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More than once have we taken note of the current plaintiff lawyer infatuation with enlisting “independent” (ha ha ha) laboratories that will manage to detect contaminants in any drug, cosmetic, or puddle of unicorn tears.  For example, see our coverage of the Zantac MDL magnum opus ruling where the court was less than impressed by lab tests (one of those labs being Valisure) purporting to find carcinogens in the medicine.  In addition, last November we reviewed a case holding that Valisure’s purported findings of benzene in antiperspirant were inadequate to prop up a product liability case under Louisiana law.  

Today, we take a brief look at Brief v. Idelle Labs, Ltd., 2023 WL 2860345  (D.N.J. April 10, 2023), which reached a similar result under New Jersey law. A plaintiff claimed that he suffered from leukemia as a result of benzene in his antiperspirant. The amended complaint alleged product defect under the New Jersey Products Liability Act, with  claims for manufacturing defect, design defect, and failure to warn. The amended complaint prayed for both compensatory and punitive damages. That prayer is unlikely to be answered.  

The defendant moved to dismiss the Brief case in its entirety.  (The defendant was not Procter & Gamble, but that fine company gets mentioned in the case because it was the original developer of the product. We mention such mentioning only because we were distracted by the court’s incorrect spelling of Procter as “Proctor.”  We have seen that misspelling often – from courts, plaintiff lawyers, and even defense lawyers.  But we never make that mistake, at least not since a former P&G employee taught us to remember that P&G products are bettER, not bettOR. With our brand loyalty to Tide, Cascade, Dawn, Braun, and many other products, that rubric rings true for us. Heck, P&G could hire us and pay the fees with Mach 3 blades.)

The plaintiff in Brief attempted to repel, evade, or delay the motion to dismiss by relying on extraneous materials and by urging the court to wait for discovery. Nice try. The Brief court refused to consider such extraneous materials and would not allow lack of discovery to excuse inadequate pleading.  

How was the pleading in the Brief amended complaint inadequate? The main problem was the amended complaint’s full-blown reliance on a finding by Valisure of benzene in three samples of the product from three specific lots, as well as a subsequent recall of the product. But a Valisure-inspired recall was not enough to make out an actual defect. The Valisure report identified “significant variability” of benzene from batch to batch. Nowhere near all the tested products were contaminated, so it could not be inferred that the plaintiff’s products necessarily were. Nor can a voluntary recall constitute an admission of defect — a point for which we will certainly be citing Brief in our briefs.  

Moreover, the plaintiff insufficiently pled causation. The plaintiff said that he “regularly” used the antiperspirant for “many years” (this formulation will sound familiar to veterans of the asbestos and talcum powder wars), but that rote recitation did not add up to facts showing “high levels” of benzene consumption.  In short, the Valisure test results were not a short cut to a valid lawsuit.  

Absent defect or causation, the Brief case needed to be slammed shut.  There were, to be sure, defects in the Brief case, but they resided in the causes of action, not the product.  Each one of the causes of action in the amended complaint suffered from a fatal flaw. 

First, the manufacturing defect failed because the plaintiffs pointed to no defect or deviation in the manufacturing process.  All that the plaintiff could plead was that benzene should not be in the product, so the presence of benzene must mean that something went wrong. But the plaintiff identified no “error or mishap” during manufacturing. Further, the plaintiff’s theory was internally inconsistent. The court held that “common sense dictates that a product cannot deviate from another identical product” when the plaintiff’s claim was that over the “many years of regular use” the products “suffered from the same inherent flaw.”  That clever point, using the plaintiffs’ exposure allegations to push the manufacturing defect claim right out the courthouse door, resulted in dismissal of the manufacturing defect claim with prejudice. 

Second, the Brief court held that the design defect claim failed because the plaintiff never made out a real defect or alternative design. The plaintiff relied on the Valisure testing, not only to show the presence of benzene in the product at issue, but also to show the lack of benzene in other, similar products.  According to the plaintiff, those other, benzene-free products suggested the availability of an alternative design. But, again, the Valisure testing was incomplete and nonspecific to the plaintiff.  Maybe the plaintiff could do a better job of pleading the design defect cause of action (we are skeptical), so the court dismissed this count without prejudice. 

Third, the failure to warn claim ran headlong into New Jersey’s presumption that FDA mandated drug warnings are adequate.  Antiperspirant spray products are regulated as drugs. The plaintiff did not plead any facts hinting that the defendant should have known, based on newly discovered information, of any link between the antiperspirant and leukemia, or that the defendant deliberately concealed risks. The plaintiff did not cobble together an allegation that any newly acquired information was withheld from the FDA. Thus, the court also dismissed the failure to warn claim, though it did so without prejudice.  

The plaintiff will need to put up or shut up.  One thing is sure (or, given the product at issue, Sure): the lab test results are not enough. We expect this lawsuit to have a brief lifespan.