2020 Environmental Real Estate Issues

A federal district (trial level) court certified a class action lawsuit against 10 manufacturers of per-and polyfluoroalkyl substances (PFAS) on behalf of every person “subject to the laws of Ohio” who has “0.05 parts per trillion (ppt) or more of PFOA (C-8) [which is a particular type of PFAS] and at least 0.05 ppt or more of any other PFAS in their blood serum.”

The 6th Circuit determined the district court was wrong to certify the class and remanded the case with an instruction to dismiss it for lack of jurisdiction.

PFAS in Blood of Firefighter
The class representative, Kevin Hardwick, is a 40-year firefighter who used firefighting foams that contained PFAS. The 6th Circuit said, “He does not know what companies manufactured those foams.” A blood test “revealed the presence of five particular PFAS compounds in his blood.  He does not know whether those particular PFAS were present in the foams he used.”

No Jurisdiction Due to Lack of Traceability
The 6th Circuit gave this characterization of the case: “Hardwick does not know what companies manufactured the particular chemicals in his bloodstream; nor does he know, or indeed have much idea, whether those chemicals might someday make him sick; nor, as a result of those chemicals, does he have any sickness or symptoms now.  Yet, of the thousands of companies that have manufactured chemicals of this general type over the past half-century, Hardwick has chosen to sue the ten defendants present here.”

In rejecting certification, the Court held that Hardwick’s pleadings, which contained only conclusory allegations against all “Defendants,” demonstrate that no specific defendant’s action could be traced to the PFAS in his blood; without traceability, Hardwick could not meet the jurisdictional requirement of standing.

To see the opinion https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0256p-06.pdf