4.12.2019 Robert Bilott’s response to ‘motion to dismiss’ by 3M, DuPont, et al ., in the case of FIRE CHIEF KEVEN HARDWICK vs 3M, DuPont, et al…

71 min readApr 17, 2019

Attorney Robert Bilott’s 64 page response to the ‘motion to dismiss’ Hardwick vs 3M, DuPont, et al ., ……. See original filing of 10.4.18:

http://liblog.law.stanford.edu/wp-content/uploads/2018/10/Hardwick-v-3M-et-al-S.D.OhioE_.Div-no.18-01185-COMPLAINT-Thu4Oct2018.pdf

COMBINED TABLE OF CONTENTS AND SUMMARY PURSUANT TO S.D. OHIO CIV. R. 7.2(A)(3)

TABLE OF AUTHORITIES ……………………………………………………. vi INTRODUCTION ……………………………………………………………… 1 FACTS ………………………………………………………………………….. 3 ARGUMENT …………………………………………………………………… 5

Mr. Hardwick Has Standing. ………………………………………………….. 5

A. Mr. Hardwick Has Plausibly Pleaded Injury in Fact. ……………………….. 5 Mr. Hardwick has “suffered an invasion of a legally protected interest that is concrete.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016). His body and blood have been contaminated with Defendants’ man-made chemical toxins, which have been linked to diseases in humans and which will continue to accumulate.

B. Mr. Hardwick’s Injury Is Fairly Traceable to Defendants. …………………. 9 Mr. Hardwick plausibly pleads “a fairly traceable connection between [his] injury and the complained-of conduct of the defendant[s].” Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787 (6th Cir. 2009). Defendants manufactured, distributed, handled, and used PFAS in such a way that it resulted in the contamination of the blood and bodies of Mr. Hardwick and the other class members.

C. Mr. Hardwick’s Injuries Are Redressable. ………………………………. 13 Mr. Hardwick has adequately alleged redressability. He alleges that Defendants’ conduct caused PFAS to enter his blood and body, that he fears the unknown effects of having PFAS in his blood, and that the establishment of a science panel to study the effect of PFAS in human blood will partially redress his injuries. Parsons v. U.S. Dep’t of Justice, 801 F.3d 701 (6th Cir. 2015).

II. The Complaint Plausibly Pleads Injury Under Ohio Law ……………… 18

Mr. Hardwick pleads concrete injury in fact under Ohio law. Orser v. City of Perrysburg, No. WD-16–038, 2017 WL 3017051 (Ohio Ct. App. 2017).

III. This Court Has the Authority to Award the Requested Relief. …………. 20

A. The Relief Mr. Hardwick Seeks is Available in Federal Court. …………… 20 Courts have broad power to award appropriate equitable relief. “[E]quity has been characterized by a practical flexibility in shaping its remedies … and reconciling public and private needs.” Miliken v. Bradley, 433 U.S. 267, 288 (1977). Mr. Hardwick can receive the equitable relief he seeks from this Court. Defendants’ actions caused a toxic chemical to invade Mr. Hardwick’s blood, and Mr. Hardwick has requested a scientific panel to study the extent of the harm that

invasion has inflicted and will continue to inflict. This is precisely the type of situation that calls for the Court to “eschew rigid absolutes and look to the practical realities” of the problem to craft the appropriate relief. Santos v. Smith, 260 F. Supp. 3d 598 (W.D. Va. 2017).

B. The Relief Mr. Hardwick Seeks Does Not Violate the Seventh Amendment, Article III, or Due Process. ……………………… 22

The creation of a science panel to study the harm caused by Defendants’ toxins does not implicate Defendants’ right to a jury trial or due process, and it does not supplant this Court’s role under Article III. Mr. Hardwick is not seeking monetary damages, and the injunctive relief he seeks is an exclusively equitable remedy. Defendants’ arguments fail under the Supreme Court in Granfiananciera, S.A. v. Nordberg, 492 U.S. 33 (1989), and the Sixth Circuit in Golden v. Kelsey-Hayes Co., 73 F.3d 648 (1996).

IV. Mr. Hardwick Plausibly Pleaded the Elements of His Claims. …… 24

Mr. Hardwick has pleaded facts that are more than sufficient to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

A. Mr. Hardwick Sufficiently Pleaded What Defendants Did to Injure Him 24

Mr. Hardwick has adequately pleaded how Defendants’ harmed him and the injury he has suffered in the form of contamination of his body and blood with Defendants’ toxins. Mr. Hardwick has alleged what each Defendant did to harm him, (Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37), and he supports those allegations with numerous additional allegations showing the connection between the presence of PFAS in his blood and body and Defendants’ conduct. (See, e.g., id. ¶¶ 36–43, 48, 53–54, 62–64, 69–70, 77.) Mr. Hardwick has sufficiently informed Defendants of their wrongdoing and plausibly pleaded a claim to relief.

B. Mr. Hardwick Has Sufficiently Pleaded Causation Under the Alternative Liability And Market-Share Liability Theories. …………. 28

Mr. Hardwick’s allegations that each of the Defendants committed tortious acts and that each of those acts harmed him are sufficient to plausibly assert a claim for relief under the alternative liability theory. Mr. Hardwick also has pleaded market-share liability because a substantial share of the manufacturers of the toxin are before the Court. Goldman v. Johns-Manville Sales Corp., 514 N.E.2d 691 (Ohio 1987).

V. Mr. Hardwick’s Conspiracy and Declaratory Relief Claims Are Properly Pleaded. ……………………………………………………………………… 30

A. Mr. Hardwick Has Properly Pleaded a Claim for Conspiracy. ……… 30

Mr. Hardwick properly pleads a civil conspiracy to commit the underlying torts in this case, including battery. Maxey v. State Farm Fire & Cas. Co., 689 F. Supp. 2d 946 (S.D. Ohio 2010).

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B. Mr. Hardwick Has Properly Pleaded a Claim for Declaratory Relief. 32

Mr. Hardwick’s declaratory judgment claim is based on his battery and negligence claims. It is well within the Court’s power to make such a declaration predicated upon the underlying substantive torts. Days Inn Worldwide, Inc. v. Sai Baba, Inc., 300 F. Supp. 2d 583 (N.D. Ohio 2004).

VI. Ohio’s Product Liability Act Does Not Preempt Mr. Hardwick’s Claims. 32

To be a product liability claim, a claim must seek compensatory damages. Caterpillar Fin. Servs. Corp. v. Harold Tatman & Son’s Enters., Inc., 50 N.E.3d 955 (Ohio Ct. App. 2015). Mr. Hardwick and the class do not seek compensatory damages for personal injuries in this action. His claims are not preempted by the statute.

VII. This Court Has Personal Jurisdiction Over the Defendants. …… 36

A. The Complaint Adequately Pleads Personal Jurisdiction Over the Defendants. …………………………………………………………………. 37

The Complaint includes multiple jurisdictional facts that establish that each Defendant is subject to jurisdiction under Ohio’s long-arm statute, Ohio Rev. Code §§ 2307.382(A)(1)-(4), (6). Retail Serv. Sys., Inc. v. Mattress Clearance Centers of Am., LLC, №2:17-CV-746, 2018 WL 3716896 (S.D. Ohio Aug. 3, 2018). Jurisdiction over Defendants comports with due process because Defendants purposefully availed themselves of Ohio, their actions in and directed to Ohio caused the alleged injury, and jurisdiction is reasonable. Id. These Defendants made PFAS and released it into the world; Mr. Hardwick and nearly every other Ohioan and American has PFAS in his blood; because no one else made PFAS and it does not occur in nature, the Defendants who do make PFAS caused PFAS to intrude into Mr. Hardwick (and everyone else’s) blood and body.

B. Bristol-Myers Did Not Change the Analysis for a Court’s Jurisdiction Over Class Actions. …………………………………………………………. 43

A majority of courts have held that Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S.Ct. 1773 (2017) applies only to mass actions and not to class actions. This Court has jurisdiction over nonresident class members.

C. The Court Should Defer Personal Jurisdiction Analysis of Putative Class Members Until After Class Certification. ……………………… 46

If the Court entertains the question of whether it has jurisdiction over nonresident class members, it should do so at the class certification stage. Suarez v. California Nat. Living, Inc., №17 CV 9847 (VB), 2019 WL 1046662 (S.D.N.Y. Mar. 5, 2019).

iv.

ALTERNATIVE MOTION FOR LEAVE TO AMEND COMPLAINT ………. 48

CONCLUSION ……………………………………………………………….. 48 CERTIFICATE OF SERVICE ………………………………………………… 50

TABLE OF AUTHORITIES

Cases

Allen v. Wright, 468 U.S. 737 (1984)…………………………………. 11, 12

Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536 (6th Cir. 2004) ………………………………………………………………………….. 11

Anderson v. Barclay’s Capital Real Estate, Inc., 989 N.E.2d 997 (Ohio 2013)……………………………………………………………………………………35

Ashcroft v. Iqbal, 556 U.S. 662 (2009)……………………………………… 24

Baker v. Chevron USA, Inc., №1:05–CV–227, 2009 WL 3698419 (S.D. Ohio Nov. 4, 2009)…………………………………………………………..…….. 20

Baker v. Saint-Gobain, 232 F. Supp. 3d 233 (N.D.N.Y. 2017)……………………………………………………………………………. 5, 7 Bickerstaff v. Lucarelli, 830 F.3d 388 (6th Cir. 2016) ………………. 25, 26

Blitz v. Monsanto Co., 317 F. Supp. 3d 1042 (W.D. Wis. 2018) ……….. 47

Bouchard v. Am. Home Prods. Corp., 213 F. Supp. 2d 802 (N.D. Ohio 2002)……………………………………………………………………….. 19, 20 Bourke v. Carnahan, 840 N.E.2d 1101 (Ohio Ct. App. 2005)…………. 18, 20

Braver v. Northstar Alarm Services, LLC, 329 F.R.D. 320 (W.D. Okla. 2018)………………………………………………………………………………….. 44 Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S.Ct. 1773 (2017)………………………………………………… passim

Brown v. Plata, 563 U.S. 493 (2011)……………………………………. 21, 22

Campbell v. Freshbev LLC, 322 F. Supp. 3d 330 (E.D.N.Y. 2018) …………47

Casso’s Wellness Store & Gym, L.L.C. v. Spectrum Lab. Products, Inc., №17–2161, 2018 WL 1377608 (E.D. La. Mar. 19, 2018) ……………………… 45

Caterpillar Fin. Servs. Corp. v. Harold Tatman & Son’s Enters., Inc., 50 N.E.3d 955 (Ohio Ct. App. 2015)………………………………………………….. 32 Chernus v. Logitech, Inc., No. CV 17–673(FLW), 2018 WL 1981481 (D.N.J. Apr. 27, 2018) …………………………………………………….………… 46

Colony Ins. Co. v. Kwasnik, Kanowitz & Assocs., P.C., №1:12-cv-00722, 2014 WL 2920810 (D.N.J. June 27, 2014)…… ……………………………… 35

Crutchfield v. U.S. Army Corps of Engineers, 192 F. Supp. 2d 444 (E.D. Va. 2001) …………………………………………………………………………. 21

Days Inn Worldwide, Inc. v. Sai Baba, Inc., 300 F. Supp. 2d 583 (N.D. Ohio 2004)………………………………………………………………………….. 32

Dennis v. IDT Corp., 343 F. Supp. 3d 1363 (N.D. Ga. 2018) ……………….. 46

DeWine, 910 F.3d 842 (6th Cir. 2018) …………………………………… 15

EEOC v. Wilson Metal Casket Co., 24 F.3d 836 (6th Cir. 1994) …………………………………………………………………………. 21

Exxon Mobil Corp. v. Albright, 71 A.3d 30 (Md. 2013) …………………………………………………………………………. 7

Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., №17-cv-00564 NC, 2017 WL 4224723 (N.D. Cal. Sept. 22, 2017) ………………………………….. 44 Fowler v. Johnson, №17–11441, 2018 WL 1737122 (E.D. Mich. Apr. 11, 2018) …………………………………………… 15

Gasser v. Kiss My Face, LLC, №17-cv-01675-JSC, 2018 WL 4538729 (N.D. Cal. Sept. 21, 2018)…………………………………. 46

Gawry v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 942 (N.D. Ohio 2009)……………………………………………………………………….. 33, 34 Golden v. Kelsey-Hayes Co., 73 F.3d 648 (6th Cir. 1996) …………………. 23

vii

Goldman v. Johns-Manville Sales Corp., 514 N.E.2d 691 (Ohio 1987)..28, 30

Gonzalez v. Costco Wholesale Corp., №16-CV-2590 (NGG) (JO), 2018 WL 4783962 (E.D.N.Y. Sept. 29, 2018)…………………………..………………. 47

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989)…………………… 23

Guertin v. Michigan, 912 F.3d 907 (6th Cir. 2019) ………………….. 25, 26

Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993)………… 7

Hirsch v. CSX Transp., Inc., 656 F.3d 359 (6th Cir. 2011) ……………….. 19

Hollar v. Philip Morris Inc., 43 F. Supp. 2d 794 (N.D. Ohio 1998) ………. 42

In re Chinese-Manufactured Drywall Prod. Liability Litigation, №09–2047, 2017 WL 5971622 (E.D. La. Nov. 30, 2017)…………………………… 44, 45

