Hardwick v. 3M Co.

589 F.Supp.3d 832

Kevin D. HARDWICK, Plaintiff,

v.3M COMPANY, et al., Defendants.

Case No. 2:18-cv-1185

United States District Court, S.D. Ohio, Eastern Division.

Signed March 7, 2022

David John Butler, Jonathan N. Olivito, Taft Stettinius & Hollister LLP, Columbus, OH, Brian A. Morris, Robert A. Bilott, Taft Stettinius & Hollister, Cincinnati, OH, Gary J. Douglas, Pro Hac Vice, Michael A. London, Pro Hac Vice, Rebecca G. Newman, Pro Hac Vice, Douglas & London, P.C., New York, NY, Neil E. McWilliams, Jr., Pro Hac Vice, Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, PA, Pensacola, FL, for Plaintiff.

Shawn J. Organ, Organ Cole LLP, John Joseph Kulewicz, Richard Donovan Schuster, Vorys Sater Seymour & Pease, Columbus, OH, Daniel Leslie Ring, Pro Hac Vice, Joshua D. Yount, Pro Hac Vice, Megan E. Stride, Pro Hac Vice, Michael Scodro, Pro Hac Vice, Mayer Brown LLP, Chicago, IL, for Defendant 3M Company.

Shawn J. Organ, Erik J. Clark, Sean M. Stiff, Organ Cole LLP, Columbus, OH, Andrew D. Carpenter, Pro Hac Vice, Shook, Hardy & Bacon LLP, Kansas City, MO, John K. Sherk, Pro Hac Vice, Shook, Hardy & Bacon LLP, San Francisco, CA, Kristofor T. Henning, Pro Hac Vice, McCarter & English, LLP, Philadelphia, PA, Lanny S. Kurzweil, Pro Hac Vice, McCarter & English, LLP, Newark, NJ, Michael P. Kelly, Pro Hac Vice, McCarter & English, LLP, Wilmington, DE, Natalie S. Watson, Pro Hac Vice, McCarter & English, LLP, East Brunswick, NJ, for Defendant E.I. du Pont de Nemours and Company.

Shawn J. Organ, Erik J. Clark, Sean M. Stiff, Organ Cole LLP, Columbus, OH, Andrew D. Carpenter, Pro Hac Vice, David R. Erickson, Pro Hac Vice, Mitchell F. Engel, Pro Hac Vice, Shook, Hardy & Bacon LLP, Kansas City, MO, John K. Sherk, Pro Hac Vice, Shook, Hardy & Bacon LLP, San Francisco, CA, Kristofor T. Henning, Pro Hac Vice, McCarter & English, LLP, Philadelphia, PA, Lanny S. Kurzweil, Pro Hac Vice, McCarter & English, LLP, Newark, NJ, Michael P. Kelly, Pro Hac Vice, McCarter & English, LLP, Wilmington, DE, Natalie S. Watson, Pro Hac Vice, McCarter & English, LLP, East Brunswick, NJ, for Defendant The Chemours Company.

Ronald S. Kopp, Jessica A. Lopez, Roetzel & Andress, Akron, OH, Shawn J. Organ, Organ Cole LLP, Columbus, OH, Adina D. Bingham, Pro Hac Vice, Glen R. Stuart, Pro Hac Vice, Morgan, Lewis & Bockius LLP, Philadelphia, PA, Charles E. Raynal, Pro Hac Vice, Melanie Black Dubis, Pro Hac Vice, Parker Poe Adams & Bernstein, LLP, Raleigh, NC, Robert H. Jordan, Pro Hac Vice, Parker Poe Adams & Bernstein, LLP, Charleston, SC, Steven D. Weber, Pro Hac Vice, Parker Poe Adams & Bernstein, LLP, Charlotte, NC, for Defendant Archroma Management LLC.

James A. King, Porter Wright Morris & Arthur, Shawn J. Organ, Organ Cole LLP, Columbus, OH, Daniel A. Spira, Pro Hac Vice, Sara J. Gourley, Pro Hac Vice, Sidley Austin LLP, Chicago, IL, Lisa M. Gilford, Pro Hac Vice, Sidley Austin LLP, Los Angeles, CA, Maja C. Eaton, Pro Hac Vice, River Forest, IL, for Defendants Arkema, Inc., Arkema France, S.A.

Shawn J. Organ, Organ Cole LLP, Columbus, OH, Theodore M. Grossman, Rebekah E. Blake, Pro Hac Vice, Jones Day, New York, NY, Louis A. Chaiten, Jones Day, Cleveland, OH, for Defendant Daikin Industries Ltd.

Dustin M. Koenig, Matthew A. Kairis, Jones Day, Shawn J. Organ, Organ Cole LLP, Columbus, OH, Theodore M. Grossman, Rebekah E. Blake, Pro Hac Vice, Jones Day, New York, NY, for Defendant Daikin America, Inc.

Drew H. Campbell, Bricker & Eckler, Shawn J. Organ, Organ Cole LLP, Columbus, OH, Crystal Lohmann Parker, Pro Hac Vice, Daniel J. Toal, Pro Hac Vice, Jaren Janghorbani, Pro Hac Vice, Theodore V. Wells, Jr., Pro Hac Vice, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, Kegan A. Brown, Pro Hac Vice, Latham & Watkins LLP, New York, NY, Gwyn Williams, Pro Hac Vice, Latham & Watkins LLP, Boston, MA, for Defendant SolvaySpecialty Polymers, USA, LLC.

