HARDWICK V. 3M COMPANY - 12/18/22

LCJ is urging the US Court of Appeals for the Sixth Circuit to reverse a class certification in Hardwick v. 3M Company, an enormously significant PFAS class action pending in the US District Court for the Southern District of Ohio.  LCJ’s brief argues that the certification decision impermissibly expands substantive rights provided to class action plaintiffs, limits the substantive rights of defendants, and eviscerates the cohesiveness requirement embedded in Rule 23. If the decision is upheld, it will establish arguably the largest class in US litigation history and have important implications for litigants well beyond the current action. 

A district court may not use a procedural rule to expand or contract substantive rights due to the constraints of the Rules Enabling Act. But the court in Hardwick uses Rule 23 to provide putative class members a new substantive right via an extra-judicial remedy—a “science panel” that will discern liability in the case by studying the possible health effects of exposure to per- and polyfluroalkyl substances (“PFAS”)—to which no individual plaintiff would be entitled if the claims were brought in individual actions.  

LCJ also points out that the decision deprives defendants of their ability to assert individualized defenses to each class member’s unique claims, including causation.   The district court’s class certification order provides “no avenue for defendants to assert challenges to individual class members’ claims.  Indeed, the district court’s certification order does not address the looming question whether each [d]efendant caused an individual class member’s injury at all.”

The amicus brief, available here, was written by Barbara Smith, Samuel Hofmeier, and Andrea Butler of Bryan Cave Leighton Paisner LLP on December 28, 2022.