In re M.W., 978 N.E.2d 164 (Ohio 2012)………………………… ……… 35

In re MTBE Prods. Liab. Litig., №1:00–1898, 2007 WL 700819 (S.D.N.Y. Mar. 7, 2007)……………………………………………………………..……… 35

In re Nat’l Century Fin. Enterprises, Inc., 504 F. Supp. 2d 287 (S.D. Ohio 2007) ………………………………………………………………………..31

Jones v. Depuy Synthes Products, Inc., №7:17-cv-01778-LSC, 2018 WL 6431013 (N.D. Ala. Nov. 20, 2018)………………………………..…… 46

Kehoe Component Sales, Inc. v. Best Lighting Prod., Inc., №2:08-CV-752, 2009 WL 2591757 (S.D. Ohio Aug. 19, 2009) …………………………. 42

Kelly v. Metro. Cnty. Bd. of Educ. of Nashville and Davidson Cnty., Tenn., 687 F.2d 814 (6th Cir. 1982) …………… …………………………………….. 22

Kiker v. Smithkline Beecham Corp., №2:14-CV-2164, 2015 WL 5768389 (S.D. Ohio Sept. 30, 2015)…………………………………….. 48

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Kiser v. Reitz, 765 F.3d 601 (6th Cir. 2014) …………………………………. 20

Knotts v. Nissan N. Am., Inc., 346 F. Supp. 3d 1310 (D. Minn. 2018)…….. 44, 45, 47

Larson v. Valente, 456 U.S. 228 (1982)……………………..………………. 14

Lemon v. Kurtzman, 411 U.S. 192 (1973)…………………..………………. 21

Linda R.S. v. Richard D., 410 U.S. 614 (1973)…………………………. 15, 16

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)………………. 16, 17, 18

M.D. by Stukenberg v. Abbott, 907 F.3d 237 (5th Cir. 2018) ………………. 21

Madej v. Maiden, №2:16-cv-658, 2018 WL 5045768 (S.D. Ohio Oct. 17, 2018) ……………………………………………………………..……………. 20

Marcum v. Jones, №1:06CV108, 2006 WL 543714 (S.D. Ohio Mar. 3, 2006) …………………………………………………………….……….. 27, 28

Massachusetts v. Mellon, 262 U.S. 447 (1923)………………………… ….16

Maxey v. State Farm Fire & Cas. Co., 689 F. Supp. 2d 946 (S.D. Ohio 2010) ………………………………………………………………………... 30

Miliken v. Bradley, 433 U.S. 267 (1977)…………………………………. 21

Molock v. Whole Foods Market, Inc., 297 F. Supp. 3d 114 (D.D.C. 2018)…………………………………………………………………………………. 44 Morrow v. Reminger & Reminger Co., L.P.A., 915 N.E.2d 696 (Ohio Ct. App. 2009)………………………………………………………………………… 31

Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa 1986) ………………… 30

New Mexico v. Gen. Elec. Co., 467 F.3d 1223 (10th Cir. 2006) ……………. 35

Ohio Lending Consultants, LLC v. Sec. Capital Holdings, Inc., №1:14 CV 1358, 2014 WL 5162285 (N.D. Ohio Oct. 14, 2014)………………………. 42

Orser v. City of Perrysburg, No. WD–16–038, 2017 WL 3017051 (Ohio Ct. App. July 14, 2017)……………………………………………………… 18

Owner-Operator Indep. Drivers Ass’n, Inc. v. U.S. Dep’t of Transp., 879 F.3d 339 (D.C. Cir. 2018)…………………………………………………….….. 8

Parsons v. U.S. Dep’t of Justice, 801 F.3d 701 (6th Cir. 2015) …………………………………………………………………. passim

Patterson v. Novartis Pharmaceuticals Corp., 451 F. App’x 495 (6th Cir. 2011) …………………………………………………………………. 26, 27, 42

Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993)………. 7

Reber v. Lab. Corp. of Am., №2:14-CV-2694, 2015 WL 7076608 (S.D. Ohio Nov. 13, 2015) …………………………………………………………….. 40

Retail Serv. Sys., Inc. v. Mattress Clearance Centers of Am., LLC, №2:17-CV-746, 2018 WL 3716896 (S.D. Ohio Aug. 3, 2018) …………………… 37, 38

Rhodes v. E.I. du Pont de Nemours & Co., 657 F. Supp. 2d 751 (S.D. W. Va. 2009), aff’d in part, appeal dismissed in part, 636 F.3d 88 (4th Cir. 2011)……………………………………………………………………….…………. 9

Rubin v. J. Crew Group, Inc., №16–2167, 2017 WL 1170854 (D.N.J. Mar. 29, 2017) ………………………………………………………………………….. 8

Sadler v. PacifiCare of Nev., 340 P.3d 1264 (Nev. 2014)……………………. 7

Sanchez v. Launch Tech. Workforce Sols., LLC, 297 F. Supp. 3d 1360 (N.D. Ga. 2018)………………………………………………………………….. 45

Santos v. Smith, 260 F. Supp. 3d 598 (W.D. Va. 2017)…………… 21, 22 Schneider v. Hardesty, 669 F.3d 693 (6th Cir. 2012) …………….. 38, 42

Spencer v. Blackwell, 347 F. Supp. 2d 528 (S.D. Ohio 2004) …………..11

Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016)………………..……… passim

State ex rel. Data Trace Information Servs., LLC v. Cuyahoga Cty. Fiscal Officer, 963 N.E.2d 1288 (Ohio 2012)……………………………………. 35

State ex rel. Petro v. Pure Tech Sys., Inc., №101447, 2015 WL 1959935 (Ohio Ct. App. Apr. 30, 2015)………………………………………….. ……………40

State ex rel. Steele v. Morrissey, 815 N.E.2d 1107 (Ohio 2004)…………. 35

State v. Hairston, 804 N.E.2d 471 (Ohio 2004)…………………………… 34

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)…………… 15, 16

Stolle Mach. Co., LLC v. RAM Precision Indus., 605 F. App’x 473 (6th Cir. 2015) ………………………………………………………………………. 40

Suarez v. California Nat. Living, Inc., №17 CV 9847 (VB), 2019 WL 1046662 (S.D.N.Y. Mar. 5, 2019) …………………………………………………..… 47

Summerville v. Forest Park, 943 N.E.2d 522 (Ohio 2010)…………..…… 34

Sutowski v. Eli Lilly & Co., 696 N.E.2d 187 (Ohio 1998)………………… 30

Swinter Group, Inc. v. Serv. of Process Agents, Inc., №4:17-CV-2759, 2019 WL 266299 (E.D. Mo. Jan. 18, 2019) ………………………………. 44, 45, 46 United States v. Ritchie, 15 F.3d 592 (6th Cir. 1994) …………………. 12, 13

Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787 (6th Cir. 2009) …………9, 10, 11

Yeager v. Wilmers, 553 B.R. 102 (S.D. Ohio 2015), aff’d №15–4169 (6th Cir. July 19, 2016)…………. 31

Statutes

U.S. Const. art. III……………………………………………………… passim

U.S. Const. amend. VII……………………………………….…………….. 22

U.S. Const. amend. XIV ……………………………………..……………… 22

Ohio Rev. Code § 2307.382…………………………………………………. 38

Ohio Rev. Code § 2307.71……………………………………… 32, 33, 34, 36

Other Authorities

30 Ohio Jurisprudence 3d Damages § 15 (Mar. 2019)…………………….. 18

Black’s Law Dictionary (4th Pocket ed. 2011)………………………….. 35, 36

Restatement (Second) of Torts § 7(1) (1965) ………………………………7

S.Rep. 109–14, at 14 (2005)…………………… ……………………..…… 45

Rules

Fed. R. Civ. P. 8………………………………………………………… 25, 27, 28

Fed. R. Civ. P. 12……………..……………………………………………. passim

Fed. R. Civ. P. 15……………………………………………………………….. 48

Fed. R. Civ. P. 23……………………………………… …………………………………. passim

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INTRODUCTION

If ever behavior warranted scrutiny from a court, Defendants’ behavior is it. Defendants created chemical compounds that do not exist in nature and exposed the world to them — without warning, without asking permission, without regulation, without concern for the damage they were doing. These chemicals have entered the bodies of nearly every person in the United States, including Plaintiff Kevin Hardwick, without their knowledge or consent. These chemicals are harmful to humans, and Defendants knew it for decades, but didn’t tell anyone. They kept on releasing their chemicals into the world, knowing and fully expecting that their chemicals would get into, stay in, and build up in more and more people. In essence, Defendants used the bodies of hundreds of millions of Americans as their own toxic waste dumps without their knowledge or permission. The nature and extent of the resulting injury is unprecedented in scope, severity, and sheer brazenness.

Now Defendants argue that because they have injured virtually everyone in the United States, they cannot be held responsible for anyone’s injuries within the scope of the American judicial system. They think they have figured out how to get away with it — if you hurt everyone, they claim, then the Constitution prevents anyone from suing you in the United States because no one has standing. Thus, Defendants hope, neither this Court, nor any court, can ever hold Defendants accountable for poisoning everyone. They believe that their activities are beyond the reach of even the most basic tools of the American justice system — investigation and discovery. Defendants’ theory is as audacious as it is wrong — the Constitution does not permit every suit, but it has never been interpreted to protect tortfeasors because they injure just too many people.

Defendants try to wish away the fact that Mr. Hardwick, along with nearly every other American, has PFAS in his body. It will stay in his body, and it will continue to accumulate.

PFAS is a part of him now. He did not consent to having it put into his body or blood. He was never warned that it might get in and stay in him or that it would change the makeup of his body. He never had a chance to avoid it. Mr. Hardwick has already been injured; we just do not yet know all of the consequences of that injury or how severe it will be. (And when he one day learns the full severity of his injuries, Defendants will claim that Mr. Hardwick should have sued earlier.) This is no different than if Defendants had snuck into Mr. Hardwick’s bedroom while he was sleeping and strapped a time bomb full of explosives to his chest, set the timer, and walked away.

Defendants are telling this Court that even though they put their invention inside Mr. Hardwick, and even though it will stay there and the amount will increase over time, and even though the chemical has permanently altered Mr. Hardwick’s body without his consent, and even though the chemical has known negative health consequences, they aren’t liable because Mr. Hardwick isn’t injured enough yet. In other words, the time bomb they strapped to his chest and set simply has not exploded yet. That notion does not hold up under the law.

Defendants also are using their claimed ignorance of the human health effects of PFAS as a sword. They have intentionally refused to study the human health effects of their chemicals, because they believe it is to their benefit not to know what harm they are causing. This is no different than if the Defendants had developed and designed the explosives strapped to Mr. Hardwick’s chest and then told him they had no obligation to figure out or tell him what those explosives would do, how to turn the timer off, or when the timer was set to explode. The Court should brush aside this cynical approach.

FACTS

Mr. Hardwick has worked as a firefighter in Ohio for more than 40 years. During that time, he used firefighting foams containing per- and polyfluoroalkyl substances (collectively, “PFAS”)1 and equipment and gear treated with PFAS. He was exposed to PFAS through those and other materials. The PFAS has entered his body and accumulated in his blood serum. (Compl. [ECF №1] ¶ 4.)2 Mr. Hardwick did not know that PFAS was infiltrating his body, nor did he consent to it. He is not alone. He seeks to represent himself and a class of every other person residing in the United States who has PFAS in their blood serum. (Compl. ¶ 91.)

Defendants are the companies responsible for unleashing PFAS on the world and continuing to do so, despite knowing its harmful health effects. Each of them marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, sold, and/or otherwise handled and/or used PFAS. (Compl. ¶¶ 5–29.)

PFAS is a class of man-made chemicals that is not found in nature. PFAS was developed in the middle of the last century, and was being mass produced by the early 1950s. PFAS is

1 PFAS includes, but is not limited to, perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonic acid (“PFOS”) and related chemicals, including but not limited to those that degrade to PFOA and/or PFOS, and including but not limited to C3-C-15 PFAS chemicals, such as perfluorohexanesulfonate (PFHxS), perfluorononanoate (PFNA), perfluorobutanesulfonate (PFBS), perfluorohexanoate (PFHxA), perfluoroheptanoate (PFHpA), perfluoroundecanoate (PFUnA), perfluorododecanoate (PFDoA), HFPA Dimer Acid (CAS # 13252–13–6/C3 Dimer Acid/P-08–508/FRD903/GX903/C3DA/GenX), and HFPA Dimer Acid Ammonium Salt (CAS# 62037–80–3/ammonium salt of C3 Dimer Acid/P-08–509/FRD902/GX902/GenX). (Compl. ¶ 1.) 2 At the request of certain Defendants, Plaintiffs are seeking leave to amend the complaint contemporaneous with this Opposition in order to (1) remove Dyneon, LLC as a defendant and (2) add AGC Chemicals Americas, Inc. in place of its foreign parent, AGC, Inc. f/k/a Asahi Glass Co. Ltd. (See ECF Nos. 89, 90, 92.) The substantive allegations remain unchanged from the original Complaint (ECF №1), which is cited here.

biopersistent — it stays in a body for a very long time — and bioaccumulative — more and more of it accumulates in a body over time. (Compl. ¶¶ 36–37, 48.)

PFAS causes significant adverse health effects, including kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, preeclampsia, and high cholesterol. (Compl. ¶ 61.) It is known to cause permanent subcellular injuries — adhering to and becoming part of the human body. (Compl. ¶ 65.) Defendants — each of them — learned of various studies and data indicating that exposure to PFAS have significant negative impacts on human health, including increased risks of cancer, hormone changes, lipid changes, ulcerative colitis, preeclampsia, medicallydiagnosed high cholesterol, and thyroid and liver impacts. (Id. at ¶¶ 44–51, 56–57, 61–62, 65–67.)

