We were talking the other day with a colleague with whom we have been in the mass tort trenches for most of the last 20 years, and she observed that “it’s not about the tort anymore.”  Well, it is, and it isn’t.  We still see cases, sometimes in very large numbers, involving drugs and medical devices where the plaintiffs allege traditional product liability theories, such as negligence and strict product liability.  For those cases, it is still very much about the tort.

What our colleague meant is that plaintiffs now more than ever are pushing other theories of liability, including public nuisance and consumer protection claims alleging economic injuries.  And they often push too far.  Take for example Kimca v. Sprout Foods, Inc., No. 21-12977, 2022 WL 1213488 (D.N.J. Apr. 25, 2002), where the plaintiffs filed a class action alleging the presence of heavy metals in baby food.  Id. at *1.  Based on these allegations, the plaintiffs sought remedies for violations of consumer protection laws of various states, among other claims.  Id. at *2. 

Allegations of heavy metals in Mixed Berry Oatmeal and Crispy Brown Rice Toddler Fruit Snacks certainly grab your attention, but could plaintiffs back those allegations up?  Not really.  In fact, the plaintiffs did not even allege that they (or their children) suffered any harm, which meant that they had no standing to sue.

We have seen this before.  We blogged a few years ago on a Third Circuit case where the plaintiffs tested the boundaries of Article III standing by filing a complaint that affirmatively disavowed any alleged injury.  They lost, with the Third Circuit holding that there are generally three ways to plead an economic injury.  A plaintiff can allege an “alternate product theory” by alleging that, but for the defendant’s conduct, he or she would have purchased an alternative, less expensive product.  A plaintiff can also allege a “premium price theory,” under which he or she claims that wrongful advertising of a product as “superior” induced the plaintiff to pay an unfair premium.  Finally, a plaintiff can allege that he or she was deprived of the “benefit of the bargain” and did not get what he or she paid for.  See In re Johnson & Johnson Talcum Powder Prods. Mktg. Sales Prac. & Liab. Litig., 903 F.3d 278 (3d Cir 2018). 

The plaintiffs in In re J&J Talc could meet none of these standards, and neither could the baby food-purchasing plaintiffs in Kimca v. Sprout Foods.  They surely did not allege that any baby suffered any physical harm.  It was all about purported economic injury, but they failed on that score, too.  They did not allege that they would have purchased an alternate product, let alone one that was less expensive.  Kimca, 2022 WL 1213488, at *8.  They also did not adequately allege that misrepresentations caused them to pay an unfair premium for the product.  Id.  “Threadbare” allegations that they would not have paid as much for the product “if they had known” did not suffice.  The plaintiffs did not identify any comparable, cheaper, or purportedly safer product to demonstrate that they, in fact, paid a premium.  Id.

Finally, the plaintiffs did not allege any loss of a benefit of the bargain because they did not adequately allege that their children were at risk of harm from baby food.  In other words, they got what they paid for.  Id. at *9.  Importantly, allegations of a risk of future harm did not establish an economic injury that conferred standing to sue:

Plaintiffs . . . allege that the Baby Food Products were worthless.  But Plaintiffs assert the products were worthless precisely because they allegedly exposed their children to the risk of future harm—they do not otherwise allege that the Baby Food Products did not perform their intended purpose or that the products were worthless for any other reason.

Id

The upshot is that an economic injury claims requires actual harm, and an alleged risk of future harm does not suffice to establish economic injury.  As the court emphasized, the plaintiffs alleged that (1) the products contained heavy metals and (2) elevated levels of heavy metals can be dangerous, but they did not connect the two.  Id. at *8.  They did not allege that the alleged levels of heavy metals in the products were unsafe.  Id.  “Without this connection, Plaintiffs’ allegations are simply speculation.”  Id. 

The district court dismissed the claims for lack of standing, but without prejudice.  Plaintiffs might try again, but it very well could be that they did not allege harmful levels of heavy metals because they could not truthfully do so.  The district court took judicial notice of the FDA’s letter of March 5, 2021, stating that its testing showed no immediate health risk to children from toxic elements in food.”  There may be no “there” there?  Stay tuned.