In late November, an Ohio appeals court dismissed a high-profile class action which targeted the manufacturers of toxic firefighting foams. Reversing the decision of a lower court, the 6th Circuit panel concluded that the plaintiff lacked standing and advanced overbroad charges.
The dismantling of the Ohio class action represents a temporary setback in a much broader legal campaign to hold the producers of hazardous “forever chemicals” accountable. Although two prominent defendants, 3M and DuPont, celebrated the decision, they must still contend with mounting lawsuits from several states and a growing firefighting foam multidistrict litigation.
As the firefighting foam lawsuits advance in federal court, we are closely following and reporting on critical developments. If you or someone you know sustained dangerous levels of PFAS exposure through AFFF, contact us today for more information and guidance on how best to proceed with a AFFF firefighting foam lawsuit.
Sixth Circuit Panel Cites Lack of Standing and Insufficient Complaint
Kevin Hardwick was a firefighter for over forty years and frequently interacted with toxic aqueous film-forming foam (AFFF). In 2018, he filed a putative firefighting foam class action against prominent AFFF manufacturers, alleging that their products were responsible for unhealthy PFAS levels in his bloodstream.
Initially, Hardwick’s firefighting foam AFFF lawsuit sought to enlist the entire U.S. population as class members but restricted eligible claimants to the population of Ohio after facing pushback from a lower court. 3M and DuPont de Nemours appealed the decision to the 6th Circuit Court of Appeals.
Writing for the court, Judge Raymond Kethledge sustained the companies’ objections and ordered the class action remanded and dismantled. Kethledge asserts in his opinion that the plaintiff failed to establish standing through the assignment of precise instances of wrongdoing to defendants which “likely caused” his injury.
Instead, Hardwick refers continually to defendants in a collective sense, undercutting the “plausible liability” of each party. In addition, Hardwick’s failure to identify the specific AFFF products to which he was exposed or the potential PFAS they contained rendered his complaint untenable. Ultimately, Judge Kethledge went so far as to state “[s]eldom is so ambitious a case filed on so slight a basis”.
Largest “Forever Chemical” Class Action to Date
Hardwick’s class action would have included most if not all of Ohio’s 11.8 million residents. Although AFFF manufacturers had encountered “forever chemical” class actions involving thousands of class members in the past, none approached the magnitude of the Ohio case.
One of the primary disputes between the prosecution and defense pertained to the parameters of the class. Hardwick proposed that any individual subject to Ohio’s laws with PFAS or PFOA levels surpassing 0.05 parts per trillion were eligible members. In response, the defendants alleged that such levels are undetectable with current technology.
Requested Compensation in Dismantled Class Action
In class action litigation, plaintiffs reserve the right to seek compensation for the injuries they sustained on account of the defendant’s recklessness or negligence. On behalf of the class members, Hardwick sought two primary forms of redress from defendants.
The first involved the creation of an independent panel of scientists and experts tasked with the investigation of PFAS contamination in Ohio. In addition, Hardwick sought to direct payouts from a settlement or final decision to a fund monitoring the health of at-risk class members.
Defendants in Ohio PFAS Class Action
Although one of the citations the court gives for dismantling the class action pertains to the arbitrary selection of defendants, nevertheless the named parties are known or probable contributors to the contamination of American waterways. For example, 3M Company provided toxic AFFF to military installations and private facilities for decades. DuPont de Nemours profited immensely from the sale of AFFF through its former subsidiary, Chemours.
Additional litigation throughout the country either currently targets or may include the former defendants in the Ohio PFAS class action, including:
- Chemours
- Archroma Management
- Arkema
- Arkema France
- AGC Chemicals Americas
- Daikin Industries
- Daikin America
- Solvay Specialty Polymers USA
3M Company’s Role in PFAS Contamination
In the aftermath of the USS Forrestal disaster, the United States Navy sought to develop a flame retardant capable of suppressing Class B petroleum and oil fires. It requested the assistance of the renowned 3M Company, which devised a successful formula for a firefighting foam using fluorinated chemicals.
Initially sold as “light water”, 3M’s aqueous film-forming foam (AFFF) soon became a staple at military installations throughout the country. In addition to the company’s government-contractor arrangement, it sold commercial AFFF to petrochemical facilities, airports, and municipal fire stations.
However, 3M was alerted to the environmental and human health hazards of AFFF as early as the 1970s. At one point, former 3M president of U.S. operations, Lewis Lehr, arranged for third-party experts to assess the threat of PFAS exposure to employees and the general population. Chief executives subsequently altered the alarming reports in an effort to avoid mandatory disclosures under the Toxic Substances Act.
