REPLY IN SUPPORT OF DEFENDANTS’JOINT MOTION TO DISMISS
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO - EASTERN DIVISION
KEVIN D. HARDWICK,
Plaintiff,
v.
3M COMPANY; E.I. DU PONT DE NEMOURS AND COMPANY; THE CHEMOURS COMPANY; ARCHROMA MANAGEMENT LLC; ARKEMA, INC.; ARKEMA FRANCE, S.A.; AGC CHEMICALS AMERICAS, INC.; DAIKIN INDUSTRIES LTD.; DAIKIN AMERICA, INC.; SOLVAY SPECIALTY POLYMERS, USA, LLC,
Defendants.
Civil Action №2:18-cv-01185
Chief Judge Edmund A. Sargus, Jr.
Chief Magistrate Judge Elizabeth A. Preston Deavers
Oral Argument Requested
TABLE OF CONTENTS AND SUMMARY Page -INTRODUCTION ……………………………………………………………. 1 ARGUMENT…………………………………………………………… …… 2
I. THIS COURT LACKS SUBJECT-MATTER JURISDICTION OVER THIS CASE ………………………………………………………………………… 2
A. Injury in fact ………………………………………………………………. 3
- The presence of unspecified PFAS is not by itself injury in fact……… 4 Hardwick cites not a single Article III case holding that the unwanted presence of a substance, by itself, constitutes injury in fact. And for good reason: All of the authority goes the other way, holding that when a “[p]laintiff does not allege that he himself suffered any adverse health consequences” from the unwanted substance, the presence of the substance in the body — even if alleged to be dangerous or “unhealthy . . . in any amount” — does not count as injury in fact. E.g., Young v. Johnson & Johnson, 2012 WL 1372286, at *3 (D.N.J. Apr. 19, 2012).
- 2. Hardwick’s fear of harm from PFAS does not establish injury in fact………………………………………………………………………….. 7
- The unspecified risk of future harm from PFAS is not injury in fact, either. Hardwick’s alleged injury is not “certainly impending,” as it must be to suffice. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). Hardwick instead sues to find out if he ever will be harmed — but neither fear nor curiosity in the absence of disease or disease symptoms constitutes injury in fact.
- B. Traceability. …………………………………………………………….. 7
- Hardwick’s complaint does not allege that the Defendants are the exclusive source of his challenged exposures; Hardwick’s opposition brief notwithstanding, the complaint not only does not but could not make such an allegation, as it identifies other sources of his exposure. Nor does Hardwick allege that any particular Defendant did any particular thing to cause his purported injury. He thus fails the traceability requirement twice over. See United States v. Carroll, 667 F.3d 742, 745 (6th Cir. 2012).
- C. Redressability…………………………………………………………… 9
- Hardwick claims that the science panel will do two things: (i) redress his “fear of the unknown” and (ii) “begin to redress” the presence of PFAS in him. The first argument fails because “fear of the unknown” is not a cognizable Article III injury. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 106–07 (1998). The second argument fails both because it is entirely “speculative” what the science panel would actually find, and because beginning to redress an injury is not enough under Article III. Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 43–44 (1976).
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TABLE OF CONTENTS AND SUMMARY
II. HARDWICK DOES NOT PLEAD A COGNIZABLE INJURY UNDER OHIO LAW …………………………………………………………………………….. 12
Hardwick’s alleged injuries — the asymptomatic presence of PFAS in his body and an unspecified risk of future disease — are not cognizable injuries under Ohio law, wholly apart from Article III. Courts applying Ohio law have rejected tort claims resting on the same kind of alleged injuries. See, e.g., Ackison v. Anchor Packing Co., 897 N.E.2d 1118, 1124–26 (Ohio 2008). Hardwick tellingly does not cite a single case allowing a plaintiff to pursue such tort claims under Ohio law.
III. THIS COURT LACKS AUTHORITY TO AWARD THE REQUESTED RELIEF………………………………………………………………………… 15
A. Hardwick requests legally unavailable relief ..…………………………. 15
Hardwick admits that his requested relief is “unheard of” in a contested federal-court lawsuit, Opp. 21, which means this Court must dismiss the complaint under binding Supreme Court precedent that Hardwick does not even mention. E.g., Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318–22 (1999).
B. The relief Hardwick requests also violates the Seventh Amendment, Article III, and due process…………………………………………………………. 17
Even if this Court had the authority to order Hardwick’s requested relief, it could not do so in this lawsuit for three other reasons. First, it would violate the Seventh Amendment — which preserves the jury right in “Suits at common law,” like Hardwick’s common-law tort lawsuit. The jury right cannot, as Hardwick thinks, “be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of the legal action.” Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510 (1959).
Second, allowing a science panel to make “definitive and binding” findings on causation, as Hardwick requests, Compl. ¶ 141, unconstitutionally delegates the “judicial Power” to an “entit[y] outside Article III,” Stern v. Marshall, 564 U.S. 462, 484 (2011). Hardwick’s attempt to transform his as-pleaded “binding” relief into as-argued “recommended” relief fails because a plaintiff cannot amend a complaint in an opposition brief and because that amendment in any event would serve only to defeat redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 574 (1992).
Third, and at all events, the unconstrained and unpredictable way the science panel would decide the issues would violate Defendants’ and absent class members’ due-process rights.
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TABLE OF CONTENTS AND SUMMARY Page
IV. THE COMPLAINT FAILS TO STATE A CLAIM UNDER TWOMBLY AND IQBAL ………………………………………………………………………….. 21
A. The complaint does not plead the specific conduct of specific Defendants that allegedly caused the purported injuries……………………………… 21
Hardwick’s complaint “fails to allege sufficient factual allegations to support any claims,” especially because it leaves Defendants “with no notice of . . . [the] factual circumstances giving rise to any claims.” Hill v. Ohio State Univ. T & L, 2013 WL 2295881, at *3 (S.D. Ohio May 24, 2013). Hardwick cannot amend his complaint via opposition brief and in any event never adds the necessary facts (as opposed to conclusory verbs) that identify the offending conduct of any particular Defendant or that explain how that conduct caused Hardwick’s purported injuries.
B. Neither market-share nor alternative liability saves the complaint. …. 24
Hardwick cannot overcome his failure to plead causation by asserting market-share liability and alternative liability. Ohio has rejected market-share liability. See, e.g., Sutowski v. Eli Lilly & Co., 696 N.E.2d 187, 190 (Ohio 1998). Alternative liability does not apply because Hardwick has not sued all potentially responsible entities. Burke v. Schaffner, 683 N.E.2d 861, 866–67 (Ohio Ct. App. 1996). And neither liability theory is otherwise suited for this case.
C. Hardwick has not plausibly alleged civil-conspiracy or declaratory-relief claims. ………………………………………………………………………… 26
The conspiracy claim fails whether it is based on the fraud allegations (as in the complaint) or on the deficient battery allegations (as Hardwick says in his opposition). And Hardwick disclaims seeking declaratory relief independent of his other failed claims, so this claim too must be dismissed.
V. THE OHIO PRODUCT LIABILITY ACT ABROGATES HARDWICK’S CLAIMS ……………………………………………………………………….. 27
Hardwick cannot artfully plead around the abrogation provision of the Ohio Product Liability Act by pointing to an illusory disclaimer of compensatory damages. Hardwick’s complaint and opposition brief both acknowledge that a purpose of this suit is to establish Hardwick’s entitlement to monetary damages. And Hardwick demands that Defendants pay the costs of the science panel he requests. Both types of relief qualify as compensatory damages, consistent with the language and purpose of the abrogation provision. Edwards v. WarnerLambert, 2011 WL 5914008, at *4 (S.D. Ohio Nov. 28, 2011); Mitchell v. Proctor & Gamble, 2010 WL 728222, at *2, 5 (S.D. Ohio Mar. 1, 2010).
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TABLE OF CONTENTS AND SUMMARY
VI. THIS COURT LACKS PERSONAL JURISDICTION ………………….. 30
A. This Court lacks personal jurisdiction for Hardwick’s individual claims. ………. 30 For the reasons explained in Defendants’ separately filed personal-jurisdiction reply briefs, this Court lacks jurisdiction over “each defendant individually.” Zobel v. Contech Enters., 170 F. Supp. 3d 1041, 1044 (S.D. Ohio 2016) (Sargus, C.J.).
B. This Court lacks personal jurisdiction for Hardwick’s class claims……… 30
The complaint pleads no facts connecting the claims of any absent class member to conduct by any of the Defendants in Ohio. And, contrary to Hardwick’s arguments, the Due Process Clause and the Rules Enabling Act require that the principles adopted in Bristol-Myers be applied to class actions, see Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1781 (2017). Mussat v. IQVIA, Inc., 2018 WL 5311903, *5–6 (N.D. Ill. Oct. 26, 2018).
C. This Court should deny Hardwick leave to amend………………………35
Hardwick’s belated request to amend his complaint does not “provide details concerning the proposed amendments,” and should be denied. Ayer v. Community Mercy Health Partners, 2019 WL 1902520, at *5 (S.D. Ohio Apr. 29, 2019). So long as Hardwick continues to allege no illness, continues to fail to describe the type and amount of PFAS in him, continues to ask for a court-ordered science panel as relief, and continues to bring abrogated product-liability claims, the amendment would be futile.
CONCLUSION…………………………………………………………………. 36
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TABLE OF AUTHORITIES
CASES
Ackison v. Anchor Packing Co., 897 N.E.2d 1118 (Ohio 2008)……..13, 14
Alexander v. Eagle Mfg. Co., LLC, 714 F. App’x 504 (6th Cir. 2017) ……..35
Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536 (6th Cir. 2004) …………………………………………………………………..9
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)…………………….32
Ashcroft v. Iqbal, 556 U.S. 662 (2009)…………………………..21, 22, 23, 24
Ayer v. Community Mercy Health Partners, 2019 WL 1902520 (S.D. Ohio Apr. 29, 2019) ………………………………………………………………35
Baker v. Saint-Gobain, 232 F. Supp. 3d 233 (N.D.N.Y. 2017)……………6
Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959)………………………………………………………………………………..18
Bickerstaff v. Lucarelli, 830 F.3d 388 (6th Cir. 2016) …………………………………………………………………………22
Bouchard v. Am. Home Prods. Corp., 213 F. Supp. 2d 802 (N.D. Ohio 2002)……………………………………………………………………………13, 14
Bourke v. Carnahan, 840 N.E.2d 1101 (Ohio Ct. App. 2005)……………12, 13
Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017)…………………………………………………………………………….. passim
Brockman v. Chevron USA, Inc., 2010 WL 11538073 (S.D. Ohio Aug. 11, 2010)………………………………………………………………………….23
v.
