alleges that Defendant marketed its . . . products as “safe, healthy, and appropriate for consumption,” despite knowing that they were tainted with hexavalent chromium. It further alleges that Defendant actively concealed this information with the intent to induce consumer sales. And it alleges that Plaintiff and other consumers in the class reasonably relied on the misrepresentations of product safety and suffered economic harm from the purchase(s) that resulted. These allegations touch upon all elements of common law fraud.
[Plaintiff] does not plead with the required particularity what level of hexavalent chromium makes [the product] unsafe. Many foods and drugs on the market are not one hundred percent safe, and general allegations that a product’s safety is less than one hundred percent do not give rise to a lawsuit for fraud. If it did, then every consumer would be able to bring a suit for economic injury anytime the consumer became aware of an additional, unlabeled product risk after his or her purchase.
[A]t oral argument, Plaintiff’s attorney conceded that Plaintiff did not know anything about hexavalent chromium’s dangers prior to purchasing the product. Thus, Plaintiff cannot show that − even had she read it − she relied on the absence of hexavalent chromium on the label in making her decision to purchase.
The contraceptives did not cause physical injuries or unwanted pregnancies, but some packaging was flawed. Once [defendant] discovered the flaws, it investigated the cause and took corrective actions. It also recalled all the . . . products packaged with the flawed process.
[The] manufacturer voluntarily worked to fix the potential problems, and these efforts alone do not justify class treatment. . . . [R]emedial efforts alone do not justify class certification. If a recall alone dictated class action treatment, then a class action would follow every recall. That would make manufacturers more reluctant to recall products: a disincentive that would disserve future consumers, who want manufacturers swiftly to cure defects.
[T]he product error rate was small − in this case, vanishingly small. The product defect rarely, if ever, caused any real problem. . . . Here, the evidence is that California consumers received zero defects. [plaintiff] did not receive a defective product. There is no evidence any California consumer received a Qualitest defect.
The true cause of her injury . . . was the incorrect [pharmacist] statement. . . . [Plaintiff’s] experience thus seems unusual. Her packaging was not defective. She bought a pregnancy test only because of the unprofessional mistake by the unnamed [pharmacist]. No evidence shows this unprofessional experience was typical. Apparently no other consumer got bad pharmacy advice.
The only downside of Federman is its inexplicable denial of summary judgment against the plaintiff’s individual strict liability claims. That’s hard to believe when there was no evidence of a product defect, as the opinion states in several places, such as “[t]he uncontradicted evidence does show [defendant] packaged [plaintiff’s] pills correctly.” Federman, slip op. at 2. What, then, supposedly supported strict liability? The opinion states that “two factors” – “the [pharmacist’s] statement and the money [plaintiff] spent on the pregnancy test” – “create strict liability.” Id.
[Defendant] announced a recall when it discovered its admitted glitch. The defect was real, although the probability of any one package containing the error was extremely low. Nevertheless . . . [it] was high enough to prompt [defendant] to direct pharmacies to contact customers. [The pharmacist] in turn mailed [plaintiff], who then phoned [the pharmacist]. The [pharmacist’s] person told [plaintiff] that “it’s as if I [plaintiff] hadn’t been on birth control for three months.” This [pharmacist] statement was erroneous.
- This is not a product defect, it is an “unprofessional” statement by a third person conducting a recall. It can’t be strict liability, since for fifty years that has required a product defect in California. If there’s anything at all, it would have to be a negligence claim, since the gravamen is conduct – the erroneous answer to the plaintiff’s question.
- There’s no California precedent (or anywhere else) for strict liability failure to recall.
- There is no evidence (at least none cited) to support the court’s bald conclusion that the pharmacist, in giving erroneous information over the phone (as opposed to sending a letter that the plaintiff did not rely upon), was acting as the manufacturer’s “agent.” Indeed, agency would seem inherently inconsistent with the conclusion that the pharmacist was acting in a “professional” capacity.
- There is no evidence (at least none cited) that the manufacturer provided the false information that the plaintiff ultimately heard. Thus there’s no causation, since the screw up was by somebody else.
- The damages sought were purely economic loss for being “at risk” of injury that never happened. That’s only recoverable in an medical monitoring action (something California recognizes), a claim the plaintiff didn’t bring.