We are in New Orleans for the annual DRI Drug & Medical Device Seminar, so we would be remiss if we passed up the opportunity to write on a Louisiana case. The case will sound familiar. We reported six months ago on the dismissal of a case brought by the same plaintiff alleging that benzene in antiperspirant caused cancer. That order was noteworthy for at least two reasons. First, the plaintiff based her allegations on testing performed by Valisure, a lab that holds itself out as “the pharmacy that checks,” but has become better known lately for producing test results that drive litigation. Second, the Eastern District of Louisiana dismissed the complaint mainly because the plaintiff did not allege sufficient facts showing that the plaintiff had used antiperspirant that contained benzene or that the alleged contaminant caused the type of cancer at issue.
Well, this plaintiff is at it again—this time by filing a second lawsuit, in the same judicial district, alleging that she used a different antiperspirant that also allegedly contained benzene. Rooney v. Unilever United States, Inc., No. 22-716, 2023 U.S. Dist. LEXIS 74052 (E.D. La. Apr. 28, 2023). Comically, the plaintiff alleged in this second lawsuit that she used the defendant’s antiperspirant exclusively for ten years. Uh, what about that other federal lawsuit, the one where you alleged, under threat of Rule 11 sanctions, that you used another antiperspirant? This plaintiff’s dueling lawsuits remind us of the scene from the movie musical Singin’ in the Rain, where the fictional silent film star Lina Lamont (played beautifully by actress Jean Hagen) boasts of giving an “exclusive interview to every paper in town.”
Ms. Lamont and the attorneys representing our antiperspirant plaintiff have something in common: They all hold a similarly loose understanding of the word “exclusive.” (As an aside, many people consider Singin’ in the Rain to be the greatest movie musical of all time, and the film is best known for the dancing trio of Gene Kelly, Donald O’Connor, and Debbie Reynolds. Fewer people know that Singin’ in the Rain was only a modest commercial success when it was first released in 1952, and that it earned only two Academy Award nominations: Best Musical Score and Best Supporting Actress—for Jean Hagen as Lina Lamont. She did not win, but for the record, your bloggers would have voted for her.)
The plaintiff in Rooney wised up and amended her complaint to allege that she used the defendant’s antiperspirant “almost exclusively,” so she fixed that self-contradiction. But she did not and could not fix the core problem with her complaint—the inability to plead causation. Even Valisure purported to find benzene in only some antiperspirant samples, not all. This variability from one lot to the next left plaintiff unable to allege that she was exposed to an allegedly contaminated lot. She tried to fill that gap with the Universal Product Code (or UPC) for the product she used. UPC barcodes are ubiquitous and are on virtually every retail product that is bought and sold, but they do not identify a product’s lot. Without that link, the plaintiff could not plausibly allege benzene exposure. 2023 U.S. Dist. LEXIS 74052, *7-*8.
The plaintiff’s causation allegation faltered for other reasons as well. Her bare allegations that she was “exposed to impermissibly high levels of benzene” were too conclusory to warrant credit. And, more significantly, while long-term exposure to benzene has been associated with various health issues, none of those factual allegations suggested any connection between benzene and the plaintiff’s alleged type of cancer. Id. at *9-*10. Moreover, this plaintiff knew that because the judge in the plaintiff’s other case told her so: “As Judge Vance observed in her order dismissing plaintiff’s parallel claims against [another company], the manufacturer of [plaintiff’s other] antiperspirant, ‘[p]laintiffs’ failure to allege facts showing a causal connection between [Rooney’s] injury and defendant’s allegedly inadequate warning renders plaintiffs’ claim implausible.’” Id. at *9 (some internal quotations omitted). We also wrote it in our blog, but we suppose the plaintiff and her attorneys are not regular readers.
The district court dismissed the plaintiff’s remaining claims for various reasons. Claims such as negligence, strict liability, and deceptive advertising were outside the Louisiana Product Liability Act, which is the exclusive means under Louisiana law to recover damages caused by a product. Id. at *10-*11. There likewise is no private right of action under the FDCA. Id. at *11. Finally, the plaintiff sought injunctive relief, but because the defendant has discontinued the product, she had no standing. Id. at *11-*12.
The district court denied leave to amend and dismissed the action with prejudice. This is the correct result, given the incurable defects in the plaintiff’s allegations. This court, however, was exceptionally patient. The plaintiff had already amended her complaint twice, and when it because clear that the plaintiff had not addressed the difference between a lot number (which identifies a particular product lot) and a UPC number (which does not), the court offered the plaintiff an opportunity to file a supplement. The plaintiff declined. Id. at *12-*13.
We will enjoy our remaining time in New Orleans. We will surely have some chicory coffee, and we may even stand in line (again) to eat a delicious bowl of gumbo. We highly recommend that you all do the same.