Brown v. Plata, 563 U.S. 493 (2011)……………………………………..16
Buck v. Thomas M. Cooley Law Sch., 597 F.3d 812 (6th Cir. 2010) …………………………………………………………………………..8
Burke v. Schaffner, 683 N.E.2d 861 (Ohio Ct. App. 1996)……………….25
City of Los Angeles v. Lyons, 461 U.S. 95 (1983)……………………………7
City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999)…………………………………………………………………………………..18
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013)……………………………………………………………………………7, 9, 11
Combs v. Int’l Ins. Co., 354 F.3d 568 (6th Cir. 2004) ……………………………………………………………………………25
Crawford v. United States Dep’t of Treasury, 868 F.3d 438 (6th Cir. 2017) ……………………………………………………………………………..7
Delawder v. Platinum Fin. Services Corp., 443 F. Supp. 2d 942 (S.D. Ohio 2005) ……………………………………………………………………………..8
DeNoma v. Kasich, 2017 WL 6987677 (6th Cir. Oct. 16, 2017)……………..23
Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980)…………………………………………………………………………………..32
Edwards v. Warner-Lambert, 2011 WL 5914008 (S.D. Ohio Nov. 28, 2011)……………………………………………………………………………………29
Gawry v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 942 (N.D. Ohio 2009)…………………………………………………………………….………30
Glassner v. R.J. Reynolds Tobacco Co., 1999 WL 33591006 (N.D. Ohio June 29, 1999)…………………………………………………………………..…….27
Goldman v. Johns-Manville Sales Corp., 514 N.E.2d 691 (Ohio 1987)………………………………………………………………………..….24, 25, 26
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Gosden v. Louis, 687 N.E.2d 481 (Ohio Ct. App. 1996)……….…………….27
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989)……………………….18
Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999)…………………………………………………………………..15, 16, 17
Harvey v. Great Seneca Fin. Corp., 453 F.3d 324 (6th Cir. 2006) ……………………………………………………………………………21
Herrington v. Johnson & Johnson Consumer Cos., Inc., 2010 WL 3448531 (N.D. Cal. Sept. 1, 2010) …………………………………………….………….4
Hicks v. Colvin, 214 F. Supp. 3d 627 (E.D. Ky. 2016) ………………………..20
Hill v. Ohio State Univ. T & L, 2013 WL 2295881 (S.D. Ohio May 24, 2013) ……………………………………………………..…………………21, 22
Hirsch v. CSX Transp., Inc., 656 F.3d 359 (6th Cir. 2011) ……………………………………………………………………………14
Huff v. Telecheck Servs., Inc., 2019 WL 1967707 (6th Cir. May 3, 2019)…………………………………………………………………………….…….4, 6
In re Aqueous Film-Forming Foams Prods. Liab. Litig., №2:18-mn-2873 (D.S.C.) ………………………………………………………………………….8
In re Dicamba Herbicides Litig., 359 F. Supp. 3d 711 (E.D. Mo. 2019)………………………………………………………………………………..31, 34
In re Fruit Juice Prod. Mktg. & Sales Practices Litig., 831 F. Supp. 2d 507 (D. Mass. 2011)……………………………………………………………………4, 5
In re MTBE Prod. Liab. Litig., 2007 WL 700819 (S.D.N.Y. Mar. 7, 2007)……………………………………………………………………………..28, 29
In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995) ……………29
In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896 (6th Cir. 2009) ………………………………………………………………………23, 27
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InBev USA LLC v. Hill Distrib. Co., 2006 WL 6924045 (S.D. Ohio Apr. 3, 2006) …………………………………………………………………………..29
Interstate Commerce Comm’n v. Louisville & Nashville R.R. Co., 227 U.S. 88 (1913)….……………………………………………………………………….20
Kardules v. City of Columbus, 95 F.3d 1335 (6th Cir. 1996) ………………10
Kiker v. Smithkline Beecham Corp., 2015 WL 5768389 (S.D. Ohio Sept. 30, 2015) …………………………………………………………………………...35
Kiser v. Reitz, 765 F.3d 601 (6th Cir. 2014)…………………………………13
Koronthaly v. L’Oreal USA, Inc., 374 F. App’x 257 (3d Cir. 2010) …….….4, 5
Lamps Plus, Inc. v. Varela, __ S. Ct. __, 2019 WL 1780275 (Apr. 24, 2019)..21
Leppert v. Champion Petfoods USA Inc., 2019 WL 216616 (N.D. Ill. Jan. 16, 2019)……………………………………………………………………………34
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)……………………..11, 19
Maclin v. Reliable Reports of Tex., Inc., 314 F. Supp. 3d 845 (N.D. Ohio 2018)……………………………………………………………………………………31
Madej v. Maiden, 2018 WL 5045768 (S.D. Ohio Oct. 17, 2018)………….12
Marcum v. Jones, 2006 WL 543714 (S.D. Ohio Mar. 3, 2006)………………23
Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996)……………..18
Mitchell v. Proctor & Gamble, 2010 WL 728222 (S.D. Ohio Mar. 1, 2010)…………………………………………………………………………………….30
Molock v. Whole Foods Market, Inc., 297 F. Supp. 3d 114 (D.D.C. 2018…...31
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F.3d 1223 (10th Cir. 2006) ……………………………………………….…..28
O’Shea v. Littleton, 414 U.S. 488 (1974)……………………………………….8
Orser v. City of Perrysburg, 2017 WL 3017051 (Ohio Ct. App. July 14, 2017) ………………………………………………………………………12, 13
Park v. Shiflett, 250 F.3d 843 (4th Cir. 2001) ………………………………29
Parsons v. Bedford, 28 U.S. 433 (1830)…………………………………….18
Parsons v. U.S. Dep’t of Justice, 801 F.3d 701 (6th Cir. 2015) ……………10
Patterson v. Novartis Pharm. Corp., 451 F. App’x 495 (2011) ……………22
Rainer v. Union Carbide Corp., 402 F.3d 608 (6th Cir. 2005) …………..5, 13
Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88 (4th Cir. 2011)…..13
Roese v. Battelle Mem’l Inst., 1991 WL 10923 (Ohio Ct. App. Jan. 31, 1991)……………………………………………………………………………..13, 14
Segal v. Fifth Third Bank, N.A., 581 F.3d 305 (6th Cir. 2009) ……………30
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010)…………………………………………………………………………………..32
Siders v. Reynoldsburg Sch. Dist., 650 N.E.2d 150 (Ohio Ct. App. 1994)….29
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Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26 (1976).………….10
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)……………………….4, 5, 6
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)………9,10, 19, 20
Stern v. Marshall, 564 U.S. 462 (2011)……………………………………..19
Sutowski v. Eli Lilly & Co., 696 N.E.2d 187 (Ohio 1998)……………..24, 25
Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478 (6th Cir. 2009) ……………………………………………………………………………16
Tull v. United States, 481 U.S. 412 (1987)………………………………..17, 18
United States v. Carroll, 667 F.3d 742 (6th Cir. 2012) …………………….8, 9
United States v. Sanchez-Gomez, 138 S. Ct. 1532 (2018)………………….31
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)………………………..32
Walden v. Fiore, 571 U.S. 277 (1984)……………………………………..33, 34
Warth v. Seldin, 422 U.S. 490 (1975)……………………………………..10, 11
White v. United States, 601 F.3d 545 (6th Cir. 2010) …………………….7, 8
Wuliger v. Manufacturers Life Ins. Co., 567 F.3d 787 (6th Cir. 2009).……..9
Young v. Johnson & Johnson, 2012 WL 1372286 (D.N.J. Apr. 19, 2012)………………………………………………………………………………….4, 5
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Zobel v. Contech Enters., 170 F. Supp. 3d 1041 (S.D. Ohio 2016) ……….30
STATUTES
28 U.S.C. § 2072…………………………………………………………….32 28
U.S.C. § 2072(b)………………………………………………………………..32
Ohio Rev. Code § 2307.71(A)(13) ……………………………………………27
Ohio Revised Code § 2307.73(C)………….……………………………..24, 27
OTHER AUTHORITIES
American Heritage Dictionary 32 (4th ed. 2001) ………………..…………..22
Federal Rule of Civil Procedure 23 ……………………………….…..31, 32, 33 Restatement (Second) of Torts….………………………………………………6
U.S. Constitution, Amendment VII…….………………………………… passim
U.S. Constitution, Article III…………………………………………….. passim
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INTRODUCTION
Mr. Hardwick, who alleges no illness, has brought suit in this judicial forum over a quintessentially legislative or regulatory issue. He does not allege that he knows his exposure to PFAS will cause him illness, or that it will cause illness to any of the 320 million Americans allegedly in various degrees exposed. To the absolute contrary, he emphasizes in his opposition (“Opp.”) that the effects of PFAS are “unknown,” and that he brings this suit to allay his “fear” of that “unknown.” Opp. 14, 17. To do so, Hardwick requests a remedy unprecedented in the history of Anglo-American jurisprudence: an order forcing Defendants to fund a science panel whose work, unbounded in scope or by due-process safeguards, would determine in binding fashion “whether a causal connection exists” between any of the thousands of types of PFAS and human disease. Opp. 14.
In short, Hardwick seeks a non-judicial solution (a science panel in place of a judge or jury) to a non-justiciable problem (fear of the unknown) through a suit based on deficient allegations against parties over which the Court has no jurisdiction.
It is no wonder, therefore, that controlling precedent requires dismissal of this suit on so many grounds. Indeed, Hardwick is not even able to advance a consistent argument to support the suit’s maintenance. Where, on page 14 of his opposition, Hardwick (to support the redressability prong of standing) argues that the science panel’s conclusions would be “‘definitive and binding on all parties,’” on page 23, Hardwick (to avoid other Article III and due-process arguments) argues that the science panel’s decisions would be only advisory. And where, in arguing the injury prong of standing, Hardwick argues that the negative health consequences of PFAS are “known” (Opp. 2, see also id. at 5–9), on the redressability prong, Hardwick argues that those health effects are “unknown.” Opp. 14–17. One’s head spins; it is a brief of antonyms.
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The opposition is also bereft of case law supporting Hardwick’s arguments. It does not cite a single case that has ever created a science panel for a remedy in a contested proceeding; or one that has ever found fear of the unknown to be an injury under Article III; or one that has ever found the asymptomatic presence of assertedly toxic substances to support a claim under Ohio law; or one that has ever found “and/or” to mean “and” to the exclusion of “or”; or, for that matter, one that supports market-share liability in Ohio, injunctive relief against purported negligence for past acts, or any of Hardwick’s other arguments. Every aspect of this lawsuit is an invention in contravention of settled law.
These problems cannot be obscured by hyperbolic analogies or ad hominem attacks. It is baseless, for example, to argue, as Hardwick does, that Defendants claim that “if you hurt everyone . . . the Constitution prevents anyone from suing you.” Opp. 1. Anyone who seeks damages that would redress a disease or other palpable injury, or who seeks an injunction to stop a certainly impending future harm, has standing. No one disputes that. The question is whether this plaintiff, who is well, can sue these defendants, whose products he does not allege to have come in contact with, for this relief, which he admits is “unheard of” (Opp. 21), in this Court, which lacks jurisdiction. For all the reasons set out in our moving papers and below, this case should be dismissed.
ARGUMENT
I. THIS COURT LACKS SUBJECT-MATTER JURISDICTION OVER THIS CASE
Three defects permeate Hardwick’s discussion of standing. First, Hardwick’s arguments for injury and redressability are not only independently flawed, but they are also inconsistent and irreconcilable. For injury, Hardwick suggests, largely through the extravagant metaphor of a bomb strapped to his chest, that he already has a proven injury bound to lead to illness. But if there really were a proverbial ticking time bomb strapped to
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him, a science panel would not redress the injury as it would only study the “bomb,” not remove it. For redressability, Hardwick takes the opposite tack. Abjuring any assertion of certain illness, he admits that the purpose of the panel is to “resolve his fears about the unknown effects of having PFAS in his blood,” Opp. 17, a critical admission, but one offered to justify a science panel as relief. Since Hardwick must show both palpable injury and redressability, neither of Hardwick’s inconsistent approaches can demonstrate standing.
