Back in 1997, a Chicago Tribune columnist wrote a hypothetical commencement speech that garnered a lot of attention. Like most commencement speeches, it offered uplifting advice to the bright young minds about to enter the working world. Unlike most, it directed the graduates to wear sunscreen. That suggestion (often wrongly attributed to Kurt Vonnegut) became A Thing. Baz Luhrmann that same year put out a song called “Everybody’s Free to Wear Sunscreen.”
It seems that many plaintiff lawyers today harbor a different view. There’s a not-so-mini-industry of suing manufacturers for selling sunscreen allegedly contaminated with benzene. In Cascio v. Johnson & Johnson, et al., 2024 WL 693489 (N.D. Ga. Feb. 20, 2024), the plaintiff, who said she applied an astonishing amount of sunscreen — several times per day, though a little less if it was raining — claimed that benzene-tainted sunscreen caused her to suffer from acute lymphoblastic leukemia, “a disease that is rarely seen in adults without benzene exposure.” All lots of the sunscreen product (one of the more expensive brands on the drugstore shelves) had been recalled “in response to a citizen petition to the FDA by Valisure, LLC.” The complaint included causes of action for product liability, negligence, misrepresentation, breach of warranty, and loss of consortium.
The defendants moved to dismiss the complaint. They argued that the plaintiff failed to allege product identification, causation, and misrepresentation. The claims for loss of consortium and punitive damages, being purely derivative, would also go away.
And so they did. The Cascio court agreed that the plaintiffs failed to allege causation and, therefore, dismissed all the claims.
We’re not going to ask you to stop us if you’ve heard this before, because we know you have.This is yet another claim based on the Valisure lab’s product testing results. Valisure reported that it found benzene in certain batches of sunscreen.
Valisure did not test the particular tube of sunscreen actually used by the named plaintiff. Rather, Valisure tested 14 batches of sunscreen and found excessive benzene in 10 of them. One of those batches was referenced in the complaint, but it does not appear to be a batch relevant to the particular sunscreen used by the plaintiff. It was easy enough for the court to discount the positive results from products the plaintiff did not use. Thus, the question is whether the one positive result in the batch referenced by the plaintiff legitimately supports an inference that the sunscreen used by the plaintiff contained benzene. The court held that such an inference was not sufficiently supported, because Valisure admitted that there was “significant variability from batch to batch, even within a single brand.”
Given that Valisure’s limited batch testing could not establish causation, the plaintiff was left to argue that the mere fact of a product recall should establish a defect in the sunscreen used by the plaintiff. The Cascio court rejected that argument because the fact of a product recall, by itself, does not establish a product defect. Recalls can be over inclusive. (The Cascio court cites a couple of good cases supporting this point). Moreover, the recall applied to only certain batches, and there was no allegation that the plaintiff’s sunscreen came from any of those batches. (Again, the Cascio court collected several nice cases on this point, including other favorable Valisure-based decisions.)
The plaintiff cited three cases that seemed to go the other way, insofar as they denied motions to dismiss similar allegations. But those cases contained no reasoning to justify a departure from the majority of cases supporting dismissal — the cases that framed what we and the Cascio court deem the better rule.
That last point gladdens our flinty defense hearts. We practice in far too many jurisdictions where courts deal with righteous motions to dismiss via what amounts to postcard denials. There is no reasoning. There is not even a pretense of justification. Now maybe that, er, reticence can be justified by overwhelming caseloads. Or maybe it is sheer lassitude. Or fear of reversal. Or reflexive pro-plaintiff-ness. There are some plaintiff lawyers who argue with a straight face that motions to dismiss violate the constitutional right to a jury trial, and there are some courts silly enough to agree. Whatever the reason for these substance-less summary denials, they are pernicious. Cass Sunstein, the most cited law professor in America (and our Con Law teacher way back when) has a draft article online about what it means to be a classical liberal. He’s talking about “liberal” as in John Stuart Mill, not, say, AOC. Part of being a liberal in this sense means respecting the rule of law. More specifically, it means, among many other things, “reason giving in the public domain.” Not giving reasons is a step toward authoritarianism. One would think that the sine qua non of judging is making decisions and supplying reasons for such decisions. Some judges do neither. Some grudgingly do the first, but not the second. Not to put too fine a point in it, this practice stinks.
We are hardly unbiased on this point. Summary denials are a disappointment to defendants. They wreak havoc in a particular case and offer no guidance to aid future conduct. But at least, following the Cascio precedent, summary denials should count for nothing in other cases going forward. If there are no reasons, there should be no precedential force.
But back to the matter at hand. The result in Cascio is sound, it does have ample precedential force, and we are always happy to see Valisure testing get precisely the respect it deserves – darned little. We offer a tip of our cyber cap to prevailing defense counsel, Robyn Maguire and Nadine Kohane at Barnes & Thornburg.