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'Forever chemicals' ruling provides legal victory for 3M, Dupont

3M (MMM), DuPont (DD), and eight other "forever chemicals" manufacturers got a legal victory Monday when an Ohio court of appeals struck down an attempt by a former firefighter to bring a class-action lawsuit on behalf of nearly 12 million Ohio residents.

It is a triumph for 3M and Dupont as they defend against thousands of cases alleging that PFAS chemicals, or per- and polyfluoroalkyl substances, caused harm.

The companies have already agreed to pay more than $15 billion to settle claims that PFAS harmed drinking water sources, and legal experts say case numbers could still get a lot higher before it’s all over.

Maplewood, Minnesota, 3M company global headquarters.  3M produces the N95 respirator masks for the coronavirus.  (Photo by: Michael Siluk/Education Images/Universal Images Group via Getty Images)
3M headquarters in Maplewood, Minn. (Michael Siluk/Education Images/Universal Images Group via Getty Images) (Education Images via Getty Images)

Some experts predict the cost of litigation around "forever chemicals" could eclipse the largest-ever legal multi-case settlement in US history. That came in 1998 when the four largest US cigarette manufacturers, known collectively as "Big Tobacco," agreed to pay more than $206 billion to all 50 states.

"There is no doubt that PFAS claims will trump tobacco," said Scott Seaman, a partner at Hinshaw & Culbertson.

The case from Ohio residents, first filed in 2018, alleged that PFAS products produced by the companies caused harm by ending up in at least trace amounts in the bloodstreams of nearly every American.

The substances are dubbed "forever chemicals" for their inability or near inability to decompose and have been used for decades to fortify products from cookware to fabrics.

The chemicals became so ubiquitous during their peak use that trace amounts can now be found not only in humans but also in marine and land animals.

Had the case gone forward the plaintiff class would have included nearly 12 million claimants, representing all of the residents of Ohio. A class of that size risked setting precedent for courts across the country.

However a three-judge panel for the Sixth Circuit Court of Appeals vacated a district court’s certification of the group, reasoning that the lead plaintiff, former firefighter Kevin Hardwick, didn’t have grounds to sue because he didn’t know which companies manufactured the particular chemicals in his bloodstream.

“[O]f 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,” US appellate court Judge Raymond Kethledge wrote in the count’s decision.

The panel went on to say that the case could not go forward because Hardwick additionally failed to show he suffered current or looming illness tied to the chemicals.

The appellate court’s ruling represents a victory for the defendants, Seaman said, though he expects it will also help the plaintiffs hone their case.

"Whatever you want to say about it, it would have been disastrous for defendants and bad law if the class action were allowed to proceed based on these allegations. But this is going to be a long-term war," Seaman said.

In a post on LinkedIn Seaman added that PFAS plaintiffs face significant challenges, including linking their alleged injuries to particular chemicals and particular defendants.

PFAS Contamination in the U.S.
PFAS Contamination in the US. (Environmental Working Group)

Thousands of plaintiffs from individuals to municipalities and states have already alleged these chemicals associated with cancers and other serious medical conditions contaminated air, water, and soil across the globe.

As of August 2022, more than 6,400 cases alleging harm caused by PFAS had been filed in federal court. A majority of cases targeted Teflon manufacturer DuPont, though 3M has since emerged as a primary target. Other defendants like grocery chain Kroger (KR) and sportswear cooperative REI also are caught up in the litigation.

One early sign of costs to come for major PFAS targets like 3M became evident in September when a federal judge in South Carolina tentatively approved the company’s $12.5 billion settlement to put to bed claims consolidated into a multidistrict litigation from 19 public water suppliers and 22 states.

The multi-case agreement resolves claims concerning a fire-repelling PFAS called aqueous film forming foam, or AFFF, that polluted public drinking water sources. In 2018, 3M also reached an $850 million settlement with Minnesota’s attorney general over PFAS groundwater contamination.

Separately, a series of bellwether trials that are meant to test how juries will react to personal injury and other PFAS claims, and the evidence to support them, are set to move forward starting in 2024.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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