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By Shannon Kelleher
A federal appeals court should grant a rehearing in a class action lawsuit filed against the makers of toxic PFAS chemicals, or per- and poly-fluoroalkyl substances, after a panel of three federal judges disregarded legal precedent and misstated crucial facts in rejecting claims of liability alleged against PFAS makers, according to a petition filed by plaintiffs’ lawyers in the closely watched legal battle.
The request for rehearing comes after the Nov. 27 ruling by the Cincinnati, Ohio-based 6th U.S. Circuit Court of Appeals, which reversed a lower court’s approval of the lawsuit brought on behalf of Ohio residents who want PFAS makers 3M, DuPont and others to pay for medical monitoring and studies that will analyze the health impacts of PFAS contamination the residents have been exposed to.
The plaintiff’s attorneys have requested either a panel rehearing; a hearing before all judges of the court; or permission for the plaintiff to refile.
Lead plaintiff Kevin Hardwick worked as a firefighter for 40 years and used PFAS-containing foams at work.
He alleges that ten companies, including chemical giants 3M, DuPont and related companies, caused his blood — and the blood of other Ohio residents — to become contaminated with potentially dangerous levels of PFAS chemicals.
The judges who rejected the allegations said in their opinion that Hardwick could not trace the chemicals in his blood back to the ten defendants, citing “the thousands of companies that have manufactured chemicals of this general type over the past half-century.”
In the filing by plaintiffs’ lawyers on Dec. 11, the lawyers for the class action said the judges were factually wrong on multiple fronts, including stating that there are thousands of PFAS manufacturers.
One of the PFAS toxins found in Hardwick’s blood is perfluorooctane sulfonic acid (PFOS). PFOS has only been made by defendant 3M, for instance, a fact not even disputed by 3M, the petition states. Another type of PFAS found in his blood was perfluorooctanoic acid (PFOA).
“Defendants do not dispute that they caused PFOA (and other PFAS) to be created and deposited into human blood. Nor do they dispute that these toxins did not exist before Defendants created them,” the Hardwick petition states.
The defendants additionally have been identified by the U.S. Environmental Protection Agency as “known makers” of PFOA, according to the petition for rehearing.
“Rewriting the traceability standard, the Opinion dismantled a certified class and even denied an individual plaintiff the right to sue, prior to any merits discovery,” the petition states.
The consequences of the appeals court decision “loom large,” the petition states:
“Defendants have conspired to contaminate the bodies and blood of nearly every American with their toxins — commonly called ‘forever chemicals’ because they persist and accumulate, causing serious disease. This is, therefore, an exceptionally important class action, akin to the landmark tobacco and asbestos litigations.”
If reconsideration is not permitted, “the lesson is that companies should conspire together to poison people with the same poison and none of them can be held responsible, unless the poisoned person can spell out in his complaint (and before any merits or expert discovery occurs) the detailed scientific analyses and expert fingerprinting work necessary to determine how much of that poison came from each company,” the filing states.
There are over 12,000 types of PFAS “forever chemicals,” which do not break down naturally and can leach into drinking water from industrial sites, sewage treatment plants, landfills and anywhere PFAS has been used or disposed of.
PFAS have been found in at least 45% of U.S. tap water, according to the U.S. Geological Survey, and in the blood of about 97% of Americans, according to the Centers for Disease Control and Prevention.
Exposure to the chemicals has been linked to numerous health problems, including kidney cancer, testicular cancer, thyroid disease, thyroid cancer and ulcerative colitis.
Recent research suggests PFAS may also disrupt bone development in children and young adults.
The International Agency for Research on Cancer, an arm of the World Health Organization, in November, classified PFOA as carcinogenic to humans and PFOS as possibly carcinogenic to humans.
The Swedish Supreme Court on Dec. 5 ruled that PFAS contamination of the blood is itself considered a “personal injury” for residents of a town whose drinking water contained the chemicals, a decision that could affect lawsuits in Sweden and elsewhere.
Originally published by The New Lede.
Shannon Kelleher is a staff reporter for The New Lede.
