(Adds details of the Court’s opinion in paragraphs 4-5, comments of the parties in paragraphs 8-9, background to the PFAS litigation in paragraphs 12-14) by Clark Mindock
A US appeals court on Monday granted 3M MMM.N , Corteva Inc CTVA.N , a subsidiary of EI du Pont de Nemours and Co, and other manufacturers of toxic chemicals known as “forever chemicals”, a large victory in their fight against legal liability for these substances, rejecting a lower court ruling that would have allowed an estimated 11.8 million Ohioans to sue the companies as a group.
The 6th US Circuit Court of Appeals, based in Cincinnati, Ohio, overturned a lower court’s approval of the massive class action, which included virtually all Ohio residents and placed considerable legal pressure on manufacturers of chemicals to settle the plaintiffs’ claims.
The court found that the lead plaintiff, Kevin Hardwick, filed an overly broad claim against the manufacturers and failed to demonstrate that the per- and polyfluoroalkyl substances, or PFAS, found in his body could be directly attributed to defendants, such as units of 3M, DuPont and others.
The court said Mr Hardwick’s complaint “rarely” targeted the actions of any one company and instead accused the companies collectively of contaminating the environment with the chemicals.
“It is rare for such an ambitious case to be filed on such a light basis,” Judge Raymond Kethledge wrote, noting that thousands of companies have manufactured PFAS, but only ten of them are on the list of the defendants in the case.
The appeals court ordered the trial court to dismiss Ms. Hardwick’s lawsuit, which sought to force companies to fund studies analyzing the health effects of PFAS. These chemicals are used in a wide range of consumer products, including non-stick pans and clothing, and have been linked to cancer and other diseases.
The lawsuit also sought to create a fund to monitor the health effects of PFAS exposure on Ohioans.
A 3M spokesperson said the company was pleased with the decision.
Robert Bilott, a lawyer for Hardwick, said the court’s decision goes “contrary to what we know about the history of PFAS manufacturing in the United States” and indicated that they are evaluating the possibility of appeal.
Representatives for the other defendants did not immediately respond to requests for comment.
These chemicals are often called “lifetime chemicals” because they do not break down easily in nature or in the human body.
The lawsuit is one of thousands filed in recent years against 3M, DuPont and other companies over alleged PFAS contamination.
In June, 3M agreed to pay $10.3 billion to settle hundreds of accusations of polluting drinking water with the chemicals, while Chemours Co CC.N, DuPont de Nemours Inc DD. N and Corteva
reached a similar deal with US water suppliers worth $1.19 billion.
The U.S. Environmental Protection Agency has called PFAS an “urgent public health and environmental problem” and has taken steps to regulate PFAS, including in drinking water.