearly all 11.8 million residents of Ohio, along with anyone else otherwise subject to its laws.
Defendants now petition this court for interlocutory review of the certification decision. For the reasons below, we find [*4] that the certification decision involves important and unsettled questions of law and that it could prove the death knell of the litigation. We thus GRANT defendants' petition for interlocutory review and hold that they may present their arguments against certification to a merits panel for definitive resolution.
PFAS does not exist in nature but, nevertheless, is ubiquitous. First developed in the 1930s and 1940s, it was "put into large-scale manufacture and use by the 1950s." Indeed, "thousands of companies make or once made thousands of PFAS-based products—including medical devices, pharmaceuticals, food packaging, building materials, automotive parts, water-repellent clothing, and a profusion of other goods." As a result, no single defendant in this suit accounts "for all the PFAS or products produced." And no defendant makes certain types of PFAS at present, though production continues in foreign nations like China.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2022 U.S. App. LEXIS 25452 *; 2022 WL 4149090
In re E.I. DUPONT DE NEMOURS & COMPANY C-8 PERSONAL INJURY LITIGATION;In re 3M COMPANY, et al., Petitioners
Notice: CONSULT 6TH CIR. R. 32.1 FOR CITATION OF UNPUBLISHED OPINIONS AND DECISIONS.
Prior History: Hardwick v. 3M Co., 2022 U.S. Dist. LEXIS 39300, 2022 WL 668339 (S.D. Ohio, Mar. 7, 2022)
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Civil Procedure, Appeals, Appellate Jurisdiction, Interlocutory Orders, Special Proceedings, Class Actions, Appellate Review, Certification of Classes, Judicial Officers, Judges, Discretionary Powers, Judicial Discretion, Administrative Law, Judicial Review, Reviewability, Jurisdiction & Venue, Constitutional Law, Case or Controversy, Standing, Elements, Governments, Courts, Authority to Adjudicate, Justiciability, Injury in Fact, Prerequisites for Class Action, Adequacy of Representation, Maintainability, Typicality, Numerosity, Commonality, Judicial Precedent, Preliminary Considerations, Equity, Relief