We’ve noticed a recent uptick in product liability lawsuits brought against over the counter (OTC) and other consumer products. (Shameless plug: we will be on a panel discussing such litigation at ACI in NYC on January 23-24.). These are products that do not require a prescription. Maybe plaintiff lawyers prefer cases without any pesky learned intermediary who might wreck the warning and causation theories. Or maybe the lack of documentation permits a certain, er, flexibility, when it comes to pleading product usage. Or does that flexibility turn out to be a net minus because lack of specificity can prompt dismissal off the case?
We’ve written a couple of times on this blog about cases in which plaintiffs assert that they suffered cancer as a result of antiperspirants containing benzene. See here, for example. Two of those cases involved the selfsame plaintiff. In one case, that plaintiff attributed the cancer to one product. In the other case, that plaintiff attributed the cancer to another product. In each case, the cancer was attributed to a product the plaintiff used “exclusively” or “almost exclusively.” Now that is some serious flexibility. (And some of you think we are unduly cynical.) The courts dismissed those cases, and rightly so. But – speaking of pesky and flexibility – the courts in those antiperspirant cases were a little too lenient when it came to permitting amendment of the complaint.
Today’s case is similar. In Foreman v. Procter & Gamble, 2023 U. S. Dist. LEXIS 228148 (W.D. La. Dec. 20, 2923), the plaintiffs claimed that their decedent died from a rare blood cancer due to benzene in aerosol personal care products (antiperspirant and dry shampoo). As in the other cases we discussed in this blog, the plaintiff attempted to rely on benzene data from the now notorious laboratory called Valisure. That same so called “independent” laboratory has shown up in other mass torts. Valisure’s methodology has been criticized in some litigations, but in the antiperspirant cases the issue has been more of a so what. Do Valisure’s findings of benzene in certain product lots (and a subsequent product recall) support a lawsuit?
The Foreman court dismissed the complaint, and set out various reasons for doing so.
Valisure did not test any of the bottles that were ever in the possession of the decedent. Rather – and this is usually the way it works in these cases – Valisure tested three batches of the antiperspirant in question. Benzene was found in all three batches, though the amounts were “highly variable.” Plaintiff lawyers have built a cottage industry of suing consumer product companies based on these Valisure test results. There is an economy of scale. One size fits all. Except it doesn’t. There was no evidence that any of the testing corresponded to any of the product lots the decedent used. The plaintiffs contended that “each and every” bottle of the antiperspirant product contained benzene, but that contention was conclusory and unsupported by the Valisure tests. The court concluded that the plaintiffs had not adequately set forth a connection between the plaintiff and any benzene contamination.
Moreover, even putting aside the issue of product usage, the complaint did not adequately plead that the decedent’s cancer was caused by benzene in the products at issue. Benzene is commonly found in many commonly encountered sources, such as gasoline fumes, car exhaust, and cigarette smoke. The plaintiffs tried to save their claim by pointing to additional information not contained in the complaint, such as statements by the Myeloma Foundation and American Cancer Society regarding an association between benzene exposure and multiple myeloma, but the Foreman court would not permit the plaintiffs to use their brief as an amendment to their complaint.
That’s Louisiana speak for manufacturing defect. The plaintiffs had not specified how the products in question deviated from the specifications, except to say that the presence of benzene would be a departure from the specs. But that takes us back to whether the complaint adequately included factual allegations that there was benzene in the products the decedent actually used. There was not, so the construction/composition claim was dismissed as being purely conclusory.
Lousiana law requires that a design defect claim must show the existence of an alternative design that would have avoided the harm allegedly suffered. What was the alternative design here? You probably guessed it: a product that did not contain benzene. Duh. Except the duh should be aimed at the plaintiffs. The Foreman court held that an alternative design of a product “not containing benzene” is insufficient, because the complaint must also describe “the burden of adopting an alternative design.” Is an alternative design feasible? The complaint does not tell us, probably because there is no way to show that. And that means there is no way the design defect claim can proceed.
Failure to warn
The Louisiana product liability statute provides that a product is unreasonably dangerous if “at the time the product left its manufacturer’s control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its dangers to users and handlers if the product.” The defendant pointed out that the plaintiff had not identified the characteristic that caused damage, and also had not identified any violation of any federal regulation or requirement in its labeling. The plaintiffs responded that the defendant should have warned of the presence of benzene — but that takes us back to the fundamental flaw in the complaint, which is the mismatch between the Valisure test results and the decedent’s actual use of the particular products. Without connecting the batch lots used by the decedent to the batch lots tested by Valisure or the product recall, the complaint was impermissibly conclusory.
Breach of warranty
The plaintiffs alleged breaches of both implied and express warranty because, why not? Actually, Louisiana law supplies the answer to the why not. First, Louisiana does not recognize implied warranty claims in product liability cases. Second, the express warranty claim was based on the manufacturer’s failure to list benzene as an ingredient. But “an ingredient list is not synonymous with an express warranty because it does not affirm a specified characteristic or quality. The absence of benzene as an ingredient may imply that it was not present, but this is not an implicit statement or affirmative guarantee.”
So goodbye to the warranty claims. And goodbye to the complaint, right? Actually, maybe it’s more of a till-we-meet-again. The Foreman court followed the Rule 15 instruction that a court should “freely give” leave to amend when “justice so requires,” and saw no reason to foreclose further amendment. What undue prejudice could possible befall the defendant. Well, there’s the defendant’s burden of being required to litigate a meritless claim. Then there’s our burden of having to write about such a meritless claim. And let’s not forget about your burden of having to read our purple prose about it, again and again.