By Shannon Kelleher
A federal appeals court should grant a rehearing in a class action lawsuit filed against the makers of toxic PFAS chemicals 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 last month’s ruling by the Cincinnati, Ohio-based 6th US 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 Monday, 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 that these toxins did not exist before Defendants created them,” the Hardwick petition states. The defendants additionally have been identified by the US EPA as “known makers” of PFOA, according to the petition for rehearing.