The recent decision by the Sixth Circuit in Hardwick and a review of the law from various jurisdictions supports the challenges that Plaintiffs face in proving standing for class certification in PFAS lawsuits. Late in 2023, the U.S. Court of Appeals for the Sixth Circuit struck down class certification for plaintiffs alleging injuries from exposure to per- and polyfluroaylkyl substances (PFAS), known as “forever chemicals.”  In Re: E.I. Du Pont de Nemours and Co. C-8 Pers. Inj. Litig., (Hardwick v. 3M Co.), 87 F.4th 315 (6th Cir. 2023).

In Hardwick, the Sixth Circuit addressed an effort by a career firefighter to certify a statewide class action for exposure to PFAS in firefighting foam. At the district court level, suit was filed against 10 alleged PFAS manufacturers following blood tests that showed the named plaintiff had traces of five PFAS compounds in his blood. The district court was asked to certify a nationwide class consisting of every person residing in the United States for one year or more since 1977 with 0.05 ppt or more of PFOA and PFAS in their blood. However, the district court only certified a statewide class of 11.8 million persons subject to Ohio laws.

On appeal, the Sixth Circuit vacated the district court’s class certification and remanded the case with instructions to dismiss the case for lack of jurisdiction linked here. The court held that the plaintiff lacked standing due to the absence of particular allegations that each individual defendant manufactured or provided a traceable pathway for exposure to any of the specific PFAS compounds detected in his system. The court was not impressed by plaintiff’s pleading against the defendants as a collective, and asserting only conclusory allegations that failed to identify which companies manufactured the PFAS compounds to which he was allegedly exposed.

The court’s standing examination considered the elements: 1) had plaintiff suffered an actual injury; 2) traceable to a defendant; and 3) that a court may redress. The court’s review focused on traceability, an element that requires plaintiff’s allegations to demonstrate facts “plausibly supporting an inference that each defendant ‘likely caused’ at least one of those PFAS compounds to end up in his blood.” The court rejected the plaintiff’s collective allegations against all defendants, stating the plaintiff “must tie his injury to each defendant.” Essentially, the court stated that a plaintiff may not sue multiple defendants by making them a collective group in the general allegations when more particular facts may only allow the plaintiff’s claims against specific defendants, not all.

The court’s scrutiny of the plaintiff’s claims in Hardwick is potentially useful not only in the growing glut of PFAS litigation, which seems only likely to expand, but in many claims where a plaintiff alleges exposure to toxic substances, but fails to particularize the substance and its manufacturer, and instead simply asserts claims against an industry group of defendants as a collective. Utilizing standing and applying a similar test to claims as done in Hardwick to combat vague pleadings may be more useful in some jurisdictions than others.

For instance, in Illinois, courts have considered similar arguments when a plaintiff brings a claim against a collective or an industry and fails to particularize its exposure. In Smith v. Eli Lilly & Co., 137 Ill.2d 222, 232, 560 N.E.2d 324 (1990), the Illinois Supreme Court found that: “A fundamental principle of tort law is that the plaintiff has the burden of proving by a preponderance of the evidence that the defendant caused the complained-of harm or injury; mere conjecture or speculation is insufficient proof.” Id.  The court stated that while each manufacturer owes a duty to those who will use its product or who might be injured by it, that duty is not so broad as to extend to anyone who uses or might be injured by a like-kind product supplied by another. Smith, 137 Ill.2d at 265, 560 N.E.2d 324, at 343.

Illinois courts have gone on to find that the causation-in-fact element of a cause of action requires a plaintiff to establish a causative link between the tortious acts of a specific defendant and the injuries for which recovery is sought. Thus, the failure to identify to which of the defendants’ products, amongst an industry group of defendants, Plaintiff was actually exposed is grounds for dismissal of a complaint for failure to properly allege causation in fact. Lewis v. Lead Indus. Ass’n, Inc. 342 Ill.App.3d 95 (2003).

