We have previously analogized that when a case is dismissed for failure to state a claim under Rule 12, that is like the plaintiff not even getting to first base.  And that when a complaint is dismissed for lack of standing, a rarer form of dismissal, the plaintiff couldn’t even get up to bat, let alone get on base.  A dismissal for lack of standing recently occurred in Gibriano v. Esai, Inc., 2024 U.S. Dist. LEXIS 59535 (D.N.J. Mar. 31, 2024).  When that kind of dismissal occurs, you can bet the complaint is really bogus.

And this wasn’t plaintiff’s first attempt.  She got benched in 2022 when her case was dismissed for lack of standing the first time.  But the court saw fit to giver her another chance.  This time the game has officially been called and plaintiff never got out of the dugout.  That’s because, plaintiff, as the would-be class representative, did not claim to be injured in the slightest.

Plaintiff was prescribed a weight loss medication that she purchased and used for about six months.  Shortly after she stopped using the drug, it was withdrawn from the market due to cancer risks.  Plaintiff alleges the drug was ineffective for her because “it did not meaningfully impact her weight.”  Id. at *4.  But her claim for damages stems from her allegation that she paid a “premium” for the drug based on her understanding that it was safe.  Id. at *4-5.  In other words, the only damages that plaintiff (and the supposed class) sought were of the existential varietal—some difference in the subjective “worth” versus the purchase price of the medication.  But that is too speculative a theory of injury to establish standing. 

To have standing, plaintiff must allege an “injury-in-fact” which requires plaintiff have sufficient evidence to demonstrate she suffered a “concrete and particularized” injury.  Id. at *10-11.  Plaintiff seems to hang her hat on her allegation that the drug was ineffective because she did not lose a meaningful amount of weight.  But that is a subjective, non-concrete assertion.  Id. at *12. 

Further plaintiff alleges that if the alleged cancer risk had been disclosed, she either would not have purchased the medication or would have paid less.  “However, Plaintiff does not allege that she suffered from cancer, is at risk of cancer, or any other health problems as a result of using [the drug].”  Id. at *14. Plaintiff was relying on an unrealized increased risk, not affecting either her actual safety or the efficacy of the drug.  That is a purely economic injury.  “Plaintiff seeks to be reimbursed for purchasing a functional product that she has already consumed without incident; this is legally insufficient to establish Article III standing.”  Id. at *15-16.  The court relied on Third Circuit precedent which requires an allegation either that the product failed to work as intended or was worth “objectively” less than one could reasonably expect for standing to exist.  See Koronthaly v. L’Oreal USA, 374 F. App’x 257, 258 (3d Cir. 2010).  Plaintiff had neither here. 

Plaintiff tried to liken her case to a case where plaintiffs were unable to use a portion of the medication they purchased.  But in that instance, plaintiffs could demonstrate an economic theory based on the value of the portion of the product that was unusable.  Gibriano, at *17.  Here plaintiff may contend she would not have purchased the drug had she known about the cancer risk, but she used all of the product and therefore has no quantifiable damages. 

Plaintiff also offered no evidence to support that the drug she purchased was unsafe for her.  In fact, the court found her allegations directly to the contrary. Plaintiff did not allege that she developed cancer or was at risk for developing cancer as a result of using the drug.  Id. at *18-19.  Plaintiff’s only evidence in support of a price difference between a “safe” and “unsafe” version of the drug was a subjective consumer survey.   Plaintiff has no evidence that she, or anyone, could have purchased an “unsafe” drug at the suggested reduced price.  Moreover, she does not allege that the economic benefits she received “were anything less than the price she paid.”  Id. at *19. 

The fact that others have suffered a concrete injury (cancer or other health conditions), does not mean plaintiff has suffered an injury-in fact.  Plaintiff’s claim is really nothing than buyer’s remorse.  She wished she had not purchased the drug but having done so and having consumed all of it, she has not suffered an economic injury that confers standing.