The Defendants have known about the dangers of PFAS for many decades. But they intentionally and purposefully continued to manufacture PFAS and release it into the environment. (Id. at ¶¶ 5–29, 43, 44–51, 54, 56–57, 61–62, 65–67.) Although Defendants were well aware of the dangers and risks of PFAS, they withheld that information from the public and regulators, and actively misled the public and regulators as to such dangers and risks. (Id. at ¶¶ 47, 52, 58–62, 66–75.)

Defendants have caused PFAS to be dispersed throughout the United States and to enter the bodies of Mr. Hardwick and nearly every resident of the United States. The PFAS will stay in their bodies, permanently altering their bodies, and accumulating over time. Defendants claim ignorance of what PFAS will do to Mr. Hardwick and the class. Mr. Hardwick and the class ask this Court to require Defendants to find out by studying diligently the health effects of their own chemicals.

ARGUMENT

I. Mr. Hardwick Has Standing.

A. Mr. Hardwick Has Plausibly Pleaded Injury in Fact.

Mr. Hardwick recognizes that this Court does not have jurisdiction over every lawsuit or perceived wrong. He must show “injury in fact.” “To establish an injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1548 (2016) (internal quotation marks and citation omitted). Defendants refuse to recognize that Mr. Hardwick has pleaded an injury — a significant one — the unwanted presence of a man-made chemical toxin in his blood, caused by Defendants’ actions, without his consent, that persists, continues to accumulate, and has altered the structure of his blood. That concrete and present injury, coupled with the additional imminent harm that will continue to manifest as the chemicals continue to accumulate and interact synergistically, is more than sufficient to establish an injury in fact. Spokeo, 136 S.Ct. at 1549 (both intangible injuries and the risk of real harm can satisfy the concreteness requirement); see also Baker v. Saint-Gobain, 232 F. Supp. 3d 233, 252 (N.D.N.Y. 2017) (blood accumulation of PFOA is an injury sufficient to sustain a negligence claim).

Defendants argue that because Mr. Hardwick has not yet manifested any outward symptoms of a disease or illness, he has failed to allege an injury in fact for purposes of Article III standing. (Def’s. Joint Mot. to Dismiss [ECF №67] (“Joint Mot.”) at 6–9.) That argument not only misapprehends what is required to plead an injury in fact, but it also mischaracterizes or simply ignores Mr. Hardwick’s allegations. Mr. Hardwick alleges that Defendants’ actions resulted in the contamination of his and the class members’ blood with non-naturally-occurring

toxins that remain in their bodies and will continue to accumulate for years to come. (Compl. ¶¶ 111, 118, 131, 133.) That persistent contamination and bioaccumulation has altered his blood structure and is, in essence, a ticking time bomb of imminent and myriad additional injuries. It is that concrete injury — the presence, persistence, and accumulation of a man-made, persistent toxin currently in his blood — for which Mr. Hardwick seeks relief.

It is simply not accurate, as Defendants claim, that Mr. Hardwick has not alleged any “adverse impacts,” nor is it true that he alleges only a “future injury.” (Joint Mot. at 7.) As stated above, Defendants fail to understand that the injury has already occurred by virtue of the invasion and accumulation of PFAS in Mr. Hardwick’s blood. He is not required, for standing purposes, to allege the manifestation of any outward physical condition or that he has been diagnosed with a specific disease as a result of that invasion. He does not need to wait for symptoms to manifest before he can allege an injury. If Defendants’ argument were correct, then an individual with a ticking time bomb strapped to his chest would have no basis to seek relief because he does not have a “concrete” injury unless and until that bomb explodes. That cannot be what the law requires.

Defendants’ contention that Mr. Hardwick does not have standing without allegations that he has already manifested a diagnosable disease misstates the standard the Supreme Court has established. In Spokeo, Defendants’ polestar, the Court reaffirmed the concept that an injury need not outwardly manifest itself in order to qualify as an injury in fact. 136 S.Ct. at 1549 (“Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.”). In other words, Mr. Hardwick need not point to a specific diagnosis or a visible physical condition to sufficiently plead an injury, a concept which courts throughout the country have recognized. See, e.g., Sadler

v. PacifiCare of Nev., 340 P.3d 1264, 1269–70 (Nev. 2014); Exxon Mobil Corp. v. Albright, 71 A.3d 30, 80 (Md. 2013); Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 822 (Cal. 1993); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 977 (Utah 1993) (“Although the physical manifestations of an injury may not appear for years, the reality is that many of those exposed [to a contaminant] have suffered some legal detriment.”). His allegations that Defendants caused a man-made toxic chemical to enter his blood and alter its structure, which must be taken as true at this stage in the litigation, are more than sufficient.3

Indeed, the unwanted entry, continued presence, and accumulation of a synthetic, toxic chemical in Mr. Hardwick’s blood is a present and concrete injury, in and of itself. See Baker, 232 F. Supp. 3d at 252. A legally cognizable injury is the “invasion of the legally protected interest of another.” Restatement (Second) of Torts § 7(1) (1965); see also Spokeo, 136 S.Ct. at 1548. Mr. Hardwick’s allegations that Defendants put harmful chemicals in his blood, undoubtedly qualifies as an invasion of his legally protected interests. Spokeo does not require Mr. Hardwick to wait until the time bomb in his blood has exploded before he can seek injunctive relief, at which point it would obviously be too late. The presence and accumulation of PFAS in his blood without his consent clearly satisfies the standard for demonstrating a concrete injury. See Spokeo, 136 S.Ct. at 1549 (intangible injuries can be sufficiently concrete to satisfy the injury in fact requirement); Baker, 232 F. Supp. 3d at 252.

Defendants also argue that alleging the “mere existence” of something harmful is insufficient to establish a concrete injury for purposes of Article III standing. As an initial matter,

3 Spokeo involved a technical violation of a federal statute, where no injury arose beyond the violation — a far cry from this case, in which Defendants have affected the anatomy of nearly every human. And yet even there, the Supreme Court was careful to say that is was not ruling that intangible injuries could not be concrete. Spokeo does not say what Defendants wish it did.

Mr. Hardwick alleges much more than the “mere existence” of a toxin in his blood. (Compl. ¶¶ 4, 39, 40, 46, 50, 51, 56, 61, 62, 63, 64, 65, 81, 84.) However, even if that were his only allegation, the cases Defendants cite for this argument are entirely inapposite. The plaintiffs in each of those cases alleged technical violations of consumer protection statutes based on the “mere presence” of inaccurate information in a database, with no other proof to support their allegations of injury. See Owner-Operator Indep. Drivers Ass’n, Inc. v. U.S. Dep’t of Transp., 879 F.3d 339, 347 (D.C. Cir. 2018); Rubin v. J. Crew Group, Inc., №16–2167, 2017 WL 1170854, at *7 (D.N.J. Mar. 29, 2017). The alleged injuries in those cases are nothing like Mr. Hardwick’s allegations that Defendants have caused a man-made toxic chemical to accumulate in his bloodstream. Mr. Hardwick has not alleged the “mere presence” of some innocuous misinformation. He has alleged that Defendants’ actions polluted his blood and permanently altered its structure — something much more than a technical violation of a statute.

In addition to those allegations of a present injury, however, Mr. Hardwick has also plausibly pleaded that additional physical injuries resulting from that contamination are imminent. The Complaint demonstrates that the presence and accumulation of those toxins has been linked with the risk of numerous potential adverse health effects, including hormone changes, lipid changes, and impacts on the liver and thyroid, and cancer. (Compl. ¶¶ 39, 40, 46, 50, 51, 56, 61, 65.) 4

The risk of imminent harm, even absent present physical injury, can satisfy the requirement of concreteness for standing purposes. Spokeo, 136 S.Ct. 1549. “[T]he law has long

4 The C8 Science Panel already has confirmed probable links between one such PFAS chemical, PFOA, and six different diseases and Mr. Hardwick is not suggesting that those particular links require any further study or confirmation. (See, e.g., Compl. at ¶¶ 61, 88.)

permitted recovery by certain tort victims even if their harms may be difficult to prove or measure.” Id. There is no question that Mr. Hardwick’s allegations, taken as true, establish that he is at risk of additional imminent harm as a result of Defendants’ actions. The continued presence and accumulation of PFAS in his blood puts him at imminent risk of developing any or all of the range of potential diseases and conditions set forth in his Complaint. Defendants’ actions have placed a ticking time bomb in Mr. Hardwick’s body. The law does not require him to wait until that bomb explodes to seek appropriate relief. Id.5

B. Mr. Hardwick’s Injury Is Fairly Traceable to Defendants.

Defendants claim that the PFAS inside Mr. Hardwick is not fairly traceable to them as a matter of law because he cannot yet identify which Defendants’ PFAS has altered his body without his consent. (See Joint Mot. at 10.) This is a corollary to their injury-in-fact argument — because we all harmed everyone, Defendants say, we are immune from suit by anyone. That is not the law of traceable injury.

Mr. Hardwick must allege “a fairly traceable connection between [his] injury and the complained-of conduct of the defendant[s].” Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787, 796 (6th Cir. 2009). The traceability requirement is not focused on whether Defendants “caused” Mr.

5 The Rhodes court addressed this issue in connection with PFOA in 2008, without the benefit of the C8 Science Panel findings or the individual PFOA trials in this Court. The Rhodes court was not prepared at that time to permit the case to move beyond summary judgment because the plaintiffs did not have manifest disease and could not yet establish a significantly increased risk of disease. Rhodes v. E.I. du Pont de Nemours & Co., 657 F. Supp. 2d 751, 758 (S.D. W. Va. 2009), aff’d in part, appeal dismissed in part, 636 F.3d 88 (4th Cir. 2011). The C8 Science Panel has filled in the important missing data — Defendants’ toxins are linked to serious diseases. (Compl. ¶¶ 61, 88.) This case is the logical extension of the findings of the Rhodes court. Now that the link to disease is established, Mr. Hardwick should be able to pick up where Mr. Rhodes left off and pursue Defendants for contaminating his blood with disease-causing toxins.

Importantly, too, the Rhodes court reached its conclusion at the class certification and summary judgment phase. That case was not dismissed under Rule 12(b).

Hardwick’s injury in the liability sense. Id. The focus is whether Mr. Hardwick’s injury is fairly traceable to the Defendants’ conduct rather than the conduct of a third party not before the court. Id.

Mr. Hardwick has alleged “a fairly traceable connection” between his injury and Defendants’ conduct. Wuliger, 567 F.3d at 796. Mr. Hardwick plausibly alleges that each of the Defendants marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, sold, and otherwise handled and used PFAS in such a way as to result in the contamination of Mr. Hardwick’s and the other class members’ blood and bodies. (Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37.) This allegation is sufficient to establish traceability for Article III purposes.

Mr. Hardwick, nonetheless, provides numerous additional allegations regarding the connection between the presence of PFAS in his blood and body and Defendants’ conduct. (See, e.g., Compl. ¶¶ 36–43, 48, 53–54, 62–64, 69–70, 77.) Mr. Hardwick alleges that:

 PFAS is a class of non-naturally-occurring, man-made chemicals and that prior to the commercial development and large-scale manufacture and use of PFAS starting in the early 1950s PFAS was not present in human blood. (Id. ¶¶ 36, 38.)

 Defendants released PFAS into the environment, including the air, surface waters, ground water, soils, and landfills, through their manufacturing and other commercial operations. (Id. ¶ 42.)

 Defendants knew that the public would be exposed to the PFAS that they manufactured or used, that the public was, in fact, exposed to Defendants’ PFAS, and that once PFAS enters someone’s body, it accumulates and remains there for years. (See id. ¶¶ 42–43, 48, 62–63.)

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 There is no naturally-occurring or normal level of PFAS in human blood and that all PFAS present in human blood is therefore a direct and proximate result of Defendants’ conduct. (Id. ¶ 64.)

Defendants contend that Mr. Hardwick cannot demonstrate standing without alleging that a particular Defendant caused a particular type of PFAS to enter his or any other class members’ blood. (Joint Mot. to Dismiss at 10–11.) Neither the Sixth Circuit nor this Court requires such specificity to demonstrate standing. See Wuliger, 567 F.3d at 796; see also Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 543 (6th Cir. 2004) (finding traceability where the plaintiffs alleged that the defendants exceeded effluent discharge limitations and presented evidence that such discharges could cause conditions similar to those at issue);

Spencer v. Blackwell, 347 F. Supp. 2d 528, 534 (S.D. Ohio 2004) (finding traceability where the defendants’ collective actions allegedly resulted in challengers being placed at polls).

Defendants inaccurately claim that Allen v. Wright, 468 U.S. 737, 758 (1984) supports their argument against traceability. (Joint Mot. at 10.) In Allen, parents of African American public school children alleged that the IRS had not adopted sufficient standards and procedures to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools. Id. at 739. The Supreme Court held that the parents lacked standing to sue. Id. at 740.