Further, in Raja Tr. of Bharti Sona Tr. v. Patel, No. 16 CVS 4472, 2017 WL 1129981 (N.C. Super. Mar. 23, 2017), a North Carolina court granted defendants’ motion to dismiss because the plaintiffs failed to establish standing to sue other members of the LLC. The plaintiffs failed to make “any allegations or advanced any evidence concerning any economic loss or injury that [plaintiffs] may have suffered as a result … including any allegation or proof that Defendants caused [plaintiffs] to suffer injury … .” Instead, the plaintiffs’ allegations were conclusory and non-specific.  At best, the plaintiffs alleged the possibility of a future injury, which North Carolina courts have made clear is insufficient to establish a cognizable injury in fact. See, e.g., Pierson v. Buyher, 330 N.C. 182, 186, 409 S.E.2d 903, 906 (1991).

In a Fifth Circuit property dispute case, 920 S. Beach Blvd., LLC v. City of Bay St. Louis, Miss., No. 1:21-CV-263-TBM-RPM, 2023 WL 2749170 (S.D. Miss. Mar. 31, 2023), the court held that the plaintiff had standing against the City because the plaintiff specifically pleads a causal connection between the violation of his rights and the conduct of the City.  However, Plaintiff lacked standing against the remaining two defendants because general factual allegations of injury resulting from the defendant’s conduct may satisfy a plaintiff’s burden at the pleadings stage, “traceability nevertheless requires something more than conjecture.” Id., at *9. Similar to the Sixth Circuit ruling in Hardwick, the plaintiff’s allegations in 920 S. Beach Blvd., LLC were mere conjecture.

In a Louisiana data breach case, Bradix v. Advance Stores Co., 226 So. 3d 523, 528-529, 2017 La. App. LEXIS 1496, *6-8, 2017-0166 (La.App. 4 Cir. 08/16/17), the court found that the plaintiff had not established standing because his allegations regarding damages were hypothetical. “Louisiana’s standing requirement … provides that [e]xcept as otherwise provided by law, an action can only be brought by a person having a real and actual interest in what he asserts.‘” Id. at 6. Similar to the allegations in Hardwick, the plaintiff in Bradix brought claims alleging potential damages, which the court deemed insufficient.

However, in the Second Circuit, in Whitfield v. ATC Healthcare Servs., LLC, No. 22CV5005JMALGD, 2023 WL 5417330, at *4 (E.D.N.Y. Aug. 22, 2023), another data breach case, the court found the Plaintiff had established standing stating: “While a plaintiff’s injury must be ‘fairly traceable’ to a defendant’s actions, the causal connection element of standing creates ‘a standard lower than that of proximate causation.’  Quoting Carter v. HealthPort Tech., LLC, 822 F.3d 47, 55 (2d Cir. 2016).  ‘A defendant’s conduct that injures a plaintiff but does so only indirectly, after intervening conduct by another person, may suffice for Article III standing.’” Id. at 55–56.  Further, in a state court decision addressing a class action complaint for medical monitoring damages for alleged PFAS exposures, a New York appellate court upheld certification of a class of residential property owners with property near a manufacturing facility.  Burdick v. Tonoga, Inc., 112 N.Y.S.3d 342 (N.Y. App. Div. 2019).  Notably, neither standing nor traceability was addressed.

In the Third Circuit, in Salas v. Acuity-CHS, LLC, No. CV 22-317-RGA, 2023 WL 2710180, at *6 (D. Del. Mar. 30, 2023), another data breach case, the court found Plaintiff had satisfied the standing requirement at the motion to dismiss stage: “Although the traceability requirement ‘does not mean that plaintiffs must show to a scientific certainty that defendant’s [actions], and defendant’s [actions] alone, caused the precise harm suffered by plaintiffs,’ [citation omitted], plaintiffs must nevertheless show that their injuries ‘relate directly’ to the defendant’s conduct. See Id.”  In Long v. Se. Pennsylvania Transportation Auth., 903 F.3d 312, 322 (3d Cir. 2018), a Fair Credit Reporting Act case, the Third Circuit noted that in addressing standing, “the injury-in-fact element is not Mount Everest. The contours of the … requirement, while not precisely defined, are very generous, requiring only that claimant allege some specific, identifiable trifle of injury.’’ [citation omitted].

The standing requirement for proving PFAS and other chemical exposure class certification lawsuits is certainly an issue that will continue to be litigated, and the Hardwick decision adds to defendants’ arguments particularly as to traceability of exposures.

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