Second, when it comes to traceability, Hardwick’s opposition asserts purported facts that vary materially from the allegations of the complaint in an effort to obscure that the complaint pleads no facts about how each Defendant allegedly injured Hardwick. Yet it is axiomatic that an opposition to a motion to dismiss must stand on the allegations of the complaint, not on sub silentio amendments to the complaint.
Third, the opposition consistently relies on irrelevant state-court cases for its Article III arguments. The standing requirements of Article III, of course, do not apply to state courts.
At an irreducible minimum, a plaintiff must show all three well-known prongs — palpable injury, traceability, and redressability — in order to demonstrate standing. Hardwick shows none.
A. Injury In Fact.
Stripped of farfetched metaphors, Hardwick’s asserted injury boils down to this: (a) he has an unstated level of some type of PFAS in his blood; (b) he has concerns that some levels of some type(s) of the thousands of types of PFAS might increase the risk of certain diseases; © he is in good health and does not have any of the diseases about which he worries; and yet (d) he is fearful of getting sick and wants Defendants to fund a study to resolve his “fear of the unknown” and to “establish whether a causal connection exists between PFAS in human blood and any injury, disease, or adverse health impact or risk.” Opp. 14. That is not palpable injury
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1. The presence of unspecified PFAS is not by itself injury in fact.
Neither the presence of unspecified types and amounts of PFAS in Hardwick’s blood nor the asserted (and unspecified) risk of harm from that presence is palpable injury.
Case upon case holds that the unwanted presence of something — whether a substance in the body or an inaccuracy on a credit report — does not constitute a concrete injury unless accompanied by real, personal harm. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548–49 (2016); see also Huff v. Telecheck Servs., Inc., 2019 WL 1967707, at *7 (6th Cir. May 3, 2019). The rule is this: When a “[p]laintiff does not allege that he himself suffered any adverse health consequences” from an unwanted substance, the presence of the substance in the body — even if alleged to be dangerous or “unhealthy . . . in any amount” — does not count as injury in fact. E.g., Young v. Johnson & Johnson, 2012 WL 1372286, at *3 (D.N.J. Apr. 19, 2012). Without current adverse effects (or certainly impending future harm, discussed below), the presence alone even of substances previously found to be probable human carcinogens is “too attenuated and not sufficiently imminent to confer Article III standing.” Herrington v. Johnson & Johnson Consumer Cos., Inc., 2010 WL 3448531, at *3 (N.D. Cal. Sept. 1, 2010); see also, e.g., Koronthaly v. L’Oreal USA, Inc., 374 F. App’x 257, 259 (3d Cir. 2010) (presence of lead from lipsticks, without any current adverse health effects from the lead, does not confer Article III standing). Because Hardwick has not alleged that any specific amount of PFAS has caused actual injuries to him, his claimed injury of unwanted presence “is simply too hypothetical or conjectural to establish Article III standing.” In re Fruit Juice Prod. Mktg. & Sales Practices Litig., 831 F. Supp. 2d 507, 509– 11 (D. Mass. 2011).
Citing various studies about the supposed generalized health risks of the substances at issue, as Hardwick tries to do with the C8 Science Panel for one type of PFAS (PFOA), see, e.g., Opp. 8–9 nn.4–5, does not confer standing. See Young, 2012 WL 1372286, at *3. Because
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Hardwick “does not allege that he himself suffered any adverse health consequences,” and does not even allege that “any particular amount [of any particular type of PFAS] is dangerous” to him, these generalized studies about how one of the thousands of types of PFAS might have affected other people do not matter one bit under Article III. Id. (emphasis added); Fruit Juice, 831 F. Supp. 2d at 511.1
Nor does claiming that PFAS has altered the “structure” of his blood change this conclusion. Opp. 5. Most of the things we breathe or ingest change our chemistry, sometimes inalterably. If alleged changes (no matter how small) to our blood chemistry, by themselves, conferred standing, then all of the cases cited above (and many more) would have come out differently. Adding lead to your body certainly changes your body’s internal makeup. See Koronthaly, 374 F. App’x at 259. So does ingesting partially hydrogenated oils. See Young, 2012 WL 1372286, at *3. For that matter, UV radiation (whether from a tanning bed or the sun), fried foods, stress, fumes from a passing automobile, and countless other substances all alter one’s blood or body in some way. See Joint Motion to Dismiss (“Mot.”) 8; cf., e.g., Rainer v. Union Carbide Corp., 402 F.3d 608, 619 (6th Cir. 2005). In all of these cases (and analogies), stating the chemistry of the substance and arguing that it changes a body’s makeup is insufficient to satisfy
Article III.
Hardwick has not marshalled a single Article III case to support his assertion that an “unwanted presence” is injury in fact. He cites Spokeo for the general standard, but Spokeo’s holding is anathema to Hardwick’s position. And his citation of four state-court decisions that
1 Indeed, the C8 Science Panel made no causal determinations capable of conferring Article III standing on anyone, far less someone who does not even allege any amount of PFOA in him. There is thus no scenario in which facially inapplicable findings made by a science panel established by a privately negotiated settlement agreement using terms that were stated in neither medical- nor legal-causation standards could possibly confer standing on Hardwick.
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purportedly determined what is “sufficient[] [to] plead an injury” under state statutes or common law, Opp. 6, is irrelevant here. Article III, which creates the federal judiciary and both creates and limits its jurisdiction, does not apply to the States.2
Hardwick’s only federal case, Baker v. Saint-Gobain, 232 F. Supp. 3d 233, 252 (N.D.N.Y. 2017) (appeal pending, №17–3941 (2d Cir.)), is inapposite as well. Baker does not address standing, nor would one expect it to. The plaintiffs in Baker specifically alleged (among other things) that the concentration of PFAS on their property had lowered the value of their property, a kind of injury allegation capable of pleading standing. And the portions of Baker on which Hardwick relies have nothing to do with the Article III injury requirement but instead merely decline to dismiss medical-monitoring relief that the defendants argued was unavailable under New York law because the plaintiffs did not allege present physical injuries. 232 F. Supp. 2d at 249–50. Even on that state-law question, moreover, the Baker court acknowledged uncertainty and certified the issue for interlocutory appeal. Id. at 255–56. The answer to the question of New York law raised in Baker does not affect whether Hardwick has Article III standing to assert the claims in this case. Hardwick thus has not cited a single case supporting his Article III injury arguments.
What’s more, even if presence alone counted as injury in fact in some circumstances, it would not count as injury in fact to support the prospective relief Hardwick requests. In Hardwick’s words, the condition of which he complains “has already occurred.” Opp. 6. But to obtain the exclusively forward-looking relief he requests, his injury must be one that can be cured
2 Hardwick’s reference to the Restatement (Second) of Torts is inapposite for similar reasons. General principles of state tort law do not control the Article III determination whether a plaintiff has suffered an injury that is “concrete and particularized . . . , not conjectural or hypothetical.” Spokeo, 136 S. Ct. at 1548. As the Sixth Circuit put it ten days ago, establishing a “cause of action” still “leaves a different question:” Is that “violation” an “Article III injury when it comes to [the plaintiff]?” Huff, 2019 WL 1967707, at *3. For Hardwick, it is not
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by an injunction. Hardwick’s is not. A “[p]ast injury” — i.e., an injury that “has already occurred” (Opp. 6) — is “inadequate to constitute an injury in fact when the plaintiff seeks injunctive relief but not does suffer ‘any continuing, present adverse effects,’” which Hardwick does not allege. Crawford v. United States Dep’t of Treasury, 868 F.3d 438, 455 (6th Cir. 2017) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). So even if this were an injury in fact for retroactive relief, it is not an injury in fact for prospective relief, the only kind Hardwick requests. See Lyons, 461 U.S. at 102–05.
2. Hardwick’s fear of harm from PFAS does not establish injury in fact.
Hardwick’s only other claimed injury is an unspecified risk of harm from the presence of PFAS. Opp. 8–9. But all he has are “allegations of possible future injury,” which are not sufficient. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). The harm must instead be “certainly impending.” Id. Not even an “objectively reasonable likelihood” of a potential future injury provides a plaintiff standing to sue. Id. at 410–14; see also Mot. 8–10. Certainty is the standard; Hardwick, however, sues to have his fear of the “unknown” resolved, Opp. 14, 17, not to have a certainty removed. Indeed, Hardwick’s admission that he seeks to resolve an “unknown” means that he has not pleaded even an objectively reasonable likelihood of future injury: No one injured in fact would sue to find out if he is in fact injured.
B. Traceability.
Hardwick acknowledges that he must allege an injury “fairly traceable to the Defendants’ conduct rather than the conduct of a third party not before the court.” Opp. 10; see White v. United States, 601 F.3d 545, 552 (6th Cir. 2010). He has not done so. He does not and cannot allege that the Defendants are the exclusive source of his challenged exposures. Nor does he allege that any particular Defendant did any particular thing to cause the purported injury
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First, as to exclusivity: Hardwick does not contest that there are hundreds of potential tortfeasors who did one or more of the ten things he alleges Defendants did here — everything from “manufactur[ing]” PFAS, to “train[ing] users on” the substances, to “otherwise hand[ling]” or “us[ing]” them. Compl. ¶ 37. From Hardwick’s own complaint, we know that there are many unnamed actors that engaged in that and related conduct. See, e.g., Compl. ¶¶ 53, 133. And from public records in other cases, most notably from the ongoing MDL directed at the limited subset of PFAS used in firefighting foam, we know that potentially thousands of additional third parties had some connection with PFAS. See In re Aqueous Film-Forming Foams Prods. Liab. Litig., №2:18-mn-2873 (D.S.C.); see also, e.g., Buck v. Thomas M. Cooley Law Sch., 597 F.3d 812, 816 (6th Cir. 2010); Delawder v. Platinum Fin. Services Corp., 443 F. Supp. 2d 942, 945 (S.D. Ohio 2005). As Hardwick’s lead counsel well knows from his role as Advisory Counsel to the Plaintiffs’ Executive Committee in that MDL, these other potential defendants include firefighting foam manufacturers and numerous government entities (including the United States and various airport operators). And they include Hardwick’s employers (which certainly supplied firefighting foams and equipment and trained him on how to use them).
Hardwick thus cannot truthfully say that his alleged injuries were caused “only” by the Defendants named in this lawsuit. White, 601 F.3d at 552. Hardwick’s response never confronts this point, arguing only in conclusory fashion that “Defendants are responsible for PFAS entering his and the other putative class members’ blood.” Opp. 12. That does not suffice. Because he never excludes the “independent role of third-party actors” as contributing to his purported injury, he fails the traceability requirement. United States v. Carroll, 667 F.3d 742, 745 (6th Cir. 2012).3
3 Hardwick cannot clear the standing hurdle by alleging that one of the Defendants caused PFAS to enter the blood of some other unnamed class member. For purposes of the standing inquiry, the Court must determine whether Hardwick — and not some absent class member — has standing. O’Shea v. Littleton, 414 U.S. 488, 494 (1974).