Nowhere in the decision does the Court mandate that a plaintiff must allege the traceability of his injury with certainty. See id. at 756–66. Rather, the Court concluded that the ability of the public school children to receive a desegregated education was not fairly traceable to the IRS’s tax-exemption determinations, because the IRS’s actions had an attenuated impact on the public schools’ desegregation efforts and that the actions of third parties (such as the private schools and the parents of the children attending those schools), would largely determine

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the success of the public schools’ desegregation efforts. See id. at 757–58. The Court also based its traceability decision on the concern that the parents’ requested relief — ordering the IRS to deny tax-exempt status to a broader class of private schools — would, by impeding the Executive Branch’s ability to faithfully execute the laws, create separation of powers problems. See id. at 746–47, 759–61.

Here, unlike in Allen, the connection between Defendants’ conduct and Hardwick’s injury is direct. Mr. Hardwick alleges that Defendants marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, sold and otherwise handled and used PFAS and that these actions resulted in PFAS contaminating his blood. (Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37.) Also unlike the situation in Allen, Mr. Hardwick’s alleged injury did not result from the independent actions of third parties not before the Court. Mr. Hardwick alleges that Defendants are the entities that harmed him. (See id.) This case, moreover, does not involve a separation of powers issue. Unlike the plaintiffs in Allen, Mr. Hardwick does not seek to enjoin the action of a federal agency or request an order directing that an agency alter its policies.

Defendants also contend that Mr. Hardwick lacks standing because it is not plausible that only Defendants are responsible for PFAS entering the blood of the putative class members. (Joint Mot. at 10.) Defendants’ disagreement with Mr. Hardwick’s allegations is not a basis for dismissing a claim under Rule 12(b)(1). When deciding a 12(b)(1) motion, a court must accept all material allegations as true and draw all inferences from those allegations in the light most favorable to the nonmoving party. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Mr. Hardwick has alleged that Defendants are responsible for PFAS entering his and the other putative class members’ blood. (Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37.) Mr.

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Hardwick supports this assertion with numerous material allegations. (See, e.g., Compl. ¶¶ 36– 43, 48, 53–54, 62–64, 69–70, 77.) To demonstrate Article III standing, and for purposes of deciding the present Rule 12(b)(1) motion, these allegations are more than sufficient.

Defendants further argue that, according to Mr. Hardwick’s allegations, “[m]any other entities allegedly had a role in causing PFAS to enter the blood of the 320 million potential class members.” (Joint Mot. at 11.) Defendants are mistaken about Mr. Hardwick’s allegations. As noted above, Mr. Hardwick alleges that Defendants — not third parties outside of the case — caused his and the other putative class members’ injuries. (Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37.) To the extent that Defendants disagree with Mr. Hardwick’s allegation that they caused his injuries, Defendants could have asserted a factual challenge to the Court’s subject matter jurisdiction. Ritchie, 15 F.3d at 592, 598. They didn’t. Instead, Defendants challenged the facts as pleaded, under which the Court must accept Mr. Hardwick’s material allegations as true and construe them in the light most favorable to Mr. Hardwick. See id. Under this standard, the Court must accept Mr. Hardwick’s allegation that Defendants — and not some other group of third parties — caused his injuries.

Because Mr. Hardwick has properly alleged “a fairly traceable connection” between his injuries and Defendants’ challenged conduct, the Court should reject Defendants’ traceability argument and hold that Mr. Hardwick has standing to bring this case.

C. Mr. Hardwick’s Injuries are Redressable.

Defendants contend that Mr. Hardwick has not alleged a redressable injury. (Joint Mot. to Dismiss at 11, ECF №67–1.) Defendants are wrong. An injury is redressable for Article III standing purposes if a court order can provide “substantial and meaningful relief.” Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 715 (6th Cir. 2015) (quoting Larson v. Valente, 456 U.S.

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228, 243 (1982)). “[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.” Id. (quoting Larson, 456 U.S. at 244 n.15).

Mr. Hardwick has adequately alleged redressability. He alleges that Defendants’ conduct caused PFAS to enter his blood and body, that he fears the unknown effects of having PFAS in his blood, and that the establishment of a science panel to study the effect of PFAS in human blood will partially redress his injuries. (See Compl. ¶¶ 75, 84, 139–141.) The science panel requested by Mr. Hardwick would be “tasked with independently studying, evaluating, reviewing, identifying, publishing, and notifying/informing” Mr. Hardwick and the other class members of any “causal connection between any single or combination of PFAS in human blood and any injury, human disease, adverse human health impact, and/or risk sufficient to warrant any personal injury compensation or future diagnostic medical testing, including medical monitoring.” (Id. ¶¶ 75, 141.)

The establishment of the science panel would redress Mr. Hardwick’s fear of the unknown effects of having PFAS in his blood, and would establish whether a causal connection exists between PFAS in human blood and any injury, disease, or adverse health impact or risk. (See id.) The establishment of the science panel would also begin to redress Mr. Hardwick’s injury of having PFAS in his blood. The science panel’s conclusions on causation would be “definitive and binding on all parties” and would likely establish, at least as to causation, Mr. Hardwick’s entitlement to monetary damages from Defendants for their contamination of his blood with PFAS. (Id. ¶ 141; see also id. ¶ 61 (recounting the C8 Science Panel’s finding that human exposure to 0.05 parts per billion or more of one PFAS — PFOA — in drinking water for one year or more had probable links with certain human diseases)). Mr. Hardwick’s requested relief is

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substantial and meaningful and would redress, at least partially, Mr. Hardwick’s injuries. See Doe v. DeWine, 910 F.3d 842, 850–51 (6th Cir. 2018) (holding that a plaintiff’s requested relief, even if not a complete remedy for the plaintiff’s injury, establishes redressability where the relief would “remove one barrier” to the plaintiff obtaining that remedy); Parsons, 801 F.3d at 715–17 (holding that plaintiffs could establish redressability where the requested relief would likely alleviate, at least in part, the plaintiffs’ injury); Fowler v. Johnson, №17–11441, 2018 WL 1737122, at *6 (E.D. Mich. Apr. 11, 2018) (finding redressability where a decision in the plaintiffs’ favor would put plaintiffs “one step closer” to remedying their injuries).

Defendants next argue that Mr. Hardwick lacks standing because the establishment of a science panel does not “directly” remedy Mr. Hardwick’s injuries. (Joint Mot. at 12.) Contrary to Defendants’ assertion, there is no Article III requirement that a plaintiff’s requested relief “directly” remedy the plaintiff’s injury. Yet, even if there were such a requirement, Mr. Hardwick’s allegations would satisfy it because, as explained above, his requested relief directly redresses his injuries.

Defendants cite two cases for the proposition that a request for relief must directly remedy an injury. (Id. at 11–12 (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998); Linda R.S. v. Richard D., 410 U.S. 614, 618 (1973)).) Neither case supports that proposition.

In Linda R.S., the plaintiff challenged Texas’s interpretation of a criminal statute that penalizes parents who willfully fail to support their children. 410 U.S. at 614–16. Noting that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another,” the Court held that the plaintiff lacked standing because she made “an insufficient showing of a direct nexus between the vindication of her interest and the enforcement of the

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State’s criminal laws.” Id. at 619. The plaintiff could not establish a “direct nexus” because she could not show that she had “sustained or [was] immediately in danger of sustaining some direct injury as a result of ([the] statute’s) enforcement.” Id. at 618 (quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923)). Linda R.S., in other words, dealt as much with traceability as redressability. See id. (“Here, appellant has made no showing that her failure to secure support payments results from the nonenforcement, as to her child’s father, of Art. 602.”). And nowhere in its decision did the Court hold that a request for relief must directly remedy an injury. See id. at 614–19.

The Court did not hold that a request for relief must directly remedy an injury in Steel Co. either. In that case, the Court held that respondent lacked standing because, among other things, respondent’s gratification by seeing the petitioner punished for its violation of a federal law did not redress a cognizable Article III injury. Steel Co., 523 U.S. at 107. The only discussion in Steel Co. of direct versus indirect actions comes from Justice Stevens’s concurrence, in which he noted that in other cases where the Court found a lack of redressability, the plaintiff had been indirectly injured by the defendant (e.g., where the injury was dependent on the action of a third party). Id. at 125–26 (Stevens, J., concurring). Neither the Court’s decision nor Justice Stevens’s concurrence suggests that a request for relief must directly remedy an injury.

Defendants also contend that Mr. Hardwick cannot establish redressability because his requested relief would not benefit him any more than it would benefit “the public at large.” (Joint Mot. at 12 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 574 (1992)).) Defendants’ position is cynical. They ask this Court to rule as a matter of law that because they’ve injured everyone, they cannot be held accountable by anyone. Their position also is contrary to the law.

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The Supreme Court’s statement that a benefit to the “public at large” does not create an Article III case or controversy applies to cases where the plaintiff raises “only a generally available grievance about government” and alleges “only harm to his and every citizen’s interest in proper application of the Constitution and laws.” Lujan, 504 U.S. at 573–74. Mr. Hardwick’s claims do not raise a generally available grievance about government, and Mr. Hardwick does not allege only harm to his and every other citizen’s interest in the proper application of the Constitution and laws. Defendants, none of which is a government entity or tasked with applying the Constitution or laws, harmed Mr. Hardwick by causing PFAS to enter his blood and body; Mr. Hardwick now seeks relief that will redress, at least in part, the injuries that he suffered. (Compl. ¶¶ 5–29, 37, 138–141.)

Moreover, Mr. Hardwick will benefit from the establishment of the science panel in a way that the “public at large” will not. Although most people in the United States have PFAS in their blood, not everyone does. (Compl. ¶ 63.) And, in part because of Defendants’ misinformation efforts, many of the people who do have PFAS-contamination do not yet know that it is biopersistent and bioaccumulatie or that it is linked to human disease. (See id. ¶¶ 48, 58– 61, 63, 65–68, 71–75, 78.) Mr. Hardwick knows that he has PFAS in his blood and fears the effect that presence will have on his health. (Id. ¶¶ 4, 84.) As such, the science panel’s report will resolve his fears about the unknown effects of having PFAS in his blood. And unlike the small portion of the “public at large” that does not have PFAS in its blood, Mr. Hardwick will benefit from the establishment of the science panel by the panel’s conclusions. Mr. Hardwick has sufficiently alleged redressability and demonstrated his standing to bring this case.

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II. The Complaint Plausibly Pleads Injury Under Ohio Law.

Defendants’ argument that Mr. Hardwick has not alleged a sufficient injury under Ohio law is misguided in a number of ways. First, Defendants focus entirely on what Ohio law considers a “compensable” injury, that is, one for which a plaintiff may seek monetary damages. (Joint Mot. at 13.) Defendants curiously attempt to support this argument by citing initially to a provision of a treatise on damages under Ohio law, which states only that “damages must be shown with certainty,” and says nothing of what is required to plead a concrete injury. Id. citing 30 Ohio Jurisprudence 3d Damages § 15 (Mar. 2019).

Mr. Hardwick is seeking equitable relief, not monetary damages, and therefore, he is not required to plead a “compensable” injury in the sense that Defendants use the term. He has, however, alleged a sufficiently concrete injury in the form of an unwanted invasion of his blood by what amounts to a ticking time bomb that may explode at any time. Defendants have failed to demonstrate, or cite any case law indicating, that those allegations are insufficient, as a matter of Ohio law, to establish an injury warranting equitable relief.

The next, and more glaring, problem with Defendants’ argument is that, once again, they combine an overstatement of the standard required to plead an injury with a deliberate mischaracterization of Mr. Hardwick’s allegations. Contrary to Defendants’ contention that Ohio law “has an even higher threshold than Article III” for pleading an injury, Ohio simply “requires demonstration of a concrete injury in fact, rather than an abstract or suspected injury.” Orser v. City of Perrysburg, No. WD–16–038, 2017 WL 3017051, at *2 (Ohio Ct. App. July 14, 2017). Ohio law defines injury in fact as “an invasion of a legally protected interest that is concrete and particularized, as well as actual or imminent, not hypothetical or conjectural.” Bourke v. Carnahan, 840 N.E.2d 1101, 1105 (Ohio Ct. App. 2005) (citing Lujan, 504 U.S. at 560). Thus,

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rather than establishing some additional or higher standard that Mr. Hardwick must meet, Ohio law’s requirements for pleading an injury are remarkably similar to the requirements for Article III standing. See Spokeo, 136 S.Ct. at 1548.

Defendants contend that Ohio law requires Mr. Hardwick to allege “an identifiable condition” to plead an injury, but cite no cases that support that specific claim. (Joint Mot. at 13.) Instead, Defendants cite to a case holding that “Ohio law does not permit recovery for the ‘mere possibility’ that a plaintiff may develop a condition.” Bouchard v. Am. Home Prods. Corp., 213 F. Supp. 2d 802, 807 (N.D. Ohio 2002). Prohibiting recovery for a “mere possibility” is not the equivalent of requiring “identifiable condition” to establish an injury.

In fact, the Sixth Circuit has recognized the possibility that a plaintiff could recover under Ohio law for the “increased risk” of disease as the result of the defendant’s actions. Hirsch v. CSX Transp., Inc., 656 F.3d 359, 363 (6th Cir. 2011). As such, Defendants’ claim that an identifiable condition is a prerequisite for an injury is a significant overstatement of what Ohio law requires.