The result has been extensive environmental contamination and serious health complications amongst those who sustained dangerous exposure to AFFF. In highly damaging testimony, former 3M toxicologist John Butenhoff admitted that the overwhelming majority of perfluorooctane sulfonate (PFOS) contamination could be traced back to 3M.
DuPont de Nemours Knew of the Risks of AFFF
DuPont de Nemours once manufactured and sold AFFF through Chemours, its former subsidiary. The American multinational completed an amicable spin-off of Chemours in 2015, which the company described as a pivotal step in its effort to modernize.
However, the development occurred in the midst of novel AFFF litigation which had emerged in multiple jurisdictions. After DuPont’s merger of equals with Dow Chemical in 2017, the company encountered growing legal jeopardy as it routinely appeared in AFFF lawsuits.
Although the rebranded DuPont de Nemours has continually denied direct liability, court documents have revealed its knowledge of AFFF’s toxicity since 1978. In fact, corporate management even went so far as to implement compulsory health inspections of employees who had sustained dangerous levels of PFAS exposure.
In much the same way that 3M consciously withheld crucial information from regulators and consumers, DuPont refrained from reporting its internal conclusions about AFFF’s risks.
State Attorneys General File Series of AFFF Firefighting Foam Lawsuits
The consequences of 3M and DuPont’s malfeasance include the extensive pollution of natural resources and profound risks to human health. In recent years, state and municipal governments have invested millions of dollars into assessing PFAS contamination and remediating compromised waterways and utilities.
In an effort to recoup their losses and gain financial assistance for future initiatives, a series of state attorneys general have filed lawsuits against 3M, DuPont, and other PFAS manufacturers, including:
- Ashley Moody, Florida
- Michelle Henry, Pennsylvania
- Alan Wilson, South Carolina
- Rob Bonta, California
- Jonathan Skrmetti, Tennessee
- Ellen Rosenblum, Oregon
- Kwame Raoul, Illinois
AFFF MDL Targets Prominent Manufacturers of Toxic Firefighting Foam
Upon the issuance of the Ohio circuit court’s decision, Reuters reported that a 3M spokesperson expressed the company’s satisfaction with the ruling. However, the beleaguered chemical manufacturer’s legal troubles are far from over.
In an ongoing multidistrict litigation (MDL) in South Carolina federal court, 3M, DuPont, and dozens of additional manufacturers face over 6,000 personal injury lawsuits from those who sustained occupational injuries connected to AFFF exposure. In contrast to class action lawsuits, MDLs involve the consolidation of individual cases for pretrial proceedings alone.
The first series of lawsuits in the MDL addressed the claims of municipal water suppliers whose utilities had been contaminated from AFFF runoff. In June 2023, 3M and DuPont de Nemours settled the litigation through $10.3 and $1.18 billion settlements, respectively. Although cities and states have filed objections to the payout figures, the court appears poised to finalize the agreements in upcoming fairness hearings.
Common Damages in AFFF Firefighting Foam Lawsuits
The illnesses linked to AFFF are numerous, severe, and may prove lethal. Although Kevin Hardwick did not report current or potential health complications connected to the PFAS levels in his bloodstream, he still runs the risk of developing a litany of life-threatening diseases.
Alongside stratospheric medical costs, the treatment of these conditions can result in serious strains on an individual’s emotional and mental wellbeing. Fortunately, filing an AFFF firefighting foam lawsuit enables the victims of 3M and DuPont’s wrongdoing to seek compensation in the form of economic and non-economic damages addressing:
- Medical expenses – past, present, and future
- Lost wages or income
- Out-of-pocket costs
- Pain and suffering
- Mental anguish
- Loss of consortium
- Wrongful death
Numerous online services claim to provide quick and immediate compensation estimates. However, they fail to account for the unique circumstances of an individual’s claim or perform complex calculations for non-economic damages. The best way in which to learn how much your AFFF lawsuit is worth is to speak with a qualified firefighting foam lawyer today.
Contact an Experienced Firefighting Foam Cancer Lawyer Today
The Ohio circuit court’s ruling granted temporary relief to 3M and DuPont de Nemours, but it did not constitute an exoneration or acquittal. As the companies contend with mounting state and federal firefighting foam cancer lawsuits, we are on standby to offer advice and counsel to eligible plaintiffs.
In a free consultation, our experienced AFFF firefighting foam lawyers can explain your rights, determine the eligibility of your claim, and calculate the compensation to which you may be entitled. With extensive experience in managing the intricacies of enrolling and participating in MDLs, we have a proven track record of client success and a steadfast commitment to holding massive petrochemical companies accountable for their endangerment of consumers.
For more information, contact us today.