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Second, as to the conduct of particular Defendants: Hardwick does not allege that any particular Defendant did anything in particular to cause his purported injury. Mot. 11; see infra, Section IV.A. The complaint even acknowledges that Hardwick is unsure “which particular Defendant” caused his purported injury. Compl. ¶ 105. Relying on a string cite of three traceability cases, Hardwick nonetheless argues that a plaintiff may “demonstrate standing without alleging that a particular Defendant caused a particular [injury]” in a particular way. Opp. 11. His cases do not stand for that proposition. In all of them, the plaintiff asserted an injury traceable to a particular defendant’s act of doing a particular thing by alleging with facts, and not just conclusory verbs, that the defendants’ actions injured the plaintiff in a certain way. E.g., Wuliger v. Manufacturers Life Ins. Co., 567 F.3d 787, 796 (6th Cir. 2009); Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 543 (6th Cir. 2004). Because Hardwick failed to identify, with plausible factual allegations sufficient at this stage, which “entity caus[ed] [his] injury,” his allegations fail to establish traceability. Carroll, 667 F.3d at 745
C. Redressability.
As Hardwick himself recognizes (and as numerous cases hold), a plaintiff fails to establish redressability if the requested relief would not “redress a cognizable Article III injury.” Opp. 16 (emphasis added); see, e.g., Morrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602, 611 (6th Cir. 2008). The injury section of his brief notwithstanding, the predicate of Hardwick’s redressability argument is that his “injury” is the “fear of the unknown.” Opp. 14, 16. As the Supreme Court has held, however, “fears of hypothetical future harm[s] that [are] not certainly impending” do not suffice for standing. Clapper, 568 U.S. at 416. And for that reason, the Court has uniformly turned away on redressability grounds similar claims based on similarly subjective “injuries.” See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 106–07 (1998) (collecting cases). Even though the science panel may well “make [Hardwick] happier” and give him “great comfort and joy” as well
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as “psychic satisfaction,” it will not remedy any injury cognizable under Article III — and thus violates “the very essence of the redressability requirement.” Id. at 107.
Even if Hardwick’s “injury” were instead framed as the mere presence of PFAS, it would still flunk redressability. It would be entirely “speculative whether the desired exercise of the court’s remedial powers” — i.e., establishing a science panel — would redress that claimed injury. Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 43 (1976). The panel could easily find that the specific type and level of PFAS in Hardwick’s blood does not cause any harm, which in turn would mean that Hardwick’s requested relief would not even begin to redress the presence of PFAS in his blood. Opp. 14. This claimed injury, therefore, only “might improve were the court to afford relief.” Warth v. Seldin, 422 U.S. 490, 507 (1975). And “unadorned speculation” about what might happen does “not suffice to invoke the federal judicial power.” Simon, 426 U.S. at 44 (emphasis added).
Further, even if the science panel were to find that the type and amount of PFAS in Hardwick could cause some latent illness, it would neither eliminate Hardwick’s fears nor remove PFAS from his body. As Hardwick concedes, it would (at best) only “begin to redress” the harm Hardwick alleges. Opp. 14 (emphasis added). Yet beginning to redress an injury is not enough. The “requested [relief]” must “in fact . . . result in” curing the injury, Simon, 426 U.S. at 44 (or at least in curing part of the injury, see Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 716 (6th Cir. 2015)). A plaintiff lacks standing unless he can convince the Court that, after ordering relief, “the fate of the [claimed injury] would be different.” Kardules v. City of Columbus, 95 F.3d 1335, 1355 (6th Cir. 1996). Hardwick necessarily fails this standard because he admits that the fate of his claimed injury would remain exactly the same (at least until future contingent things happen).
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Hardwick’s additional argument that the requested relief need not “directly” and “personally” benefit the plaintiff is directly contrary to clear Supreme Court holdings. Lujan v. Defenders of Wildlife, 504 U.S. 555, 574 (1992); Warth, 422 U.S. at 508. And Hardwick is wrong that his requested relief benefits him any more “directly” or “personally” than the public at large. Opp. 16–17. His argument that “not everyone” has PFAS in them — after alleging that 99% of Americans do — makes a mockery of the “public at large” phrase. Lujan, 504 U.S. at 574. And his make-weight argument that not everyone fears PFAS only reinforces that his purported injury is his subjective fear; and fear of the unknown is the antithesis of an Article III injury. Clapper, 568 U.S. at 416. In short, Hardwick seeks to use this suit to forcibly install some kind of private contractual or regulatory body to make scientific and legal judgments for the Nation, and that panel would not even redress his alleged injury.
Further tying himself in a logic knot, Hardwick makes two irreconcilable arguments on whether the science panel’s conclusions would be binding. Unless binding, the science-panel remedy does not even begin to redress any purported injury. See Lujan, 504 U.S. at 569 (A plaintiff fails redressability when “resolution” of the issue “would not [be] binding.”). Thus, in arguing redressability, Hardwick contends that the science panel’s conclusions “would be ‘definitive and binding.’” Opp. 14 (quoting Compl. ¶ 141). But in later arguing due process, Hardwick asserts the exact opposite, explaining that the panel would merely “provide the Court with advice and assistance” and that the “eventual result that may flow from the panel’s findings or recommendations would remain solely within the Court’s purview.” Opp. 23. Hardwick cannot have it both ways.
Across the board, then, Hardwick fails to allege Article III standing, and this Court should dismiss his complaint under Rule 12(b)(1).
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II. HARDWICK DOES NOT PLEAD A COGNIZABLE INJURY UNDER OHIO LAW
Hardwick’s claims also warrant dismissal because he does not plead an injury that would support any of his causes of action under Ohio law. As Defendants’ opening brief explained (at 13–15), neither the asymptomatic presence of unspecified PFAS in Hardwick’s body nor an unspecified risk of future diseases constitutes a cognizable injury under Ohio law — wholly apart from Article III. Ignoring the case law Defendants cited, Hardwick asserts that we overstated Ohio’s injury requirements and that his purported injuries satisfy those requirements. He is wrong.
Hardwick first tries to divert the Court’s attention from his deficient pleading by arguing that he need not allege a “compensable” injury. But he relies on cases that do not address the requirements for his negligence, battery, and other claims or even whether an injury must be compensable. See Orser v. City of Perrysburg, 2017 WL 3017051, at *2 (Ohio Ct. App. July 14, 2017) (no standing to assert generalized grievance regarding municipality’s failure to follow ordinance); Bourke v. Carnahan, 840 N.E.2d 1101, 1105 (Ohio Ct. App. 2005) (plaintiff with legally protected interest in attorneys’ fee award had standing to sue over efforts to thwart collection of award). Compensable injury — in the form of certain and non-speculative harm — is an element of each of Hardwick’s causes of action. See Mot. 13. And contrary to what Hardwick says, a request for equitable relief does not lessen the need to plead and prove such an injury for all of his torts. See Madej v. Maiden, 2018 WL 5045768, at *5, *14–15 (S.D. Ohio Oct. 17, 2018) (Sargus, C.J.) (denying equitable relief on battery and other claims where plaintiff did not show that petrochemical exposure “will in fact cause threatened injury”).
Even more importantly, Hardwick’s argument about the proper way to describe the required injury misses the key point. Courts applying Ohio law, including the Ohio Supreme Court, have held that purported injuries just like those pleaded by Hardwick — the asymptomatic presence of allegedly toxic substances in the plaintiff’s body and an unspecified risk of future
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disease — do not support Ohio tort claims. For instance, in Ackison v. Anchor Packing Co., 897 N.E.2d 1118, 1124–26 (Ohio 2008), the Ohio Supreme Court held that “pleural plaque” and “pleural thickening” caused by asbestos inhalation were not compensable injuries and therefore could not support a negligence claim — because no illness or impairment resulted. Likewise, in Roese v. Battelle Mem’l Inst., 1991 WL 10923, at *6 (Ohio Ct. App. Jan. 31, 1991), the Ohio Court of Appeals rejected battery and other claims based on exposure to radioactive materials that elevated the plaintiff’s white-blood-cell count but did not cause disease. And in Bouchard v. Am. Home Prods. Corp., 213 F. Supp. 2d 802, 807 (N.D. Ohio 2002), a federal district court ruled that a plaintiff who ingested an allegedly harmful pharmaceutical could not sue the manufacturer for an increased risk of developing a heart condition because “Ohio law does not permit recovery for the ‘mere possibility’ that plaintiff may develop a condition.”
These decisions jibe with many decisions from other jurisdictions, which similarly hold that the presence of an allegedly toxic substance in a plaintiff’s body, without present adverse effects, is not a cognizable tort injury. See Mot. 15. These decisions include a Fourth Circuit decision on PFAS. Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88, 95 (4th Cir. 2011). And they include a Sixth Circuit decision holding that “subcellular damage to [plaintiffs’] DNA” does not “constitute a ‘present physical injury.’” Rainer, 402 F.3d at 613, 619–22.
Tellingly, Hardwick does not cite a single decision allowing a plaintiff to pursue Ohio-law tort claims based on the kind of purported injuries alleged here. Most of the decisions he cites have nothing to do with asymptomatic exposure to allegedly toxic substances. See Orser, 2017 WL 3017051, at *2 (dispute over building demolition in historic district); Bourke, 840 N.E.2d at 1105 (Ohio RICO claim alleging effort to thwart collection of judgment); Kiser v. Reitz, 765 F.3d 601, 606 (6th Cir. 2014) (First Amendment challenge to State Dental Board restrictions on
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dvertising). And the one that addresses asymptomatic exposure merely “[a]ssum[es]” that Ohio would recognize as “injury” an increased risk of disease alone, in the course of concluding that the speculative and uncertain risks asserted by the plaintiffs would not support any such claim. Hirsch v. CSX Transp., Inc., 656 F.3d 359, 363–64 (6th Cir. 2011).
Despite the lack of supporting case law, Hardwick doggedly maintains that his purported injuries are sufficiently “concrete” to plead his claims under Ohio law. He is mistaken. Ackison and Roese refute his contention that an alleged “deleterious alteration to the structure of his blood” in the form of “the invasion, persistence, and bioaccumulation of man-made toxic chemicals in his blood” is “a present injury” under Ohio law. Opp. 19–20. Hardwick alleges no illness or impairment due to that purported “alteration” (see Compl. ¶ 4) and actually admits that he has no “outward symptoms of a disease or illness” (Opp. 5). If asymptomatic pleural thickening (Ackison) and increased white-blood-cell counts (Roese) resulting from toxic exposures are not cognizable injuries, then neither is the asymptomatic presence of PFAS in Hardwick’s blood.