Perhaps more importantly, however, Defendants yet again attempt inappropriately to reframe and mischaracterize Mr. Hardwick’s allegations. Mr. Hardwick certainly has alleged significantly more than a “mere possibility” that he will be injured at some unknown time in the future. He has alleged a present injury in the form of the invasion, persistence, and bioaccumulation of man-made toxic chemicals in his blood. (Compl. ¶¶ 111, 118, 131, 133.) He has also alleged, with supporting data, imminent (as opposed to “merely possible”) additional injuries that will manifest in the form of numerous diseases and conditions as a result of the persistence and accumulation of the chemicals in his blood. (Compl. ¶¶ 39, 40, 46, 50, 51, 56, 61, 65.)

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It is significant, too, that the cases that Defendants cite were decided on summary judgment. Those cases were based on the conclusion that the plaintiffs had not presented sufficient evidence, at the summary judgment stage, to establish the existence of the injuries they had alleged. See Bouchard, 213 F. Supp. 2d at 807–08; Madej v. Maiden, №2:16-cv-658, 2018 WL 5045768, at *14–15 (S.D. Ohio Oct. 17, 2018); Baker v. Chevron USA, Inc., №1:05–CV– 227, 2009 WL 3698419, at *3–5 (S.D. Ohio Nov. 4, 2009). They do not, therefore, support Defendants’ contention that Mr. Hardwick has not adequately pleaded a cognizable injury under Ohio law. He has alleged that he has a present injury in the form of the deleterious alteration to the structure of his blood, as well as injuries in the form of the imminent manifestations of disease and other harmful effects on his health as a result of the contamination of his blood. These allegations, accepted as true, are more than sufficient to plead an injury under Ohio law. See Bourke, 840 N.E.2d at 1105–06; see also Kiser v. Reitz, 765 F.3d 601, 606 (6th Cir. 2014).

III. This Court Has the Authority to Award the Requested Relief.

A. The Relief Mr. Hardwick Seeks is Available in Federal Court.

Defendants argue that the Court cannot award the relief Mr. Hardwick seeks simply because it is an “unusual” form of relief that was not traditionally accorded by courts of equity at the time of the Constitution’s ratification. In so arguing, however, Defendants once again misstate the applicable standard and fail to take account of the Court’s broad powers to award appropriate relief.

Contrary to Defendants’ position that the entirety of currently available equitable remedies was in existence at the time of the Constitution’s ratification, “[t]raditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.” Miliken v. Bradley, 433 U.S. 267, 288

(1977). In other words, rather than being bound by a set of prescribed remedies, courts operating in equity have the flexibility to adjust to the needs of particular case and to craft an appropriate remedy. “Indeed, ‘[i]n equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests.’” Santos v. Smith, 260 F. Supp. 3d 598, 615 (W.D. Va. 2017) (quoting Lemon v. Kurtzman, 411 U.S. 192, 200–01 (1973) (plurality opinion)). See also EEOC v. Wilson Metal Casket Co., 24 F.3d 836, 842 (6th Cir. 1994) (noting district courts’ “broad discretionary powers to craft an injunction” when sitting in equity); Crutchfield v. U.S. Army Corps of Engineers, 192 F. Supp. 2d 444, 452 (E.D. Va. 2001) (highlighting that a district court has “wide discretion to fashion appropriate injunctive relief in a particular case”).

Defendants argue that the Court cannot award Mr. Hardwick the relief he seeks because it would have been “unheard of” for an English Chancery Court hundreds of years ago to commission a science panel to make determinations about the effects of PFAS blood contamination. True enough, but that is not the appropriate measure of available relief.

Federal courts regularly use their equitable authority to craft practical injunctive relief aimed at remediating unique controversies and problems. There are countless examples of courts crafting specific and unique forms of equitable relief that surely would have been “unheard of” at the time of the Constitution’s ratification. See, e.g., Brown v. Plata, 563 U.S. 493 (2011) (affirming remedial order requiring reduction in prison population to address inadequacy of mental health and medical services); M.D. by Stukenberg v. Abbott, 907 F.3d 237, 276–283 (5th Cir. 2018) (approving certain targeted remedial orders, including the creation of new monitoring programs, aimed at addressing harms caused by inadequacies in management of state foster care system); Kelly v. Metro. Cnty. Bd. of Educ. of Nashville and Davidson Cnty., Tenn., 687 F.2d

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814, 818–19 (6th Cir. 1982) (ordering the use of specific mathematical formulas in determining student populations and the creation of new elementary schools to address racial segregation in public schools).

Defendants’ actions caused a toxic chemical to invade Mr. Hardwick’s blood, and Mr. Hardwick has requested a scientific panel to study the extent of the harm that invasion has inflicted and will continue to inflict. This is precisely the type of situation that calls for the Court to “eschew rigid absolutes and look to the practical realities” of the problem to craft the appropriate relief. See Santos, 260 F. Supp. 3d at 615. “Once invoked, the scope of a district court’s equitable powers is broad, for breadth and flexibility are inherent in equitable remedies.” Brown, 563 U.S. at 538 (internal quotation marks and citation omitted). There could hardly be a more appropriate scenario than the present one for the Court to exercise those broad and flexible powers to assist it in determining the extent of the harm Defendants have caused. This problem and the specific harm Mr. Hardwick alleges has escaped abatement by the legislative and executive branches (primarily because of the purposeful acts and/or omissions of these Defendants), leaving the courts as the last and only resort for him and millions more like him. Rather than waiting for the ticking time bomb in his blood to explode and then seek relief (at which point it would be too late), Mr. Hardwick is asking the Court to use its broad and flexible equitable authority to shape a remedy to fit the unique harms he has suffered and will continue to suffer.

B. The Relief Mr. Hardwick Seeks Does Not Violate the Seventh Amendment, Article III, or Due Process.

Defendants’ argument that the relief Mr. Hardwick seeks violates the Seventh Amendment is inapplicable here because Mr. Hardwick seeks only equitable relief. The Supreme Court has made clear that the Seventh Amendment right to a jury trial does not apply to cases in

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which only equitable rights are at issue. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 (1989). In determining whether a particular litigant is entitled to a jury trial, the most important factor is whether the remedy sought is legal or equitable in nature. Golden v. Kelsey-Hayes Co., 73 F.3d 648, 659 (6th Cir. 1996). Mr. Hardwick is not seeking monetary damages, and there is no doubt that the injunctive relief he seeks is an exclusively equitable remedy. Therefore, Defendants’ argument that the scientific panel Mr. Hardwick requests would somehow improperly delegate an issue reserved for a jury is entirely inapplicable. Id.

Moreover, nothing in Mr. Hardwick’s Complaint suggests that the scientific panel would replace the Court or improperly and unilaterally decide issues reserved for the Court’s determination. Defendants’ alarmist claims that the scientific panel would “exercise the judicial power” is without merit and, notably, without citation to the facts pleaded in Mr. Hardwick’s Complaint. (Joint Mot. at 19.) Rather than replace the Court, the panel would provide the Court with advice and assistance in addressing the complex scientific issues presented in this case. Any legal conclusions, rulings, or other eventual result that may flow from the panel’s findings or recommendations would remain solely within the Court’s purview.

Defendants’ contentions that the creation of the scientific panel would eliminate the role of this Court in violation of Article III and principles of due process is a blatant misrepresentation and exaggeration of what Mr. Hardwick is requesting. Mr. Hardwick has not asked the Court to delegate any of its authority to the scientific panel, nor has he sought to “supplant the adversarial process” in violation of Defendants’ due process rights. (Id. at 19.) The panel Mr. Hardwick envisions would provide the Court with reports and recommendations, but undoubtedly, the Court would ultimately retain the authority and discretion to adopt, revise, or reject any of those recommendations. The Complaint suggests nothing to the contrary, and

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Defendants’ attempt to take the proposed relief to an illogical extreme should not warrant dismissal of his claims.

IV. Mr. Hardwick Plausibly Pleaded the Elements of His Claims.

Mr. Hardwick has pleaded facts that are more than sufficient to state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Defendants’ arguments misinterpret the relevant case law and again suggest, inaccurately, that they cannot be held liable if they each engaged in the same conduct.

A. Mr. Hardwick Sufficiently Pleaded What Defendants Did to Injure Him.

Defendants contend that Mr. Hardwick’s allegations are insufficient because they purportedly do not identify what each Defendant did to harm Mr. Hardwick. (Joint Mot. at 21.) Contrary to Defendants’ assertions, Mr. Hardwick has alleged how each Defendant harmed him. Mr. Hardwick alleges that each of 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 result in the contamination of Mr. Hardwick’s and the other class members’ blood and bodies. (Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37.)

Defendants take issue with Mr. Hardwick’s allegation that all of the Defendants engaged in the same, or very similar, conduct. (See id. at 21–22.) Defendants’ argument is, again, a variant on their overarching theme that they are beyond the reach of the law because their alleged conduct is too expansive to punish.

There is no legal or equitable basis for Defendants’ assertion that none of them can be held liable if each Defendant engaged in the same conduct. Mr. Hardwick alleges that each Defendant engaged in the same or very similar conduct because, based on the information

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currently available to him, he understands that Defendants in fact engaged in the same or very similar conduct and sometimes coordinated their efforts. (See, e.g., Compl. ¶¶ 59, 133, 134 (alleging that Defendants conspired to, among other things, conceal material facts regarding PFAS so that they could conduct operations and activities that resulted in PFAS contaminating the blood and bodies and Mr. Hardwick and the other class members).) This is not a pleading deficiency.

Although Defendants might disagree with the assertion that they each engaged in the same or very similar conduct, Defendants’ disagreement with Mr. Hardwick’s allegations is not a basis for dismissal. Parsons, 801 F.3d at 701, 706. The Court must accept Mr. Hardwick’s material allegations as true, see id., and, here, Mr. Hardwick has alleged that each Defendant engaged in the same tortious conduct.

Defendants also take issue with Mr. Hardwick’s use of “and/or” to assert certain allegations. (See Joint Mot. at 22–23.) They contend that Mr. Hardwick’s use of “and/or” is impermissible and should result in dismissal. (See id.) Defendants are wrong. There is no heightened pleading requirement for Mr. Hardwick’s claims, nor is there any requirement that Mr. Hardwick’s allegations adhere to a technical form or avoid using certain phrases, such as “and/or.” Fed. R. Civ. P. 8(d)(1). Federal Rule of Civil Procedure 8 mandates that a pleading contain “a short and plain statement of the claim” to relief and “be simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2), (d)(1). Mr. Hardwick’s allegations meet that standard and sufficiently inform Defendants of their tortious conduct.

Defendants cite Bickerstaff v. Lucarelli, 830 F.3d 388, 400–01 (6th Cir. 2016), and Guertin v. Michigan, 912 F.3d 907, 930 n.8 (6th Cir. 2019), for the proposition that a complaint

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containing allegations separated by “and/or” are insufficient to survive a motion to dismiss. (Joint Mot. at 22–23.) Neither case stands for that proposition.

In Bickerstaff, the Sixth Circuit found the assertion that “all Defendants knowingly wrote and/or solicited and/or facilitated and/or processed and/or presented false statements against Plaintiff which falsely informed and guided a Grand Jury to indict her of crimes she never committed” insufficient to sustain a civil conspiracy claim because the plaintiff failed to allege any facts that supported her assertion that the defendants engaged in untruthful conduct. Bickerstaff, 830 F.3d at 400–01. Here, unlike in Bickerstaff, Mr. Hardwick has asserted numerous allegations, in addition to the challenged allegations containing “and/or,” showing the connection between the presence of PFAS in his blood and body and Defendants’ conduct. (See, e.g., Compl. ¶¶ 36–43, 48, 53–54, 62–64, 69–70, 77.)

In Guertin, the Sixth Circuit disregarded an allegation containing “and/or” because the allegation was a “chimerical,” “bare assertion,” not because the allegation contained “and/or.” Guertin, 912 F.3d at 930 n.8. Mr. Hardwick’s allegations are not chimerical, bare assertions. (See, e.g., Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 36–43, 48, 53–54, 62–64, 69–70, 77.) Mr. Hardwick has alleged how each Defendant harmed him and has pleaded in detail the connection between Defendants’ conduct and the PFAS in his body and blood. (See, e.g., id.)

In support of their critique of “and/or,” Defendants also cite Patterson v. Novartis Pharmaceuticals Corp., 451 F. App’x 495, 497–98 (6th Cir. 2011), for the proposition that courts must read “and/or” as “or.” (Joint Mot. at 22–23.) Patterson says no such thing. In Patterson, the plaintiff asserted allegations that, at most, established the possibility that the defendant harmed her. Patterson, 451 F. App’x at 497–98. In support of her product-liability action, the plaintiff asserted that she received infusions of “Aredia [which the defendant

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manufactured] and/or generic Aredia (pamidronate),” which the defendant did not manufacture. Id. at 497. The plaintiff, in other words, alleged that the defendant did, or did not, harm her. See id. The Sixth Circuit found this allegation to be insufficient given the plaintiff’s obligation to plead a plausible, rather than a merely possible, claim to relief. See id. at 497–98. Nowhere in the decision did the Sixth Circuit adopt a broad rule mandating that courts read “and/or” as “or,” so any persuasive value of the case would be limited to situations involving analogous facts.

Unlike the plaintiff in Patterson, Mr. Hardwick has not alleged that Defendants did, or did not, harm him. Mr. Hardwick alleges that Defendants harmed him in one or various ways. (Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37.) No reading of Mr. Hardwick’s allegations, and especially no reading of the allegations when they are viewed in the light most favorable to Mr. Hardwick, fails to implicate Defendants and establish a plausible claim to relief. (See id.)

