Manufacturers secure victory in latest legal action over PFAs

In the latest instalment of one of the most important issues for the global casualty (re)insurance market (which has been labelled the next asbestos by many), a US appeals court has ruled in favour of manufacturers.

The court found in favour of 3M, Corteva Inc subsidiary E.I. du Pont de Nemours and Co and other manufacturers of toxic so-called ‘forever chemicals’ against legal liability for the substances, rejecting a lower court’s ruling that would have allowed about 11.8 million Ohio residents to sue the companies as a group.

The Cincinnati, Ohio-based 6th US Circuit Court of Appeals vacated a lower court’s approval of the massive class action. 

The court found lead plaintiff Kevin Hardwick filed too broad a complaint against the manufacturers, and had not shown per- and polyfluoroalkyl substances, or PFAS, found in his body could be traced directly to the defendants such as units of 3M, DuPont and others.

The court said Hardwick’s complaint “rarely” targeted the actions of any one company, and instead accused the companies collectively of contaminating the environment with the chemicals.

“Seldom is so ambitious a case filed on so slight a basis,” wrote Circuit Judge Raymond Kethledge, noting there are thousands of companies that have manufactured PFAS but just 10 listed as defendants in the case.

The appeals court instructed the lower court to dismiss Hardwick’s lawsuit, which had aimed to force the companies to pay for studies analysing the health impacts of PFAS. The chemicals are used in a wide range of consumer products including non-stick pans and clothing but have more recently been tied to a range of diseases- a contentious claim which is ongoing and has not been definitely proven.

The lawsuit also sought to establish a fund to monitor Ohio residents for health impacts from PFAS exposure.

A 3M spokesperson said the company was pleased with the decision.

Robert Bilott, an attorney for Hardwick, said the court’s decision runs “counter to what we know about the history of manufacturing of PFAS in the United States” and said they are evaluating whether to appeal.

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