The ongoing class action case Hardwick v. 3M Company in the US Court of Appeals for the Sixth Circuit court deals with an interesting, and potentially far-reaching, question: can someone sue now if they believe they may suffer harm in the future due to past events? The case involves everyone in the US who has been exposed to per- and polyflouroalkyl substances (PFAS), chemicals that have come to be known as “forever chemicals” because of their persistence in the environment and human body.
The plaintiffs claim that PFAS is ubiquitous and of such long persistence that it has found its way into virtually every American’s bloodstream. They fear that this exposure could eventually lead to various diseases, and they want legal redress from the companies responsible for the PFAS exposure without waiting for any diseases to manifest.
The legal basis for this case is the theory of “medical monitoring”. Unlike a typical negligence lawsuit, in a medical monitoring case the plaintiff isn’t required to prove that they have already developed disease due to exposure to a toxic substance. Instead, they must only demonstrate that there is a realistic likelihood of contracting a disease in the future. If victorious, the plaintiff can then claim the cost of medical examinations to monitor for the eventual development of any disease caused by the exposure.
Yet this approach is in stark contrast with the US Supreme Court’s most recent standing precedents. As dictated by Article III of the Constitution, federal courts require all plaintiffs to demonstrate an injury that can be traced back to the defendant and can be remedied by the relief sought. In the 2021 decision TransUnion LLC v. Ramirez, the court clarified that foreseeable future harm is not considered an injury sufficient for legal standing.
The Hardwick plaintiffs are asking for an injunction to fund research into the effects of PFAS in their bodies. However, an injunction meant to prevent harm from occurring can only satisfy the standing requirements when the potential future harm is sufficiently imminent and substantial. The plaintiffs in Hardwick are arguing that they have already been exposed to PFAS, so the onset of diseases will occur regardless. Therefore, they posit that funding for research and disease detection should be provided.
However, this argument for injunctive relief seems at odds with the conception of standing as interpreted in TransUnion. Suing now for a future harm does not change past events, and if PFAS is indeed as harmful as plaintiffs claim, individuals will have their day in court when disease manifests. This PFAS case tests the boundaries of medical monitoring as a tort and the decision in the forthcoming case will merit close attention.
You can read a more detailed analysis of this topic in the article titled “3M PFAS Case on Medical Monitoring Is a Stretch on Standing.”