In further support of their Rule 12(b)(6) argument, Defendants argue that Mr. Hardwick’s use of “and/or” in several of his allegations prevents Defendants from knowing the “specific way” that each of them harmed Mr. Hardwick. (Joint Mot. at 23.) Mr. Hardwick, however, has no obligation under the pleading requirements to identify the “specific way” that each Defendant harmed him. See Fed. R. Civ. P. 8(a)(2), (d)(1).

Defendants cite Marcum v. Jones, №1:06CV108, 2006 WL 543714, at *2 (S.D. Ohio Mar. 3, 2006), in support of their assertion that Mr. Hardwick must identify the “specific way” that each Defendant harmed him. (Joint Mot. at 23.) Marcum does not stand for that proposition. In Marcum, this Court considered a claim involving the alleged denial of access to the courts due to inadequate legal services and supplies provided by a jail. Marcum, 2006 WL 543714, at *1–2. In such cases, the Court explained, a plaintiff “must demonstrate he was actually prejudiced in an

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existing or contemplated legal proceeding.” Id. at *2. The Court found the plaintiff’s allegations to be lacking because he failed “to allege facts showing he was actually impeded in any existing or contemplated lawsuit or that he was harmed in some other specific way by the alleged inadequacies.” Id. This sentence was the Court’s only use of the phrase “specific way,” see generally id., and there is no indication that the Court, through this sentence, altered, or intended to alter, Rule 8’s pleading requirements.

Mr. Hardwick has alleged what each Defendant did to harm him, (Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37), and he supports those allegations with numerous additional allegations showing the connection between the presence of PFAS in his blood and body and Defendants’ conduct. (See, e.g., id. ¶¶ 36–43, 48, 53–54, 62–64, 69–70, 77.) Mr. Hardwick has sufficiently informed Defendants of their wrongdoing and plausibly pleaded a claim to relief.

B. Mr. Hardwick Has Sufficiently Pleaded Causation Under the Alternative Liability and Market-Share Liability Theories.

Even if the Court were to agree with Defendants that Mr. Hardwick has not plausibly pleaded that each Defendant caused him harm, the Court should still deny Defendants’ 12(b)(6) arguments under the alternative liability and market-share liability theories. Both theories “are exceptions to the general rule that a plaintiff has to prove an injury was caused by the negligence of a particular defendant.” Goldman v. Johns-Manville Sales Corp., 514 N.E.2d 691, 693 (Ohio 1987).

Alternative liability applies where a plaintiff can show (1) that two or more defendants committed tortious acts, and (2) that the plaintiff was injured as a proximate result of the wrongdoing of at least one of the defendants. Goldman, 514 N.E.2d at 696. Once the plaintiff has made this showing, the burden shifts to the defendants to prove that they were not the cause of the plaintiff’s injuries. Here, Mr. Hardwick has alleged that each of the Defendants committed

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tortious acts and that each of those acts harmed him. (Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37.) These allegations are sufficient to plausibly assert a claim for relief under the alternative liability theory.

Defendants contend that Mr. Hardwick cannot pursue an alternative liability theory because he has not alleged proximate causation for any of the Defendants. (Joint Mot. at 25.) Defendants are mistaken, as Mr. Hardwick has alleged that each Defendant’s conduct caused his and the other class members’ blood and bodies to become contaminated with PFAS. (Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37.)

Defendants also contend that Mr. Hardwick cannot pursue an alternative liability theory because he has not joined as a defendant all potentially responsible parties. (Joint Mot. at 25.) Defendants offer no factual support for this assertion. But even if they did, the argument would still fail. When evaluating Defendants’ Joint Motion to Dismiss, the court must accept as true all of Mr. Hardwick’s material allegations. Parsons, 801 F.3d at 706. Mr. Hardwick has alleged that Defendants harmed him. (Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37.) If Defendants wish to point the finger at additional entities in a motion for summary judgment, they are free to do so. But at this stage, Mr. Hardwick’s allegations that only Defendants harmed him are accepted as true.

Under the market-share theory of liability, after the plaintiff has joined in an action the manufacturers of a substantial share of a harmful product, the burden shifts to the defendants to demonstrate that they could not have made the substance that injured the plaintiff. See Goldman, 514 N.E.2d at 700. The Ohio Supreme Court declined to apply the market-share theory in an asbestos exposure case because, among other issues, the largest asbestos supplier in the world was not a defendant in the case and because the court was hesitant, on a policy level, of imposing

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on the industry “a kind of court-constructed insurance plan.” Goldman, 514 N.E.2d at 701–02 (quoting Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67, 76 (Iowa 1986)). More recently, the Ohio Supreme Court stated that market-share liability is not an available theory of recovery in a product-liability action. Sutowski v. Eli Lilly & Co., 696 N.E.2d 187, 193 (Ohio 1998). The Ohio Supreme Court has not, however, foreclosed the application of the market-share theory to other types of cases.

Unlike the asbestos exposure case considered by the Ohio Supreme Court, this case does not involve an absent third-party; Mr. Hardwick has alleged that Defendants — and not some other group of potentially liable third-parties — harmed him and the other class members. (Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37.) And because Mr. Hardwick seeks equitable relief rather than money damages, there is little concern of imposing on the industry a court-constructed insurance plan. (See id. ¶ 140.) This is the type of case in which the Ohio Supreme Court would approve the application of the market-share theory.

Because Mr. Hardwick has plausibly pleaded that each Defendant caused his injuries under the traditional theory of causation and under the alternative liability and market-share liability theories, the Court should decline to dismiss this case under Rule 12(b)(6).

V. Mr. Hardwick’s Conspiracy and Declaratory Relief Claims are Properly Pleaded.

A. Mr. Hardwick Has Properly Pleaded a Claim for Conspiracy.

Mr. Hardwick has properly pleaded a conspiracy to commit battery. The elements of a civil conspiracy claim are: “(1) a malicious combination; (2) two or more persons; (3) injury to person or property; and (4) existence of an unlawful act independent from the actual conspiracy.” Maxey v. State Farm Fire & Cas. Co., 689 F. Supp. 2d 946, 954 (S.D. Ohio 2010). The only element at issue is whether plaintiff sufficiently pleaded an underlying tort. (Joint Mot. at 27.)

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The civil conspiracy claim asserts that Defendants conspired together to commit a harmful or offensive contact, bodily contamination by PFAS, and such harm resulted, blood and body contamination, persistence and bioaccumulation of toxic PFAS. Specially, Mr. Hardwick alleges that Defendants were aware of the health hazard and/or other risks posed by PFAS, (Compl. ¶ 136), and misrepresented and/or unlawfully concealed material facts about the dangers of PFAS which “induced justified reliance by Plaintiff, and other members of the class, which directly and proximately caused the contamination of the blood and/or bodies of Plaintiff and the other members of the Class with PFAS.” (Compl. ¶ 135.) These allegations support the elements of battery under Ohio law, as Mr. Hardwick alleges that Defendants intended to cause a harmful or offensive contact and harmful or offensive contact resulted from their action. Yeager v. Wilmers, 553 B.R. 102, 108 (S.D. Ohio 2015), aff’d №15–4169 (6th Cir. July 19, 2016).

Defendants incorrectly claim that Mr. Hardwick failed to separately allege a plausible tort upon which the civil conspiracy claim is pleaded. (Joint Mot. at 26 (citing Morrow v. Reminger & Reminger Co., L.P.A., 915 N.E.2d 696, 711–12 (Ohio Ct. App. 2009).) In Morrow, the Court determined that the civil conspiracy claim was based on torts of falsification and fraud because those underlying tort were not pleaded. Id. The same is true of Defendants’ other case, In re Nat’l Century Fin. Enterprises, Inc., 504 F. Supp. 2d 287, 327–29 (S.D. Ohio 2007). There, the court determined that a conspiracy to commit breach of fiduciary duty claim failed because it was not accompanied by an underlying cause of action for breach of fiduciary duty. Id. But unlike Morrow and In re Nat’l Century Fin. Enterprises, Inc., Mr. Hardwick adequately pleaded a civil conspiracy based on the underlying tort of battery. Defendants cannot simply ignore what was actually pleaded.

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B. Mr. Hardwick Has Properly Pleaded a Claim for Declaratory Relief.

Defendants, in a one sentence argument, incorrectly assert that Mr. Hardwick is not entitled to declaratory relief because it is not a stand-alone claim. True enough, but Mr. Hardwick’s declaratory judgment claim is based on his battery and negligence claims. It is well within the Court’s power to make such a declaration predicated upon the underlying substantive torts. Compare Days Inn Worldwide, Inc. v. Sai Baba, Inc., 300 F. Supp. 2d 583, 592–93 (N.D. Ohio 2004) (dismissing declaratory judgment claim because it was not accompanied by a substantive claim). Moreover, the claim for declaratory relief seeks accompanying injunctive relief; it is not alleged as part of an effort to maintain jurisdiction where it does not otherwise exist.

VI. Ohio’s Product Liability Act Does Not Preempt Mr. Hardwick’s Claims.

Defendants’ suggestion that Mr. “Hardwick’s claims fit comfortably within” the definition of a product liability claim and are therefore preempted by Ohio’s Product Liability Act (“OPLA”) is wrong. (Joint Mot. at 29.) The claims, in fact, do not fit at all within the definition. Under Ohio law, a “product liability claim” is a claim or cause of action that:

seeks to recover compensatory damages from a manufacturer or supplier for death, physical injury to person, emotional distress, or physical damage to property other than the product in question, that allegedly arose from any of the following: (a) The design, formulation, production, construction, creation, assembly, rebuilding, testing, or marketing of that product; (b) Any warning or instruction, or lack of warning or instruction, associated with that product; © Any failure of that product to conform to any relevant representation or warranty.

Ohio Rev. Code § 2307.71(A)(13) (emphasis added). To be a product liability claim, a claim must seek compensatory damages. Id.; see also Caterpillar Fin. Servs. Corp. v. Harold Tatman & Son’s Enters., Inc., 50 N.E.3d 955, ¶ 32 (Ohio Ct. App. 2015) (stating that the Ohio Product Liability Act “defines a product liability claim as a claim seeking compensatory damages”).

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Neither Mr. Hardwick nor the class seeks compensatory damages for personal injuries in this action. (Compl. ¶ 140.) Hardwick and the class seek only declaratory, equitable, and/or injunctive relief. (Id. at PageID #31–32.

Mr. Hardwick and the class do not seek compensatory damages, which is fatal to Defendants’ argument. Defendants contend, however, that because Mr. Hardwick and the class might seek compensatory damages in a future action, the Court should disregard his request for relief and conclude that Mr. Hardwick is seeking compensatory damages. No logical or legal basis supports this argument

Defendants have not pointed to any instance where a court has found that an action is a product liability claim despite the fact that the claim does not seek compensatory damages. Nor have Defendants identified any instance where a court has concluded that a claim seeks compensatory damages because the plaintiff might seek compensatory damages in a future case. Defendants cannot point to such case law because the plain language of § 2307.71(A)(13) defines product liability claims as claims that, among other things, seek to recover compensatory damages. Nowhere in the statute is there a reference to potential future claims for compensatory damages.

In an attempt to create support for their meritless argument, Defendants cite a case where the court declined to certify a class action under Rule 23(b)(2) because, among other reasons, the plaintiffs’ requested declaratory relief would “lay the basis for a damage award rather than injunctive relief.” Gawry v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 942, 961 (N.D. Ohio 2009). Gawry has no relevance to the present case. Gawry did not involve a product liability claim, and the standard at issue in the Gawry court’s Rule 23(b)(2) class certification analysis bears no resemblance to the statutory language that applies here. To determine whether

to certify the class under Rule 23(b)(2), the Gawry court needed to determine whether the monetary relief sought by the class was incidental to the declaratory relief sought by the class. Id. The court declined to certify the class, because the class’s requested declaratory relief would simply form a basis for a future damage award and, consequently, the requested monetary relief was not incidental to the declaratory relief. Id. Here, by contrast, no analysis of the requested relief is needed (or permitted); whether Mr. Hardwick’s action is a product liability claim does not hinge on whether the action lays the groundwork for a future claim. Section 2307.71(A)(13) establishes a binary distinction. Either a claim seeks compensatory damages or it does not. If a claim, such as Mr. Hardwick’s, does not seek compensatory damages, then it is not a product liability claim, as a matter of law. See Ohio Rev. Code § 2307.71(A)(13).

When interpreting a statute under Ohio law, courts attempt to ascertain the intent of the legislature. State v. Hairston, 804 N.E.2d 471, 473–74 (Ohio 2004). To determine that intent, courts first look to the statute’s plain language. Summerville v. Forest Park, 943 N.E.2d 522, 527 (Ohio 2010). When the statute’s meaning is unambiguous and definite, courts apply the statute as it is written. Id.

Defendants ask the Court to ignore the plain language of § 2307.71(A)(13) and read into it an exception for instances when a plaintiff might someday seek compensatory damages in a different claim. But given that there is nothing ambiguous or indefinite about § 2307.71(A)(13), the Court should reject this argument. To be a product liability claim, the claim must seek to recover compensatory damages. Ohio Rev. Code § 2307.71(A)(13). The statute does not provide for any exceptions, and it certainly does not state that the possibility of a future claim for compensatory damages can transform a claim seeking no compensatory damages into a product liability claim.