Roese, Bouchard, and Hirsch likewise foreclose Hardwick’s efforts to manufacture (at 19– 20) “injuries in the form of imminent manifestations of disease and other harmful effects on his health” due to PFAS exposure. Under those decisions, a “mere possibility” of developing a condition is not a cognizable injury. Yet Hardwick’s allegations — which say nothing about the type or level of the PFAS in his blood, the levels that could cause illness or impairment, or the likelihood or timing of any illness or impairment — plead at most a “mere possibility” that Hardwick will someday develop an unspecified medical condition. Indeed, the entire thrust of the complaint is that Hardwick does not know if his alleged PFAS exposure puts him at risk. Mot. 15; see Opp. 14 (Hardwick “fears the unknown effects of having PFAS in his blood”) (emphasis added). And it cannot be inferred that disease is imminent or certain when Hardwick himself
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dmits that he has been exposed to PFAS “for more than forty years” without developing any medical condition — and says he needs a science panel to figure it all out. Compl. ¶ 4; Opp. 5 (conceding that “Hardwick has not yet manifested any outward symptoms of a disease or illness”).
As a last resort, Hardwick asks the Court to disregard the cases cited in Defendants’ opening brief because many of them addressed summary-judgment motions. But Defendants relied on those cases only for statements of the law governing cognizable injuries in Ohio at all stages of litigation. The happenstance that the cases applied that law at the summary-judgment stage is irrelevant and certainly does not save Hardwick’s claims from dismissal based on his failure to plead an injury satisfying the legal standards they articulated.
III. THIS COURT LACKS AUTHORITY TO AWARD THE REQUESTED RELIEF
This Court lacks the constitutional authority to order the only thing Hardwick currently wants: an independent science panel that would make “conclusions on causation [that] would be ‘definitive and binding on all parties.’” Opp. 14 (quoting Compl. ¶ 141). Under the holdings of the Supreme Court — in cases Hardwick does not mention — this Court is prohibited from awarding this admittedly unheard-of equitable relief because it was not “traditionally accorded by courts of equity.” Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318–19 (1999) (collecting authorities); see Opp. 21. And this relief is doubly, triply — indeed, quadruply — problematic in this case, because it also violates the Seventh Amendment, Article III, and due process. As a result, Hardwick’s claims fail as a matter of law. Mot. 15–20.
A. Hardwick requests legally unavailable relief.
The Supreme Court’s rule governing the limits on a court’s equitable authority is simple: Federal courts may not award “a type of relief that has never been available.” Grupo Mexicano, 527 U.S. at 318–22. Application of this rule is straightforward, too, given Hardwick’s concession that his requested relief is “unheard of” and that it has never been awarded by courts of equity in
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the history of Anglo-American jurisprudence. Opp. 21. Putting these together, this Court may not award Hardwick’s requested relief, see Grupo Mexicano, 527 U.S. at 322, and thus must dismiss his complaint, see Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 492 (6th Cir. 2009) (per curiam).
In response, Hardwick asks this Court to toss aside the governing rule in favor of a generalized standard: that equity is “flexib[le]” and able to adapt to help solve modern problems. Opp. 20. Hardwick is right that traditional equitable remedies can be directed at modern problems — say, when a court releases prisoners being held illegally (a traditional form of relief) to solve the “inadequacy of mental health and medical services” in prison (a modern problem). Opp. 21 (citing Brown v. Plata, 563 U.S. 493 (2011)). But this equity-is-flexible standard gives way when the plaintiff asks for a type of relief never “traditionally accorded by courts of equity,” such as an “injunction preventing the defendant from transferring assets in which no lien or equitable interest is claimed.” Grupo Mexicano, 527 U.S. at 310, 319. At that point, a federal court is powerless to award the unheard-of remedy, id. — no matter how “practical” the court thinks the relief might be, or how “unique” it views the problem at hand, Opp. 21. Otherwise, courts could use their equitable powers to transform the courts into quasi-legislative or regulatory bodies without any practical limits on their powers.
Were there any doubt, Grupo Mexicano, which considered and rejected Hardwick’s precise argument, puts it to rest. There, Justice Ginsburg in dissent further clarified the issue; she (like Hardwick) would have ruled that “the grand aims of equity” allow courts, exercising “flexible jurisdiction in equity,” to grant relief whenever “practical and efficient.” 527 U.S. at 342. The majority, however, forcefully rejected that view. Id. at 321. The Court did “not question the proposition that equity is flexible; but [held that] in the federal system, at least, that flexibility is
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confined within the broad boundaries of traditional equitable relief.” Id. at 322. The rejected position espoused here by Hardwick was, the Court held, a rule “not of flexibility but of omnipotence.” Id. And that omnipotence — here, to establish a court-ordered and binding science panel, something no court has ever mandated as relief in a contested lawsuit — is far outside the bounds of the appropriate equitable authority of a federal court.
In short: Like the unheard-of injunction in Grupo Mexicano, Hardwick’s “remedy was historically unavailable from a court of equity,” and as a result this Court has “no authority to issue” the only relief Hardwick requests. Id. at 333; see Opp. 32 (disclaiming independent declaratory relief).
B. The relief Hardwick requests also violates the Seventh Amendment, Article III, and due process.
Delegating to a science panel the task of determining whether there exists “a causal connection between [PFAS] in human blood and any injury,” Compl. ¶¶ 75, 141, violates three other constitutional precepts: the Seventh Amendment’s right to a jury, Article III’s right to a lifetenured, Senate-confirmed judge, and the Due Process Clause’s right to non-arbitrary, regulated, and predictable decision-making. Mot. 17–20.
Seventh Amendment. Twisting his arguments into ever more contorted knots, Hardwick, whose complaint is entitled “Class Action Complaint and Jury Demand,” argues that the Seventh Amendment right to trial by jury is “entirely inapplicable.” The basis, Hardwick says, is that the only relief he seeks is equitable. Opp. 22–23. Hardwick errs in his rather surprising assertion.
To begin with, the Seventh Amendment preserves the jury right in “Suits at common law” and “in those actions that are analogous to ‘Suits at common law.’” Tull v. United States, 481 U.S. 412, 417 (1987). Hardwick’s causes of action — common-law negligence, battery, and conspiracy — are not just “analogous” to common-law actions; they are common-law actions. In
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this “Suit[] at common law,” therefore, all parties are entitled to a jury. U.S. Const. amend. VII; see City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 708–09 (1999) (“The Seventh Amendment [applies] to common-law causes of action.”).
Hardwick focuses instead on his requested equitable remedy, but the jury right cannot “be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of the legal action.” Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510 (1959). The remedy instead comes into play only in circumstances not present here: in “determin[ing] whether a statutory action is more similar to cases that were tried in courts of law than to suits tried in courts of equity” in 1791, i.e., in determining whether a non-common-law cause of action comes with a jury trial. Tull, 481 U.S. at 417. That inquiry does not apply when, as here, the action is itself a common-law suit. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 376–77 (1996).
Beyond that, even if the remedy mattered here, it would be just one “factor[]” to consider as part of the ultimate inquiry whether the action is a common-law action. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 (1989); Opp. 23; see Tull, 481 U.S. at 417–18. And despite “the peculiar form” of remedy Hardwick wants “to settle [his] legal rights,” Parsons v. Bedford, 28 U.S. 433, 447 (1830), it is beyond quibble that Hardwick’s common-law tort action is more like a commonlaw action than an equitable action (especially given Hardwick’s avowed plan to use the action to create a basis for awarding compensatory damages).
From a pleading perspective, too, the Seventh Amendment applies. It is not just in his initial complaint that Hardwick “demands trial by jury as to all issues.” ECF №1 at 32. He remains consistent in his amended complaint, which he filed after his opposition brief. ECF №96 at 1 (“First Amended Class Action Complaint and Jury Demand”). This Court cannot say that
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the jury right is “entirely inapplicable,” as Hardwick would have it (Opp. 23), when it has a suit at common law before it in which Hardwick himself demands a jury.
Article III.
If the Seventh Amendment somehow did not apply, a court (rather than a jury) would have to decide causation and the other elements of Hardwick’s claims, and in that instance a science panel could not make “conclusions on causation [that] would be ‘definitive and binding on all parties,’” as Hardwick requests, Opp. 14 (quoting Compl. ¶ 141). See Mot. 18–19.
Hardwick acknowledges as much. He understands that the science panel could not “unilaterally decide issues reserved for the Court’s determination,” including the critical issue of causation. Opp. 23. So, in this part of his response brief, he ignores what is in his complaint and contradicts his redressability argument from nine pages earlier. No longer does Hardwick want a science panel to make “definitive and binding” findings on causation. Compl. ¶ 141. Now the panel will only issue “reports and recommendations,” which this Court is free to “reject.” Opp. 23. Hardwick now requests, in other words, not a science panel that makes findings Defendants have to accept, see Compl. ¶ 141, but an advisory jury of unknown experts chosen by some unknown process subject to unstated rules and procedures.
Even if that could solve the Article III judicial-power problem, it would only confirm that Hardwick lacks Article III standing: A plaintiff cannot “bootstrap” his way into federal court on the back of a panel of experts. Cf. Steel Co., 523 U.S. at 107. “[T]he very essence of the redressability requirement” is that the plaintiff’s requested relief must actually “remedy the injury suffered,” id., and a nonbinding “recommendation” does not do that, Lujan, 504 U.S. at 569–71. See Section I.C, supra. Hardwick thus has a choice: either his science panel issues binding findings (and violates Article III by delegating the “judicial Power” to an “entit[y] outside Article III,” Stern v. Marshall, 564 U.S. 462, 484 (2011)); or it issues advisory findings (and violates “the
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very essence of the redressability requirement” of standing, Steel Co., 523 U.S. at 107). Either way, the complaint must be dismissed on Article III grounds.
Due Process. As alleged in the complaint, Hardwick’s science panel also violates Defendants’ and absent class members’ due-process rights. Hardwick’s complaint puts no limits on the selection or operation of the panel, giving it freewheeling discretion to do whatever it believes necessary, in whatever form it sees fit, to come up with “Sufficient Results” on causation. See Compl. ¶ 141. This “quasi[]judicial” factfinder, which can “disregard all rules of evidence, and capriciously make findings by administrative fiat,” is “inconsistent with rational justice, and comes under the Constitution’s condemnation of all arbitrary exercise of power.” Interstate Commerce Comm’n v. Louisville & Nashville R.R. Co., 227 U.S. 88, 91 (1913); see Mot. 19–20.
Hardwick does not respond to this argument except again to argue that this Court could “reject any of [the panel’s] recommendations.” Opp. 23. That not only negates redressability but misses the pivotal due-process point, which is that the way the panel would be chosen and would reach its conclusions violates due process. See Hicks v. Colvin, 214 F. Supp. 3d 627, 633–38 (E.D. Ky. 2016) (Thapar, J.) (collecting due-process cases), aff’d, 909 F.3d 786 (6th Cir. 2018). If the panel is not bound by or subject to the rules and rights associated with motion practice, presentation of evidence, limits on expert testimony, trials, appeals, or precedent — and Hardwick gives no indication that it would be bound by any of this — then Defendants’ due-process rights will be trampled.
Nor does Hardwick respond to Defendants’ separate due-process argument about protecting absent class members. Mot. 20. If Hardwick’s science panel finds no risk sufficient to warrant any relief, then 320 million Americans, bound by that no-causation finding, see Compl. ¶ 141, will lose their potential PFAS claims — without having a say and with little to no judicial
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review. Even the far more regulated process of resolving claims through class arbitration “raises serious due process concerns by adjudicating the rights of absent members of the plaintiff class . . . with only limited judicial review.” Lamps Plus, Inc. v. Varela, __ S. Ct. __, 2019 WL 1780275, at *5 (Apr. 24, 2019). Resolving claims through adjudication-by-science-panel — potentially with no judicial review — takes these “serious due process concerns” to an unconstitutional level. Id. To protect absent class members and the Defendants, this Court should dismiss the complaint because of the illegal relief it requests.