Matthew Steven Brown, Carl A. Aveni, II, Carlile Patchen & Murphy LLP, Shawn J. Organ, Organ Cole LLP, Columbus, OH, Clifford Zatz, Pro Hac Vice, Laura Offenbacher Aradi, Pro Hac Vice, Peter C. Condron, Pro Hac Vice, Crowell & Moring LLP, Washington, DC, for Defendant AGC Chemicals Americas, Inc.

OPINION AND ORDER

EDMUND A. SARGUS, JR., UNITED STATES DISTRICT JUDGE

This matter is before the Court on Plaintiff's Motion for Class Certification (ECF No. 164), Defendants’ Memorandum in Opposition (ECF No. 200,¹ 201² ), and Plaintiff's Reply in Support of his Motion (ECF No. 210). For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion and CERTIFIES the following class:

Individuals subject to the laws of Ohio, who have 0.05 parts per trillion (ppt) of PFOA (C-8) and at least 0.05 ppt of any other PFAS in their blood serum.

I. INTRODUCTION

Mr. Hardwick filed this action as a related case to the multidistrict litigation ("MDL") In Re: E. I. Du Pont de Nemours and Company C-8 Personal Injury Litigation , 2:13-md-02433, pending before this Court. The MDL dealt with ammonium perfluorooctanoate acid ("PFOA" or "C-8") which is a man-made substance that is in the per- and polyfluoroalkyl ("PFAS") group of chemicals. PFAS are often referred to as "forever chemicals" because of their unique chemical stability. Government agencies estimate that unlike most chemicals ingested, PFOA and numerous of the PFAS accumulate in a human body for years, as opposed to hours, and in the environment for millennia. Agency for Toxic Substances and Disease Registry, 2018, Toxicological Profile for Perfluoroalkyls. Draft for Public Comment , June 2018, https://www.atsdr.cdc.gov/toxprofiles/tp200.pdf.

The C-8 MDL originated from a class action in West Virginia that encompassed approximately 70,000 people. Leach v. E. I. du Pont de Nemours & Co. , No. 01-C-698 (Wood County W. Va. Cir. Ct.) ("Leach Case "). This class of individuals participated in an epidemiological study, which under the terms of a class action settlement, ultimately permitted approximately 3,500 class members to file personal injury cases against DuPont. At the same time, under the Settlement Agreement, approximately 67,000 class members were barred from asserting claims against DuPont for the C-8 they ingested in their water.

The 3,500 cases ultimately became the C-8 MDL, five of which were tried to juries. Currently, all of the individual C-8 MDL cases have either been tried or were part of two global settlements, with the exception of one case that is still on appeal. This purported class action remains.

At the heart of the instant lawsuit is Mr. Hardwick's allegation that Defendants, manufacturers and distributers of PFAS, knew for decades that these chemicals presented a serious risk of disease and harm, engaged in a systematic effort to conceal and deny the dangers of PFAS, misled regulators and the public, and made billions of dollars in profits while contaminating millions of people without their knowledge. Defendants deny these allegations on numerous grounds.

Issues abound in the briefing before the Court as to the impact of PFAS on the health of the public. With discovery only permitted to support the parties’ positions on class certification, the parties offer expert testimony, Congressional Hearing transcripts and documents, governmental agency studies, private chemical industry/economic development groups’ studies, and environmental and health watchdog groups’ studies. See e.g. , Agency for Toxic Substances and Disease Registry, Per- and Polyfluoroalkyl Substances (PFAS) and Your Health, Multi-Site Health Study , https://tinyurl.com/1lq6kr5p; Environmental Protection Agency, Research on Per and Polyfluoroalkyl Substances (PFAS) , https://www.epa.gov/chemicalresearch/research-and-polyfluoroalkyl-substances-pfas#1; Hearing on The Devil They Knew—PFAS Contamination and the Need for Corporate Accountability, Part II , Subcomm. on Env't of the H. Comm. on Oversight & Reform, 116th Cong. 1–5 (2019) (written responses to committee questions of Denise Rutherford, Senior VP of Corp. Affairs, 3M), https://tinyurl.com/yd6st3om; Liz Bowman, FluoroCouncil Cos. to Phase out Long-Chain Chemicals by Year's End , Am. Chemistry Council (Jan. 20, 2015); National Institute of Environmental Health Sciences, PFAS Research , https://www.niehs.nih.gov/research/programs/pfas/index.cfm.

Generally, Defendants take the position the dose determines the harmful effects of PFAS because "[a] fundamental principle of toxicology is that the dose makes the poison." (Defs’ Mem. in Opp. at 29, ECF No. 201.) Defendants contend that Plaintiff offers no method to measure the health effects of the PFAS he has in his blood and body. Thus, Defendants conclude that even if "some real-world dose of some PFAS could have health effects," on individuals, "the age, gender, weight, genetic predispositions, medical history, lifestyle, and existing health issues would have a big impact in determining whether any particular class member might face increased health risks." Id. at 30.

Plaintiff contends that "dose" is irrelevant in this case "because PFOA and PFAS harm humans at any level, and thus, there needs to be a scientific panel to study and address those issues." (Pl.’s Reply at 13, ECF No. 210.) He maintains that the class is defined in a way that requires each member to have above a specific amount of PFOA and PFAS in his or her blood, thus the individual attributes of a class member are irrelevant: "No matter where someone lives, what they do, or the choices they have made, Defendants’ PFAS have contaminated the blood of all the proposed class members just like it has contaminated Mr. Hardwick's blood," causing them to "all face the same persistent, continuing, and accumulating contamination of their blood and bodies with Defendants’ chemicals—and the associated risks and threats of developing various diseases, including cancer." (Pl.’s Mot. for Class Cert. at 45, ECF No. 164.)

The parties agree that PFOA and other PFAS have entered the bodies of nearly every American. The parties dis...