Defendants cite several cases for the proposition that Mr. Hardwick’s request for the establishment of a science panel paid for by Defendants should be considered compensatory damages. None of the cases supports that proposition. One case discusses preemption of state law under CERCLA. New Mexico v. Gen. Elec. Co., 467 F.3d 1223, 1244–45 & n.31 (10th Cir. 2006). In another case, the court notes that the plaintiff water district sought compensatory damages for expenses that it had already incurred while investigating and remediating environmental contamination. In re MTBE Prods. Liab. Litig., №1:00–1898, 2007 WL 700819, at *3 (S.D.N.Y. Mar. 7, 2007). And in a third case, the court states that a defrauded insurer is entitled to compensatory damages including reasonable investigation expenses under the New Jersey Insurance Fraud Prevention Act. Colony Ins. Co. v. Kwasnik, Kanowitz & Assocs., P.C., №1:12-cv-00722, 2014 WL 2920810, at *5 (D.N.J. June 27, 2014). Through this assortment of cases, Defendants seemingly attempt to define “compensatory damages” to include Mr. Hardwick’s request for the establishment of a science panel at Defendants’ expense. Ohio courts, however, do not look to random federal cases deciding unrelated legal issues to define terms in an Ohio statute.

Under Ohio law, courts give undefined terms in a statute their plain and ordinary meaning. State ex rel. Data Trace Information Servs., LLC v. Cuyahoga Cty. Fiscal Officer, 963 N.E.2d 1288, 1298 (Ohio 2012). The Ohio Supreme Court regularly looks to Black’s Law Dictionary for that meaning. See, e.g., Anderson v. Barclay’s Capital Real Estate, Inc., 989 N.E.2d 997, 1001 (Ohio 2013); In re M.W., 978 N.E.2d 164, 168 (Ohio 2012); State ex rel. Steele v. Morrissey, 815 N.E.2d 1107, 1111 (Ohio 2004).

Black’s Law Dictionary defines “compensatory damages” as “[d]amages sufficient in amount to indemnify the injured person for the loss suffered.” Black’s Law Dictionary 195 (4th

Pocket ed. 2011). “Indemnify,” in turn means “[t]o reimburse (another) for a loss suffered because of a third party’s or one’s own act or default; hold harmless.” Id. at 375.

Mr. Hardwick’s request for the creation of a science panel is not a request for compensatory damages, as the creation of a science panel does not constitute “damages sufficient in amount to indemnify” Mr. Hardwick for his injuries. Id. at 195. Mr. Hardwick’s request that Defendants pay for the science panel does not change this conclusion. Defendants’ payment for the science panel is not reimbursing Mr. Hardwick for a loss that he has suffered because Mr. Hardwick has not already paid for the science panel. Defendants cannot reimburse a cost that Mr. Hardwick has not incurred.

Given that Mr. Hardwick does not seek compensatory damages in this case, Mr. Hardwick’s claims are, by definition, not product liability claims and therefore not preempted by the OPLA.

VII. This Court Has Personal Jurisdiction Over the Defendants.

Each Defendant submitted a motion making common arguments as to why they believe that the Court lacks personal jurisdiction over them. (ECF Nos. 67–69, 71–73, & 82–84 (“Pers. Juris. Mots.”). For the Court’s convenience, Mr. Hardwick addresses them together here.

Defendants’ personal jurisdiction arguments are little more than nitpicking the choice of words in the Complaint. They are particularly exorcised by the use of “and/or” in explaining all of the ways that Defendants have released PFAS into Ohio and into Mr. Hardwick. Their focus on these nits is an effort to obscure the basic truth that the Defendants cannot overcome: the Defendants manufactured PFAS and released it into the world — no one else is responsible for the PFAS existing and spreading across the world because it is not naturally occurring and only Defendants manufacture it; PFAS contamination exists in Ohio; PFAS contamination exists in

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Mr. Hardwick. There is no other plausible explanation for how Mr. Hardwick and his class members have become contaminated by PFAS except by the actions of these Defendants.

A. The Complaint Adequately Pleads Personal Jurisdiction Over the Defendants.

The Court has specific personal jurisdiction over a defendant if the defendant’s conduct is covered by Ohio’s long-arm statute and the exercise of jurisdiction does not violate the defendant’s due process rights. Although the burden is on the plaintiff to demonstrate jurisdiction, “[w]here a Rule 12(b)(2) motion is decided solely on written submissions, the plaintiff’s burden is relatively slight.” Retail Serv. Sys., Inc. v. Mattress Clearance Centers of Am., LLC, №2:17-CV-746, 2018 WL 3716896, at *3 (S.D. Ohio Aug. 3, 2018) (internal quotation marks omitted). “[T]he court must view all of the pleadings and affidavits in a light most favorable to the plaintiff, and … the plaintiff need only make a prima facie showing that personal jurisdiction exists.” Id. (citations omitted).

The long-arm statute confers jurisdiction over a defendant where, as relevant here, the cause of action arises from the defendant:

(1) Transacting any business in this state;

(2) Contracting to supply services or goods in this state;

(3) Causing tortious injury by an act or omission in this state;

(4) Causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state; [or]

* * **

(6) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when he might reasonably have expected that some person would be injured thereby in this state.

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Ohio Rev. Code § 2307.382(A). “A finding that Defendants have transacted business in Ohio or acted consistently with any one of the above factors would be sufficient to assert personal jurisdiction.” Retail Serv. Sys., Inc., 2018 WL 3716896, at *4. Courts in this Circuit take “a broad approach” to Subsection 6 — tortious acts committed outside Ohio and causing harm in Ohio. Schneider v. Hardesty, 669 F.3d 693, 700 (6th Cir. 2012). Due process is satisfied if the defendant purposefully availed itself of Ohio, the claim is connected to the defendant’s actions in, or directed to, Ohio, and the exercise of jurisdiction is reasonable. See, e.g., Retail Serv. Sys., Inc., 2018 WL 3716896, at *7–9.

Mr. Hardwick’s Complaint includes the following jurisdictional facts, which plainly demonstrate that the Court has jurisdiction over each Defendant:

 Each Defendant “marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, sold, and/or otherwise handled and/or used PFAS … including in Ohio and this District, in such a way as to result in the contamination of Plaintiff’s and other class members’ blood and/or bodies.” (Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37.)

 “Defendants manufacturing and/or using PFAS materials released such PFAS materials into the environment during, as a result of, or in connection with their manufacturing and other commercial operations, including into the air, surface waters, ground water, soils, landfills, and/or through their involvement and/or participation in the creation of consumer or other commercial products and materials and related training and instructional materials and activities, including in Ohio and this District, that Defendants knew, foresaw, and/or reasonably should have known and/or foreseen would expose Plaintiff and the other class members to such PFAS.” (Id. ¶ 42.)

 The Defendants have known for many decades that PFAS is biopersistent and bioaccumulative, and has significant negative health effects (id. ¶¶ 40–51), and they have worked intentionally for many decades to keep this information from the public, including Mr. Hardwick, other Ohioans, and class members. (Id. ¶¶ 52–68.)

 “At all relevant times, Defendants encouraged the continued and even further increased use and release into the environment of PFAS, including into Ohio and this District, by their customers and others, including but not limited to through manufacture, use, and release, of aqueous fire-fighting foams containing or made

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with PFAS and/or emergency responder protection gear or equipment coated with materials made with or containing PFAS, and tried to encourage and foster the increased and further use of PFAS, including in Ohio and this District, in connection with as many products/uses/and applications as possible, despite knowledge of the toxicity, persistence, and bioaccumulation concerns associated with such activities.” (Id. ¶ 69.)

 “Defendants were and/or should have been aware, knew and/or should have known, and/or foresaw or should have foreseen that their marketing, development, manufacture, distribution, release, training of users, production of instructional materials, sale and/or other handling and/or use of PFAS materials, including in Ohio and this District, would result in the contamination of the blood and/or bodies of Plaintiff and the other class members with PFAS materials, and the biopersistence and bioaccumulation of such PFAS in such blood and/or bodies.” (Id. ¶ 79.)

 Defendant AGC Chemicals Americas, Inc. admits that it does business in Ohio, (ECF №89 ¶¶ 6–7), and that it “has sold products that contain per- and/or polyfluoroalkyl substances to customers in the United States and in the State of Ohio,” (id. ¶ 8).

 “Mr. Hardwick is a citizen of the State of Ohio and a resident of the Southern District of Ohio, and has worked as a firefighter for more than forty years, during which he has used firefighting foams containing one of more PFAS materials, used equipment/gear treated and/or coated with materials containing and/or contaminated with one or more PFAS materials, and/or otherwise was exposed to one or more PFAS materials, and now has one or more PFAS materials in his blood serum.” (Compl. ¶ 4.)

Mr. Hardwick’s allegations satisfy sections (1) and (2) of the long-arm statute. The Complaint pleads that each Defendant transacted business in Ohio and contracted to supply goods or services in Ohio. Each Defendant did so in the variety of ways repeatedly described in the Complaint — from marketing to manufacturing to distributing to training in the use of PFAS products. (Compl. ¶¶ 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37.) Those actions occurred in Ohio and caused harm in Ohio by contaminating the blood of Mr. Hardwick. (Id.) Sections (3), (4), and (6) of the long-arm statute are satisfied for the same reasons. Paragraphs 42, 69, and 79 of the Complaint describe how each Defendant committed torts in Ohio and outside Ohio that affected Ohio residents. Each Defendant manufactured and used

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PFAS, thereby releasing it into Ohio and injuring Mr. Hardwick and others in Ohio. Through their commercial operations, each Defendant contaminated Ohio’s air, surface waters, ground water, soils, landfills. (Compl. ¶ 42.) Their PFAS was used in the fire-fighting foams and on the gear that Ohio firefighters, including Mr. Hardwick, use and are exposed to. (Compl. ¶ 69.) And each Defendant knew or should have known that their manufacture, release, distribution, and use of PFAS would cause harm in Ohio. (Compl. ¶ 79.)6 E.g., Stolle Mach. Co., LLC v. RAM Precision Indus., 605 F. App’x 473, 480 (6th Cir. 2015); Reber v. Lab. Corp. of Am., №2:14- CV-2694, 2015 WL 7076608, *7–8 (S.D. Ohio Nov. 13, 2015) (Ohio long-arm statute applied to non-resident defendant lab tech who “would have known” samples she screened came from patients in Ohio and that her analysis would be used by doctors in Ohio and other states); State ex rel. Petro v. Pure Tech Sys., Inc., №101447, 2015 WL 1959935, at *6 (Ohio Ct. App. Apr. 30, 2015) (finding that companies that allegedly violated state hazardous waste and water pollution control laws transacted business in Ohio within the meaning of the long-arm statute even though the companies had ceased business operations in the state; also noting that “transacting business for purposes of personal jurisdiction does not require physical presence in Ohio”).

Defendants claim that neither the long-arm statute nor due process is satisfied because the Complaint does not plausibly plead that Mr. Hardwick’s injuries arose from Defendants’ actions. (They do not make any other due process objection.) Defendants’ arguments fail for all of the reasons discussed above related to the injury issue. (See supra Parts I, II, and IV.)

6 AGC Chemicals Americas admits that it does business in Ohio and sells PFAS products in Ohio. (ECF №89.) That alone satisfies the basic elements of the long-arm statute as to it.

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But Defendants’ argument also ignores what the Complaint actually says. They hope that the Court will look only at the specific paragraphs related to the description of each Defendant — paragraphs 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37. They ignore paragraphs 42, 69, and 79, which plead the causal link between Defendants’ activities and the harm to Mr. Hardwick in Ohio. Those paragraphs, consistent with the entire course of events described in the Complaint, explain that (1) these Defendants made PFAS and released it into the world; (2) Mr. Hardwick and nearly every other Ohioan and American has PFAS in his blood; (3) because no one else made PFAS and it does not occur in nature, the Defendants who do make PFAS caused PFAS to intrude into Mr. Hardwick (and everyone else’s) blood and body. This proximate cause chain is sufficient to establish jurisdiction.

Defendants instead suggest that they cannot be subject to this Court’s jurisdiction because one reading of paragraphs 6, 8, 10, 12, 14, 16, 19, 22, 24, 26, 29, 37 is that they “produced instructional materials and then [sold] those materials to some other company, which follow[ed] the instructions to manufacture PFAS and then [sold] those PFAS to yet another company, which ultimately manufacture[d] one of the firefighting foams that Plaintiff used at some point during his career.” (E.g., Def. Daikin Indus., LTD’s Mot. to Dismiss for Lack of Pers. Jurisdiction [ECF №82] at 8.) First, that is a mischaracterization. If all one of these Defendants did was produce instructional materials, it still would be liable to Mr. Hardwick because that Defendant did not disclose to Mr. Hardwick (or anyone else) the health effects that that Defendant knew PFAS could cause.

And second, the Court does not have to ignore the complete reading of those paragraphs. The case on which Daikin and others rely found that an “and/or” formulation made a pleading implausible because the plaintiff’s injury rested on whether she had taken the generic or name

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brand form of a drug. The “and/or” allowed for either to have harmed her. See Patterson, 451 F. App’x at 495, 498. That is not true here. The and/or here modifies the range of conduct — it does not modify who undertook it or what affect it had. (See also supra Part IV.A.)