IV. THE COMPLAINT FAILS TO STATE A CLAIM UNDER TWOMBLY AND IQBAL
A. The complaint does not plead the specific conduct of specific Defendants that allegedly caused the purported injuries.
Hardwick’s complaint “fails to allege sufficient factual allegations to support any claims,” especially because it leaves Defendants “with no notice of . . . [the] factual circumstances giving rise to any claims.” Hill v. Ohio State Univ. T & L, 2013 WL 2295881, at *3 (S.D. Ohio May 24, 2013). As Defendants’ opening brief explained (at 21–24), the complaint neither identifies the offending conduct of any particular Defendant nor explains how that conduct caused Hardwick’s purported injuries.
Hardwick’s opposition brief rests on a “blatant flaw”: It adds new facts not found in the complaint, and rewrites the actual allegations. Hill, 2013 WL 2295881, at *3. Hardwick thus violates the “axiomatic” rule that a “complaint may not be amended by the briefs in opposition to a motion to dismiss.” Id.; see also Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 328 (6th Cir. 2006). The complaint alleges that the Defendants “marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, sold, and/or otherwise handled and/or used PFAS” “in such a way as to cause” PFAS to enter the “Plaintiff’s and the class members’ blood and/or bodies.” Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37 (emphasis
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added). The brief in opposition, by contrast, transforms each use of “and/or” into an “and.” E.g., Opp. 10. Now, “all of the Defendants engaged in the same, or very similar, conduct,” so that “[e]ach Defendant” supposedly injured Hardwick “in the variety of ways repeatedly described in the Complaint.” See, e.g., Opp. 12, 24, 36, 39 (emphasis added).
“ Because none of these [new] allegations are in the [complaint], the Court cannot consider them as informing the motion to dismiss.” Hill, 2013 WL 2295881, at *3. This is not mere “nitpicking,” as Hardwick elsewhere suggests. Opp. 36. “And/or” means that any given Defendants did “either” one verb “or” another, or perhaps both. American Heritage Dictionary 32 (4th ed. 2001) (emphasis added). So, as alleged, it is just a possibility that Defendants manufactured PFAS — just as it is a possibility that all they did was train users. And one possible action might be a proximate cause; but another possible action (say, producing instructional materials on PFAS products that Hardwick never encountered) would not. See Mot. 23. So just as “and/or” “allegations that, at most, established the possibility” of a claim were not enough for the Sixth Circuit in Patterson v. Novartis Pharm. Corp., 451 F. App’x 495, 497–98 (2011), they should not be enough for this Court here either.
But even if Hardwick had used “and” rather than “and/or” in his complaint, it still would not have fixed his most fundamental pleading problem. All Hardwick has is verbs; he needs facts to get past Twombly and Iqbal. As Hardwick himself concedes, a complaint must be dismissed when the plaintiff “fail[s] to allege any facts that support[] h[is] assertion that the defendants engaged in un[lawful] conduct.” Opp. 26; see Bickerstaff v. Lucarelli, 830 F.3d 388, 400–01 (6th Cir. 2016). From the complaint, however, the only way to describe what any Defendant did would be to use the collection of ten verbs; the reader could not describe the Defendants’ conduct with any more detail than that. And that dooms Hardwick’s complaint under the law that Hardwick
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himself acknowledges. The complaint must “identify specific actions taken by specific defendants,” DeNoma v. Kasich, 2017 WL 6987677, at *3 (6th Cir. Oct. 16, 2017), but Hardwick’s does not.
Hardwick entirely misunderstands this argument when he says that “Defendants take issue with [his] allegation that all of the Defendants engaged in the same, or very similar, conduct” and that Defendants’ argument is based on a “theme that they are beyond the reach of the law because their alleged conduct is too expansive to punish.” Opp. 24. That is not at all Defendants’ argument. Our argument is that, regardless of how “expansive” a plaintiff thinks a group of defendants’ conduct is, that plaintiff cannot recover against those defendants unless his complaint contains “sufficient factual matter” to “give each defendant sufficient notice of the misconduct alleged against” it. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Brockman v. Chevron USA, Inc., 2010 WL 11538073, at *2 (S.D. Ohio Aug. 11, 2010). When “the complaint simply refers to [the] ‘Defendants’ collectively without specifying or identifying each Defendant’s alleged misconduct,” or when it fails to plead the facts behind the defendants’ “very similar” conduct, “it fails to meet the pleading standards set forth in Twombly and Iqbal.” Brockman, 2010 WL 11538073, at *2; see In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896, 905 (6th Cir. 2009).
Additionally, whatever each Defendant supposedly did, nothing in the complaint links that conduct to the purported injury that Hardwick asserts. The complaint contains no factual details about how Defendants’ actions purportedly caused Hardwick’s supposed injury. It does not even say whether any of the Defendants produced, supplied, or were otherwise connected to the firefighting foam and firefighting equipment allegedly used by Hardwick. Those basic details must be pleaded. See, e.g., Marcum v. Jones, 2006 WL 543714, at *2 (S.D. Ohio Mar. 3, 2006).
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And a complaint like Hardwick’s that fails to do so must be dismissed under Twombly and Iqbal. See Mot. 22–24 (collecting cases).
B. Neither market-share nor alternative liability saves the complaint.
Hardwick cannot rely on market-share liability (which Ohio has rejected) or alternative liability (which requires naming all potentially responsible tortfeasors) to overcome the defects plaguing his causation allegations. Mot. 24–26. Completely ignoring the threshold point that neither theory frees him from the federal-court pleading requirement that each defendant receive sufficient notice of the misconduct alleged against it specifically (see Mot. 24), Hardwick responds that he has pleaded enough to proceed on both theories. He again is mistaken.
Hardwick acknowledges that the Ohio Supreme Court has twice rejected market-share liability. See Sutowski v. Eli Lilly & Co., 696 N.E.2d 187, 190 (Ohio 1998); Goldman v. JohnsManville Sales Corp., 514 N.E.2d 691, 700 (Ohio 1987). And he cites no Ohio cases applying that theory of liability. He nonetheless contends that the Ohio Supreme Court would apply the theory to a case like this one, which is supposedly somehow materially different from Sutowski and Goldman. There is zero merit to Hardwick’s argument.
As an initial matter, the Ohio Supreme Court’s rejection of market-share liability was categorical. After describing the “market-share theory,” the Court concluded: “This is not the law in Ohio.” Sutowski, 696 N.E.2d at 190. Indeed, not only has the Ohio Supreme Court rejected market-share liability, the Ohio Legislature did the same thing in enacting the Ohio Product Liability Act. Ohio Rev. Code § 2307.73(C). Together, that should end the matter.
Hardwick’s grounds for distinguishing Sutowski and Goldman are illusory. He says Sutowski was a product-liability case; but this case too involves allegations about (unspecified) products for which Hardwick seeks to impose liability. Likewise, he says that Goldman involved absent third-party manufacturers, but the same is true here. See Section I.B, supra. And his
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nominal disclaimer of compensatory damages does not create a meaningful distinction from Sutowski or Goldman either, especially when Hardwick has made clear that he intends to use this suit to ultimately recover damages from the Defendants. See Section V, infra.
Even if Sutowski and Goldman did not foreclose the expansion of Ohio tort liability urged by Hardwick, it would still be inappropriate for this Court to bless such an expansion. As the Sixth Circuit has explained, “[f]ederal courts hearing diversity matters should be extremely cautious about adopting ‘substantive innovation’ in state law,” and, “[w]hen given a choice between an interpretation of [state] law which reasonably restricts liability, and one which greatly expands liability, [the court] should choose the narrower and more reasonable path.” Combs v. Int’l Ins. Co., 354 F.3d 568, 577–78 (6th Cir. 2004). The narrower path here leads to rejection of market-share liability.4
Regarding alternative liability, Hardwick does not dispute that the theory applies only where the plaintiff names “all potentially responsible tortfeasors.” See Burke v. Schaffner, 683 N.E.2d 861, 866–67 (Ohio Ct. App. 1996). Hardwick instead contends that this Court must accept that Defendants are the only ones potentially responsible given the procedural posture of this case. He is wrong.
First, Hardwick does not actually allege that Defendants are the only parties that harmed him. He cites no such allegation. And nothing in the complaint excludes the possibility that others caused his purported injuries. Indeed, although devoid of the necessary specifics, the complaint expressly alleges that “Defendants maliciously conspired among each other and with consulting
4 At all events, Hardwick has failed to respond to Defendants’ argument that market-share liability is inappropriate “where it cannot be shown that all the products to which the injured party was exposed are completely fungible.” Goldman, 514 N.E.2d at 700. Hardwick does not and cannot make that showing about the myriad products containing the thousands of different chemicals comprising the umbrella-term “PFAS” that have been used over the last sixty or more years in countless applications.
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firms, agents, representatives, and others” — none of whom are named Defendants here — to cause Hardwick harm. Compl. ¶ 133; see also Section I.B, supra.
Second, as explained in the traceability section, the Court can — and should — take judicial notice of the court filings and other public records identifying numerous potentially responsible third parties. See id.
Third, Hardwick cannot overcome two independent obstacles to alternative liability. He has not sufficiently alleged proximate causation for even “one of the defendants.” Goldman, 514 N.E.2d at 696; see Section IV.A, supra. And he does not and cannot allege that all PFAS (much less all products containing PFAS) are fungible. Goldman, 514 N.E.2d at 696; see supra n.4.
In sum, neither market-share nor alternative liability is available to save the complaint from dismissal for failure to adequately plead causation.
C. Hardwick has not plausibly alleged civil-conspiracy or declaratory-relief claims.
Hardwick insists that his civil-conspiracy claim is based on battery allegations. Opp. 30– 31. Even if that were so, that claim deserves dismissal for all of the reasons the battery claim does. But in fact, the conspiracy claim makes no mention of any conspiracy to commit a battery on Hardwick; indeed, the word “battery” appears nowhere in that claim. Rather, Hardwick’s conspiracy claim is predicated not on the tort of battery, but on the tort of fraud — a tort Hardwick admittedly did not plead in his complaint. Accordingly, no matter the tort on which it is based, the conspiracy claim should be dismissed.
The complaint alleges that Defendants conspired to make “unlawful, affirmative misrepresentations and/or unlawful concealment of material facts regarding PFAS,” “to wrongfully and/or unlawfully hide [their] illegal and unlawful acts and/or omissions,” “to improperly minimize, trivialize, and/or misrepresent the actual harm and/or risks of PFAS
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exposures,” and “to wrongfully and/or unlawfully deceive Plaintiff, and other members of the Class, into believing that PFAS was safe and/or to avoid lost profits and other economic harm to Defendants.” Compl. ¶¶ 133–34 (emphasis added).