Moreover, the Complaint explains Defendants’ decades-long campaign to keep from the public the adverse health effects of their toxin. (Compl. ¶¶ 40–62.) Defendants have misled government agencies, refused to publish relevant information, and decided that it was in their best interests to not study further what their PFAS does to humans. These omissions have caused tortious injury in Ohio. Mr. Hardwick did not know that the items he was required to use at work would directly result in PFAS entering his bloodstream and remaining there, altering his body makeup. Defendants kept critical information from him as they contaminated his body. There is little doubt that Mr. Hardwick has plausibly pleaded a causal link between the Defendants omissions (as well as their acts) and his contamination. E.g., Schneider, 669 F.3d at 700 (fraudulent communications or misrepresentations into Ohio create jurisdiction in Ohio); Kehoe Component Sales, Inc. v. Best Lighting Prod., Inc., №2:08-CV-752, 2009 WL 2591757, at *5 (S.D. Ohio Aug. 19, 2009) (deceptive statements knowing that they would cause injury in Ohio sufficient for jurisdiction); Hollar v. Philip Morris Inc., 43 F. Supp. 2d 794, 804 (N.D. Ohio 1998) (finding that a defendant was subject to personal jurisdiction in Ohio because the company allegedly broadcast and published misleading information that was seen and heard in Ohio and, in several instances, specifically directed at Ohio); Ohio Lending Consultants, LLC v. Sec. Capital Holdings, Inc., №1:14 CV 1358, 2014 WL 5162285, at *5 (N.D. Ohio Oct. 14, 2014) (finding that a defendant was subject to personal jurisdiction where the defendant, acting outside of Ohio, directed fraudulent communications to Ohio residents to conceal another defendant’s profits).

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The Court should disregard Defendants’ suggestion to atomize the Complaint such that each word is separated from the whole and stripped of its meaning. Rather, the Court should read the plain English of the allegations, take them as a whole, and see that it has personal jurisdiction over the Defendants under Ohio’s long-arm statute and consistent with due process.

B. Bristol-Myers Did Not Change the Analysis for a Court’s Jurisdiction Over Class Actions.

Defendants insist that the Court lacks jurisdiction over the nonresident putative class members under Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S.Ct. 1773, 1778 (2017). However Bristol-Myers was a mass tort action, not a class action. And the majority of courts addressing the question have found that Bristol-Myers does not reach class actions.

Bristol-Myers addressed personal jurisdiction over individual named plaintiffs who brought an action in California state court. It did not address the issue of federal jurisdiction over absent class members in federal court. Bristol-Myers, 137 S.Ct. at 1778. In Bristol-Myers, the Supreme Court considered whether a California state court had jurisdiction over the claims of the 592 out-of-state residents. Id. After observing that the nonresident plaintiffs named in the complaint “were not prescribed Plavix in California, did not purchase Plavix in California, and were not injured by Plavix in California,” the Court concluded that California courts could not claim specific jurisdiction over the nonresidents. Id. at 1781–82. Notably, Bristol-Myers did not hold (1) that specific jurisdiction in a Rule 23 class action is determined by reference to the absent class members, or (2) that Rule 23 provides insufficient due process safeguards for defendants in class action litigation. In fact, no circuit court has held that Bristol-Myers applies to federal class actions. District courts have ended up on both sides of the question of Bristol-Myers’ application, but the

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majority of district courts have declined to extend its holding to class actions. “Outside of [the Northern District of Illinois], … very few courts have extended BMS to unnamed class members, and one of the courts addressed the issue only briefly in a footnote.” Knotts v. Nissan N. Am., Inc., 346 F. Supp. 3d 1310, 1331–32 (D. Minn. 2018) (noting that “[d]istrict courts in California, Louisiana, Florida, Georgia, Virginia, Texas, the District of Columbia, and even Illinois have concluded that there are valid reasons for limiting [Bristol-Meyers] to named parties — particularly due to the material distinctions between mass tort actions and class actions”) (footnotes omitted)); Braver v. Northstar Alarm Services, LLC, 329 F.R.D. 320, 327 (W.D. Okla. 2018) (citation omitted) (“[t]his court joins the majority of other courts in holding that BristolMyers does not apply to class actions in federal court”). See also e.g., Swinter Group, Inc. v. Serv. of Process Agents, Inc., №4:17-CV-2759, 2019 WL 266299, *2–3 (E.D. Mo. Jan. 18, 2019); Molock v. Whole Foods Market, Inc., 297 F. Supp. 3d 114, 126 (D.D.C. 2018); In re Chinese-Manufactured Drywall Prod. Liability Litigation, №09–2047, 2017 WL 5971622, at *16 (E.D. La. Nov. 30, 2017); Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., №17-cv00564 NC, 2017 WL 4224723, at *5 (N.D. Cal. Sept. 22, 2017). (This is a partial, exemplary list of all cases favoring Mr. Hardwick’s position.)

The majority of federal courts have declined to extend Bristol-Myers to class actions because mass tort and class actions have key distinctions. First, “[i]n a mass tort action … each plaintiff [is] a real party in interest to the complaints.” By contrast, in a putative class action, “one or more plaintiffs seek to represent the rest of the similarly situated plaintiffs, and the named plaintiffs are the only plaintiffs actually named in the complaint.” Fitzhenry–Russell, 2017 WL 4224723, at *5 (citing Fed. R. Civ. P. 23) (internal quotations omitted). While the claims of the nonresident named plaintiffs were pertinent to the issue of specific jurisdiction in

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Bristol-Myers, claims of unnamed class members are irrelevant to the question of specific jurisdiction in class actions. See Sanchez v. Launch Tech. Workforce Sols., LLC, 297 F. Supp. 3d 1360, 1367–69 (N.D. Ga. 2018) (collecting cases); Casso’s Wellness Store & Gym, L.L.C. v. Spectrum Lab. Products, Inc., №17–2161, 2018 WL 1377608, *5 (E.D. La. Mar. 19, 2018) (same).

Second, class actions possess additional due process safeguards not applicable in mass tort actions. As the United States Senate explained “the strict requirements of Rule 23 … are intended to protect the due process rights of both unnamed class members and defendants.” S. REP. 109–14, at 14 (2005). “[F]or a case to qualify for class action treatment, it needs to meet the additional due process standards for class certification under Rule 23 — numerosity, commonality, typicality, adequacy of representation, predominance and superiority.” In re Chinese–Manufactured Drywall, 2017 WL 5971622, at *14. “Given these safeguards, due process concerns for the defendant in the class action context are far less compelling than in a mass tort such as BMS, where each joined plaintiff may make different claims requiring different responses.” Swinter Group, Inc., 2019 WL 266299 at *2 (citation omitted).

These key distinctions between mass tort and class actions do not support extending Bristol-Myers’ limited holding regarding named out of state plaintiffs in a state mass tort action to putative out of state federal class members. Moreover, the Supreme Court itself implied Bristol-Myers’ holding should be limited, characterizing its holding as a “straightforward application … of settled principles of personal jurisdiction.” 137 S.Ct. at 1783. To hold BristolMyers 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.” Knotts, 346 F. Supp. 3d at 1334. “Defendants’ desired application

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of Bristol-Myers would create a sea change in class action jurisprudence.” Jones v. Depuy Synthes Products, Inc., №7:17-cv-01778-LSC, 2018 WL 6431013, *9 (N.D. Ala. Nov. 20, 2018). This would defeat the goal of class actions. “Congress created class actions to help ‘overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.’” Swinter Group, Inc., 2019 WL 266299, at *3 (citation omitted). The Court should decline Defendants’ invitation to extend Bristol-Myers to class actions.

C. The Court Should Defer Personal Jurisdiction Analysis of Putative Class Members Until After Class Certification.

Defendants also are jumping the gun. They essentially are asking the Court to reach the question of class certification through a motion to dismiss. They are asking “the Court to embark on a difficult — if not impossible — inquiry not customarily performed as part of a class action and not considered in the Bristol-Myers decision.” Dennis v. IDT Corp., 343 F. Supp. 3d 1363, 1366– 67 (N.D. Ga. 2018). “At this stage of the litigation, no class has been certified, and therefore, to determine whether this Court has specific jurisdiction over Defendant with respect to the claims of the unnamed class members prior to class certification would put the proverbial cart before the horse.” Id. See also Chernus v. Logitech, Inc., No. CV 17–673(FLW), 2018 WL 1981481, at *8 (D.N.J. Apr. 27, 2018); Gasser v. Kiss My Face, LLC, №17-cv-01675-JSC, 2018 WL 4538729, at *2 (N.D. Cal. Sept. 21, 2018) (“It is undisputed that the Court has personal jurisdiction of the named plaintiffs from California and New York … the Court does not understand how it can lack personal jurisdiction of persons who are not yet … parties to this action, that is, the putative class members.”).

Courts have thus decided that in a class action, the jurisdictional inquiry regarding nonresidents is more appropriate as part of the class certification inquiry. Id.; Suarez v.

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California Nat. Living, Inc., №17 CV 9847 (VB), 2019 WL 1046662, *6 (S.D.N.Y. Mar. 5, 2019) (“the Court need not assess personal jurisdiction over plaintiff’s putative out-of-state class action claims unless and until the Court decides a class comprising out-of-state class members merits certification”); Blitz v. Monsanto Co., 317 F. Supp. 3d 1042, 1047–48 (W.D. Wis. 2018) (“Because this question need not be decided now, and the court would no doubt benefit from greater factual and legal briefing before resolving, the court will also reserve judgment on the question of whether it can exercise personal jurisdiction over the claims of a nationwide class, at this time.”); Gonzalez v. Costco Wholesale Corp., №16-CV-2590 (NGG) (JO), 2018 WL 4783962, *8 (E.D.N.Y. Sept. 29, 2018) (“this court will defer its resolution of this issue until Plaintiff files a motion for class certification, if she does in fact decide to do so.”); Campbell v. Freshbev LLC, 322 F. Supp. 3d 330, 337 (E.D.N.Y. 2018) (“In any event, plaintiff has not yet brought a motion to certify a nationwide class. Until he does so, the issue is not squarely before the Court. Given the unsettled nature of the law following Bristol–Myers, the Court will defer on this question until the plaintiff brings a motion for class certification, if he chooses to do so.”). “The efficient administration of class actions would be compromised by requiring the Court to make personal jurisdiction determinations for every named and potential unnamed plaintiff, particularly at the outset of the litigation. Such an unwieldy process would defeat the purpose of the class action mechanism.” Knotts, 346 F. Supp. 3d at 1334–35 (citations omitted). The Court should reject Defendants’ invitation to reach class certification now. Doing so is inconsistent with the vast weight of courts that have addressed the issue, and would be error.

* * * * * *

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ALTERNATIVE MOTION FOR LEAVE TO AMEND COMPLAINT

As explained above, Mr. Hardwick’s Complaint sufficiently pleads subject matter jurisdiction and personal jurisdiction. Should the Court disagree, Mr. Hardwick moves the Court under Fed. R. Civ. P. 15(a) for leave to amend his Complaint to plead additional facts in support of this Court’s jurisdiction.

Leave to amend should be freely given under Fed. R. Civ. P. 15(a)(2), unless amendment would be futile. See Kiker v. Smithkline Beecham Corp., №2:14-CV-2164, 2015 WL 5768389, at *2 (S.D. Ohio Sept. 30, 2015).

Defendants’ attack on Mr. Hardwick’s Complaint centers on perceived missing links between each Defendant and Ohio, and each Defendant and Mr. Hardwick. If necessary, Mr. Hardwick would amend his Complaint to include additional facts linking each Defendant to Ohio and Mr. Hardwick. For example, Mr. Hardwick would describe in greater detail how Defendants’ PFAS enters Ohio — through the sale of products containing their PFAS in Ohio (see, e.g., ECF №89 (AGC Chemicals Americas, Inc. admits that it does business in Ohio and has sold PFAS products into Ohio)); through release into the air and waters of Ohio — and how it has invaded Mr. Hardwick’s body and injured him — through use of PFAS products. The amendments would not be futile because they would fill in the links that Defendants claim are missing between their actions and Ohio and Mr. Hardwick. If the Court dismisses the Complaint, it should also should give Mr. Hardwick leave to amend.

CONCLUSION

For the foregoing reasons, all of Defendants’ motions to dismiss should be denied in their entirety. Alternatively, the Court should grant Mr. Hardwick leave to amend his Complaint to address any pleading defects that the Court might find.

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Respectfully submitted,

/s/ David J. Butler David J. Butler (0068455), Trial Attorney Jonathan N. Olivito (0092169) Taft Stettinius & Hollister LLP 65 East State Street, Suite 1000 Columbus, Ohio 43215 Telephone: (614) 221–2838 Facsimile: (614) 221–2007 dbutler@taftlaw.com jolivito@taftlaw.com

Robert A. Bilott (0046854) Taft Stettinius & Hollister LLP 425 Walnut Street, Suite 1800 Cincinnati, OH 45202–3957 Telephone: (513) 381–2838 Facsimile: (513) 381–0205 bilott@taftlaw.com

and
Michael A. London (pro hac vice) Rebecca G. Newman (pro hac vice) Douglas & London, PC 59 Maiden Lane, 6th Floor New York, NY 10038 Telephone: (212) 566–7500 Facsimile: (212) 566 7501 mlondon@douglasandlondon.com rnewman@douglasandlondon.com
-and
Ned McWilliams (pro hac vice application forthcoming) Levin Papantonio Thomas Mitchell Rafferty & Proctor P.A. 316 South Baylen Street Pensacola, FL 32502 Telephone: (850) 435–7138 nmcwilliams@levinlaw.com Attorneys for Plaintiff

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CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing was served through the Court’s CM/ECF system this 12th day of April, 2019, on all counsel of record.