These allegations plainly assert that Defendants’ alleged conspiratorial objective was to commit a fraud on Hardwick and the putative class, not a battery. See, e.g., Glassner v. R.J. Reynolds Tobacco Co., 1999 WL 33591006, at *4 (N.D. Ohio June 29, 1999), aff’d, 223 F.3d 343 (6th Cir. 2000) (construing plaintiff’s tobacco claim as a common-law fraud claim). Although Hardwick now tries to relabel his conspiracy claim as a conspiracy to commit a battery, Hardwick “cannot simply ignore what was actually pleaded.” Opp. 31. The complaint attempts to plead a conspiracy to commit a fraud concerning the risks of PFAS, and that is what Hardwick is stuck with. See In re Travel, 583 F.3d at 903.
Since Hardwick has tried to allege a conspiracy claim predicated on fraud, he must separately allege a plausible claim for fraud. Mot. 26–27; see also Gosden v. Louis, 687 N.E.2d 481, 497 (Ohio Ct. App. 1996). He has failed to do so (and does not even argue otherwise). His conspiracy claim thus fails.
Finally, when it comes to Hardwick’s claim for declaratory relief, Hardwick admits that he is not seeking independent declaratory relief. Opp. 32. And because this is “not a stand-alone claim,” id., it falls along with the claims on which it is based.
V. THE OHIO PRODUCT LIABILITY ACT ABROGATES HARDWICK’S CLAIMS
Hardwick’s claims independently deserve dismissal because the Ohio Product Liability Act abrogates them. As Defendants’ opening brief showed (at 28–30), Hardwick’s claims satisfy the requirements for OPLA abrogation notwithstanding Hardwick’s efforts to plead around the statutory language defining an abrogated product-liability claim as one that “seeks to recover compensatory damages.” Ohio Rev. Code § 2307.71(A)(13). Hardwick asserts only one challenge
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to this OPLA abrogation argument. He insists that the Court must accept a nominal disclaimer of compensatory damages in his complaint. But in interpreting the OPLA, the Court cannot blind itself to the reality revealed elsewhere in the complaint and in Hardwick’s opposition brief.
Under any sensible reading of the OPLA, Hardwick’s claims seek compensatory damages. The complaint’s compensatory-damages disclaimer does not apply to individual, as opposed to “class-wide,” claims. Compl. ¶ 140. The complaint pleads that the requested science panel will determine whether PFAS causes harm “sufficient to warrant any personal injury compensation.” Compl. ¶ 75. And Hardwick’s brief baldly states that “[t]he science panel’s conclusions . . . would likely establish, at least as to causation, Mr. Hardwick’s entitlement to monetary damages from Defendants.” Opp. 14. A suit attempting to “establish” a plaintiff’s “entitlement” to “monetary damages” indisputably seeks compensatory damages within the meaning of the OPLA’s abrogation provision.
Hardwick also seeks compensatory damages through his demand that Defendants fund the science panel he requests. See Compl., Prayer (f). That demand seeks to shift the responsibility for paying Hardwick’s investigative costs to Defendants. See Compl. ¶ 86. As the cases cited in Defendants’ brief explain (at 30), an award of investigative costs is a form of compensatory damages. Hardwick does not cite a single case to the contrary. Instead, he tries to distinguish the facts of the cases we cited. But he obscures that two of the cases involved the characterization of investigative costs in environmental contamination actions (New Mexico v. Gen. Elec. Co., 467 F.3d 1223, 1244–45 & n.31 (10th Cir. 2006); In re MTBE Prod. Liab. Litig., 2007 WL 700819, at *3 (S.D.N.Y. Mar. 7, 2007)), and one expressly addressed “compensatory damages for reasonably foreseeable future costs of investigation” (MTBE, 2007 WL 700819, at *3 (emphasis added)).
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It is easy to see why Hardwick would want to obscure these decisions. MTBE, in particular, belies Hardwick’s argument that damages are “compensatory” only when they “reimburse” a plaintiff for costs “already paid.” Opp. 36. And MTBE is far from the only case disproving that dubious notion. Courts often award future costs as compensatory damages. See, e.g., Park v. Shiflett, 250 F.3d 843, 854 (4th Cir. 2001); Siders v. Reynoldsburg Sch. Dist., 650 N.E.2d 150, 162 (Ohio Ct. App. 1994).
Despite all of the indications that he intends to use this suit to obtain compensatory damages, Hardwick maintains that it would contradict the OPLA’s plain language to look beyond the allegation that he is not “seeking any compensatory damages for personal injuries through any class-wide claims asserted herein” (Compl. ¶ 140). But the statutory language does not specify the way in which a claim must seek compensatory damages. And refusing to apply OPLA abrogation to complaints that seek compensatory damages in roundabout or disguised ways, as Hardwick would have it, would open a massive loophole, allowing plaintiffs to easily circumvent OPLA abrogation through artful pleading. See, e.g., InBev USA LLC v. Hill Distrib. Co., 2006 WL 6924045, at *6 (S.D. Ohio Apr. 3, 2006) (rejecting interpretation that “would create an enormous loophole in the statutory prohibition”). It would also force defendants to litigate common-law product-liability claims that simply lay the basis for compensatory damages, which would in turn both defeat the OPLA’s intent to replace such claims with more limited statutory claims and create a host of potential claim-splitting, claim-preclusion, due-process, and Seventh Amendment problems. See, e.g., Edwards v. Warner-Lambert, 2011 WL 5914008, at *4 (S.D. Ohio Nov. 28, 2011) (the OPLA “was intended to regulate product liability causes of action, including abrogating all common law causes of action related to products liability”); In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1302–04 (7th Cir. 1995) (describing difficulties raised by bifurcation of issues).
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In the end, then, nothing in the OPLA requires this Court to adopt Hardwick’s blinkered approach to compensatory damages. Courts routinely look past artful pleading and conclusory allegations contradicted by other material in the complaint and relevant papers. See, e.g., Segal v. Fifth Third Bank, N.A., 581 F.3d 305, 310–11 (6th Cir. 2009) (plaintiffs could not avoid statute “through artful pleading that removes the covered words from the complaint but leaves in the covered concepts”); Gawry v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 942, 961 (N.D. Ohio 2009) (certification of Rule 23(b)(2) class is inappropriate when requested declaratory relief “simply lays a basis” for damages). Indeed, a court in this District has already done so in the OPLA context, holding that a claim for “declaratory and temporary and permanent injunctive relief” was abrogated by the OPLA, because the claim, “however labeled, [was] essentially [a] products liability claim[].” Mitchell v. Proctor & Gamble, 2010 WL 728222, at *2, 5 (S.D. Ohio Mar. 1, 2010) (cited at Mot. 28, 30). This Court should do the same here and dismiss Hardwick’s claims as abrogated by the OPLA.
VI. THIS COURT LACKS PERSONAL JURISDICTION
A. This Court lacks personal jurisdiction for Hardwick’s individual claims.
Because the “plaintiff must prove that jurisdiction is proper over each defendant individually,” Zobel v. Contech Enters., 170 F. Supp. 3d 1041, 1044 (S.D. Ohio 2016) (Sargus, C.J.) (emphasis added), each Defendant has separately filed personal-jurisdiction reply briefs.
B. This Court lacks personal jurisdiction for Hardwick’s class claims.
But one personal-jurisdiction question is common across Defendants: Does this Court have personal jurisdiction over Defendants for Hardwick’s claims on behalf of the proposed nationwide class — none of whose claims have any alleged connection to the conduct of Defendants in Ohio? The answer is no. Two Terms ago, the Supreme Court made clear that nonresident plaintiffs could not bring suit in a forum “without identifying an[] adequate link between the [forum] State
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and the nonresidents’ claims.” Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1781 (2017). Hardwick does not allege that the claims of putative class members have any connection to Ohio conduct by Defendants. Rather, he concedes that, if applicable, Bristol-Myers would prevent the Court from asserting personal jurisdiction over any of the Defendants with respect to the claims of the putative nationwide class.
Bristol-Myers applies. Hardwick asserts it does not because this is a class action, but he reads the Supreme Court’s mandate in Bristol-Myers far too narrowly. Courts should not limit Bristol-Myers to the precise context in which it arose, see Maclin v. Reliable Reports of Tex., Inc., 314 F. Supp. 3d 845, 851 (N.D. Ohio 2018); it “applies with equal force in the class action context,” In re Dicamba Herbicides Litig., 359 F. Supp. 3d 711, 723 (E.D. Mo. 2019) (collecting cases).5
Hardwick argues, first, that unlike the plaintiffs in Bristol-Myers, the class members here would not be named plaintiffs and thus are not real parties in interest. See Opp. 44–45. But that argument — resting on the fact that absent class members are not parties until the Court certifies a class — is circular, and does not answer the question whether a proposed nationwide class that includes members whose claims have no connection to conduct by the defendant in the forum can be certified. And if such a class were certified, the absent class members would become parties for all relevant purposes. See United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1538 (2018).
Hardwick also argues that there is no need to apply Bristol-Myers to putative class actions because the Rule 23 requirements for class actions provide “safeguards” that do not exist in mass actions. See Opp. 45. But this argument rests on the erroneous view that the Due Process Clause
5 District-court decisions on this issue are split, and to Defendants’ knowledge no appellate court has yet decided the issue, although two such appeals are pending. See Molock v. Whole Foods Market, Inc., 297 F. Supp. 3d 114 (D.D.C. 2018), appeal filed, №18–7162 (D.C. Cir. Oct. 31, 2018); Mussat v. IQVIA, Inc., 2018 WL 5311903 (N.D. Ill. Oct. 26, 2018), appeal filed, №19–1204 (7th Cir. Feb. 1, 2019).
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affords the same defendant different protections depending on whether the individual asserting a claim is a named plaintiff or an absent member of a putative class. That is mistaken.6
A Rule 23 class action is a “species” of “traditional joinder” that “enables a federal court to adjudicate claims of multiple parties at once, instead of in separate suits.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 408 (2010) (plurality op.). It is a procedural device, “ancillary to the litigation of substantive claims.” Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 332 (1980). There is nothing special about a class action that overrides the due-process principles recognized by the Supreme Court. Indeed, the Rules Enabling Act bars plaintiffs from using the class-action device to make an end-run around the due-process constraints on specific personal jurisdiction. The Act provides that rules of procedure, including Rule 23, “shall not abridge, enlarge[,] or modify any substantive right.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997) (quoting 28 U.S.C. § 2072(b)). That means a plaintiff cannot deprive a defendant of a defense it would have in an individual action by bringing the case as a class action.
The Supreme Court has enforced the Rules Enabling Act’s command in the class-action context. In Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), for example, the Court refused to permit class certification that would prevent the defendant from litigating a statutory defense to individual claims. Id. at 367. A contrary rule, the Court explained, would “interpret[] Rule 23 to ‘abridge, enlarge or modify any substantive right’ ” in violation of the Act. Id. That reasoning applies equally to defenses based on constitutional due process, such as the personal-jurisdiction defense raised here. For that reason, the district courts that have (correctly) applied Bristol-Myers in the class-action context have recognized that the Rules Enabling Act requires “consistent and
6 In addition, allowing a State to assert jurisdiction over the claims of a putative nationwide class based on a single named plaintiff ’s connection to the forum would permit the forum State to decide claims as to which it has insufficient legitimate interest, infringing on the sovereign authority of other States. See Bristol-Myers, 137 S. Ct. at 1780.
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uniform application of defendants’ due process rights” between “class actions under Rule 23” and “individual or mass actions.” E.g., Mussat, 2018 WL 5311903, at *6.
Moreover, the “safeguards” that Hardwick points to under “under Rule 23 — numerosity, commonality, typicality, adequacy of representation, predominance and superiority” (Opp. 45) — differ from, and do not satisfy, the due-process requirements to establish personal jurisdiction. Due process requires a substantial relationship between the defendant, the forum, and the particular claim. See Walden v. Fiore, 571 U.S. 277, 283–84 (1984). Nothing in Rule 23 ensures that such a relationship exists. Rule 23 requires that the plaintiffs’ claims be similar, and that the named plaintiffs’ claims be typical of other class members’ claims — but mere similarity of claims or a relationship between the plaintiffs is not enough to satisfy the due-process limits on personal jurisdiction. Bristol-Myers, 137 S. Ct. at 1781.
Next, Hardwick suggests that “the Supreme Court itself implied” in Bristol-Myers that its “holding should be limited” because it “characterize[ed] its holding as a ‘straightforward application . . . of settled principles of personal jurisdiction.” Opp. 45 (quoting 137 S. Ct. at 1783). But the “settled principles” that the Court said “control[led] th[e] case” were that: (i) for specific jurisdiction to exist, “there must be an ‘affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State,’” (ii) “[w]hen there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State,” and (iii) “a defendant’s relationship with a . . . third party, standing alone, is an insufficient basis for jurisdiction.” 137 S. Ct. at 1781 (citations omitted). Applying those principles, the Court held that due process precluded the assertion of specific jurisdiction with respect to the claims of nonresident plaintiffs, “even when
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third parties” — in Bristol-Myers, the California plaintiffs — “can bring claims similar to those brought by the nonresidents.” Id.
Those same “settled principles” apply here. Just as in Bristol-Myers, even if the Court were to conclude that it has specific jurisdiction over any given Defendant with respect to Hardwick’s individual claims, that would not allow the Court “to assert specific jurisdiction over the [absent class members’] claims” when there is no “connection between the forum” and their “specific claims.” Id. This makes sense, too, for the Court in Bristol-Myers “announced a general principle — that due process requires a ‘connection between the forum and the specific claims at issue.’” Dicamba, 359 F. Supp. 3d at 723; see also, e.g., Leppert v. Champion Petfoods USA Inc., 2019 WL 216616, at *4 (N.D. Ill. Jan. 16, 2019).
Finally, Hardwick argues that “‘[t]o hold Bristol-Myers now applicable to all federal class actions, would ‘result in a wholesale change in federal class action jurisprudence, drastically reducing the number of forums where a nationwide class action could be brought’” and making it more difficult for plaintiffs to bring class actions. Opp. 45–46 (citations omitted). But such policy arguments do not provide a legitimate basis for declining to apply the Constitution as expounded by the Supreme Court in Bristol-Myers. As the Court emphasized in another recent personaljurisdiction decision, “[d]ue process limits on the State’s adjudicative authority principally protect the liberty of the nonresident defendant — not the convenience of plaintiffs or third parties.” Walden, 571 U.S. 284; see also Bristol-Myers, 137 S. Ct. at 1780–81 (the Due Process Clause may preclude the assertion of specific jurisdiction “even if the forum State is the most convenient location for litigation”). What’s more, application of the “settled principles” set forth in BristolMyers would not preclude a plaintiff from filing an otherwise-proper nationwide class action in a
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forum where the defendant is subject to general personal jurisdiction. See Bristol-Myers, 137 S. Ct. at 1783.
Hardwick thus has not alleged personal jurisdiction to support his class claims, and this Court cannot force any of the Defendants into an Ohio court to defend them — including by deferring resolution of this issue. Although some district courts have done that, this Court should not. It has the benefit of full briefing on the subject, the issue is a legal one, and — if Hardwick’s own claims survive the pending motions to dismiss — resolution of the issue may “streamline discovery and simplify the disputed issues” going forward. See, e.g., Mussat, 2018 WL 5311903, at *5. It makes no sense for the Court and the parties to expend resources on class discovery and class-certification proceedings if the proposed nationwide class is foreclosed at the outset by Bristol-Myers. At the least, therefore, the Court should dismiss Hardwick’s class claims for lack of personal jurisdiction.
C. This Court should deny Hardwick leave to amend.
Given these jurisdictional defects, Hardwick understandably asks for leave to amend. But he does so as part of “his memorandum in opposition to a Rule 12 motion,” does not “provide details concerning the proposed amendments,” and does not “attach a copy of the amended complaint to his brief.” Ayer v. Community Mercy Health Partners, 2019 WL 1902520, at *5 (S.D. Ohio Apr. 29, 2019). This alone is enough to deny his request. See id. at *4–5; see Alexander v. Eagle Mfg. Co., LLC, 714 F. App’x 504, 510–11 (6th Cir. 2017). The reality that Hardwick continues to offer only vague promises of “greater detail” (Opp. 48) strongly suggests that he has no specific facts to offer as to any of the Defendants.
But even if Hardwick’s amendment were permissible and could somehow cure the “missing” links “between [any given Defendants’ alleged] actions and Ohio and Mr. Hardwick,” Opp. 48, the amendment should still be denied because it would be futile. See Kiker v. Smithkline
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Beecham Corp., 2015 WL 5768389, at *2 (S.D. Ohio Sept. 30, 2015). First, Hardwick does not seek leave to amend his complaint in response to the Bristol-Myers argument, so if the Court agrees that Bristol-Myers applies to class actions, Hardwick’s allegations of a putative nationwide class must be dismissed. Second, Hardwick notably asks for leave to amend only “to plead additional facts in support of this Court’s jurisdiction,” Opp. 48, not to change the illegal relief he requests, fix his broken causes of action, or allege a palpable injury. So long as Hardwick continues to allege no illness, continues to fail to describe the type and amount of PFAS in him, continues to ask for a court-ordered science panel as relief, and continues to bring abrogated product-liability claims, the defects in his complaint are simply too overwhelming to be overcome by amendment.
CONCLUSION
For these reasons, the Court should dismiss the Amended Complaint in its entirety and should deny Hardwick leave to amend.
Dated: May 13, 2019
Respectfully submitted,
/s/ Theodore M. Grossman On Behalf of the Below-Signed Attorneys for Defendants
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/s/ Drew H. Campbell Drew H. Campbell (0047197) (Trial Attorney) Bricker & Eckler LLP 100 South Third Street Columbus, Ohio 43215 Telephone: (614) 227–2300 Facsimile: (614) 227–2390 Email: dcampbell@bricker.com
Kegan A. Brown (admitted pro hac vice) Latham & Watkins LLP 885 Third Avenue New York, NY 10022–4834 Telephone: (212) 906–1200 Facsimile: (212) 751–4864 Email: kegan.brown@lw.com
Gwyn Williams (admitted pro hac vice) Latham & Watkins LLP 200 Clarendon Street Boston, MA 02116 Telephone: (617) 948–6000 Facsimile: (617) 948–6001 Email: gwyn.williams@lw.com
Attorneys for Defendant Solvay Specialty Polymers USA, LLC
/s/ Ronald S. Kopp Ronald S. Kopp (Trial Attorney) Jessica A. Lopez Roetzel & Andress 222 South Main Street, Suite 400 Akron, OH 44308 Phone: (330) 849–6644 Facsimile: (330) 376–4577 Email: rkopp@ralaw.com
/s/ Theodore M. Grossman Theodore M. Grossman (0037591) (Trial Attorney) JONES DAY 250 Vesey Street New York, NY 10281 T: 212.326.3939 F: 212.755.7306 tgrossman@jonesday.com
Louis A. Chaiten (0072169) James R. Saywell (0092174) JONES DAY North Point 901 Lakeside Avenue East Cleveland, Ohio 44114–1190 T: (216) 586–3939 F: (216) 579–0212 lachaiten@jonesday.com jsaywell@jonesday.com
Matthew A. Kairis (0055502) JONES DAY 2727 North Harwood Street Dallas, Texas 75201–1515 T: (214) 220–3939 F: (214) 969–5100 makairis@jonesday.com
Counsel for Daikin America, Inc. and Daikin Industries
/s/ James A. King PORTER WRIGHT MORRIS & ARTHUR 41 S. High Street, Suite 2800 Columbus, OH 43215–6194 Phone: (614) 227–2000 Email: jking@porterwright.com Maja C. Eaton Sara J. Gourley SIDLEY AUSTIN LLP (continued on next page)
Eric P. Gotting (admitted pro hac vice) Keller and Heckman LLP 1001 G Street NW, Suite 500 West Washington D.C. 20001 (202) 434–4100; (202) 434–4646 (fax) Email: gotting@khlaw.com
Counsel for Archroma Management LLC
s/ Shawn J. Organ Shawn J. Organ (0042052) (Trial Attorney) Erik J. Clark (0078732) Sean M. Stiff (0091811) ORGAN COLE LLP 1330 Dublin Road Columbus, OH 43215 Ph: 614–481–0901 Fax: 614–481–0904 Email: sjorgan@organcole.com ejclark@organcole.com smstiff@organcole.com
John K. Sherk, III (pro hac vice) SHOOK, HARDY & BACON One Montgomery St., Suite 2700 San Francisco, CA 94104 Ph: 415–544–1900 Fax: 415–391–0281 Email: jsherk@shb.com
Andrew D. Carpenter (pro hac vice) SHOOK, HARDY & BACON 2555 Grand Blvd. Kansas City, MO 64108 Ph: 816–474–6550 Fax: 816–421–5547 Email: acarpenter@shb.com
Attorneys for the Chemours Company LLC and E.I. du Pont de Nemours and Co.
One South Dearborn Street Chicago, IL 60603 (312) 853–7000 Fax: (312) 853–7036 Email: meaton@sidley.com
Counsel for Arkema, Inc. and Arkema France, S.A.
/s/ Richard D. Schuster Richard D. Schuster (0022813) Jonathan P. Corwin (0076056) Vorys, Sater, Seymour and Pease LLP 52 East Gay Street, P.O. Box 1008 Columbus, Ohio 43216–1008 Tel: (614) 464–6400 Fax: (614) 464–6350 Email: rdschuster@vorys.com jpcorwin@vorys.com
Rosemary D. Welsh (0064790) Vorys, Sater, Seymour and Pease LLP 301 East Fourth Street, Suite 3500 Cincinnati, Ohio 45202 Tel: (513) 723–4022 Fax: (513) 852–8457 E-Mail: rdwelsh@vorys.com
Daniel L. Ring (admitted pro hac vice) Joshua D. Yount (admitted pro hac vice) Megan E. Stride (admitted pro hac vice) MAYER BROWN LLP 71 South Wacker Drive Chicago, Il 60606 Tel: (312) 782–0600 Fax: (312) 701–7711 Email: dring@mayerbrown.com jyount@mayerbrown.com mstride@mayerbrown.com
Counsel for Defendant 3M Company
CERTIFICATE OF SERVICE
I certify that on May 13, 2019 a true and correct copy of the foregoing was electronically filed with the Clerk of the United States District Court of the Southern District of Ohio, using the CM/ECF system, which will send notification of such filing to all counsel of record at the email addresses that they have provided to the Court.
/s/ Theodore M. Grossman
On Behalf of Counsel for Defendants
