We’ve seen a latest uptick in product legal responsibility lawsuits introduced towards over-the-counter (OTC) and different client merchandise. (Shameless plug: we will likely be on a panel discussing such litigation at ACI in NYC on January 23-24.). These are merchandise that don’t require a prescription. Possibly plaintiff attorneys desire instances with none pesky realized middleman who would possibly wreck the warning and causation theories. Or perhaps the shortage of documentation permits a sure, er, flexibility, with regards to pleading product utilization.  Or does that flexibility turn into a internet minus as a result of lack of specificity can immediate dismissal off the case?

We’ve written a few instances on this weblog about instances during which plaintiffs assert that they suffered most cancers because of antiperspirants containing benzene. See right here, for instance. Two of these instances concerned the selfsame plaintiff. In one case, that plaintiff attributed the most cancers to 1 product. Within the different case, that plaintiff attributed the most cancers to a different product. In every case, the most cancers was attributed to a product the plaintiff used “solely” or “nearly solely.”  Now that’s some severe flexibility.  (And a few of you assume we’re unduly cynical.) The courts dismissed these instances, and rightly so.  However – talking of pesky and suppleness – the courts in these antiperspirant instances have been a little bit too lenient when it got here to allowing modification of the criticism. 

Immediately’s case is analogous.  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 uncommon blood most cancers resulting from benzene in aerosol private care merchandise (antiperspirant and dry shampoo). As within the different instances we mentioned on this weblog,  the plaintiff tried to depend on benzene information from the now infamous laboratory referred to as Valisure. That very same so referred to as “impartial” laboratory has proven up in different mass torts. Valisure’s  methodology has been criticized in some litigations, however within the antiperspirant instances the difficulty has been extra of a so what. Do Valisure’s findings of benzene in sure product heaps (and a subsequent product recall) assist  a lawsuit?

Nope. 

The Foreman courtroom dismissed the criticism, and set out numerous causes for doing so.  

Proximate Causation

Valisure didn’t take a look at any of the bottles that have been ever within the possession of the decedent. Slightly – and that is normally the best way it really works in these instances – Valisure examined three batches of the antiperspirant in query.  Benzene was present in all three batches, although the quantities have been “extremely variable.”  Plaintiff attorneys have constructed a cottage business of suing client product corporations primarily based on these Valisure take a look at outcomes.  There’s an economic system of scale. One measurement matches all.  Besides it doesn’t. There was no proof that any of the testing corresponded to any of the product heaps the decedent used.  The plaintiffs contended that “every” bottle of the antiperspirant product contained benzene, however that rivalry was conclusory and unsupported by the Valisure checks.  The courtroom concluded that the plaintiffs had not adequately set forth a connection between the plaintiff and any benzene contamination. 

Furthermore, even placing apart the difficulty of product utilization, the criticism didn’t adequately plead that the decedent’s most cancers was attributable to benzene within the merchandise at concern.  Benzene is usually discovered in lots of generally encountered sources, resembling gasoline fumes, automobile exhaust, and cigarette smoke. The plaintiffs tried to avoid wasting their declare by pointing to extra info not contained within the criticism, resembling statements by the Myeloma Basis and American Most cancers Society concerning an affiliation between benzene publicity and a number of myeloma, however the Foreman courtroom wouldn’t allow the plaintiffs to make use of their transient as an modification to their criticism.  

Development/composition

That’s Louisiana communicate for manufacturing defect.  The plaintiffs had not specified how the merchandise in query deviated from the specs, besides to say that the presence of benzene could be a departure from the specs.  However that takes us again as to whether the criticism adequately included factual allegations that there was benzene within the merchandise the decedent truly used.  There was not, so the development/composition declare was dismissed as being purely conclusory.   

Design defect

Lousiana regulation requires {that a} design defect declare should present the existence of an alternate design that might have prevented the hurt allegedly suffered.  What was the choice design right here?  You in all probability guessed it: a product that didn’t comprise benzene.  Duh.  Besides the duh must be aimed on the plaintiffs.  The Foreman courtroom held that an alternate design of a product “not containing benzene” is inadequate, as a result of the criticism should additionally describe “the burden of adopting an alternate design.”  Is an alternate design possible?  The criticism doesn’t inform us, in all probability as a result of there isn’t any strategy to present that.  And which means there isn’t any method the design defect declare can proceed. 

Failure to warn

The Louisiana product legal responsibility statute offers {that a} product is unreasonably harmful if “on the time the product left its producer’s management, the product possessed a attribute which will trigger injury and the producer failed to make use of cheap care to offer an satisfactory warning of such attribute and its risks to customers and handlers if the product.”  The defendant identified that the plaintiff had not recognized the attribute that induced injury, and in addition had not recognized any violation of any federal regulation or requirement in its labeling.  The plaintiffs responded that the defendant ought to have warned of the presence of benzene — however that takes us again to the basic flaw within the criticism, which is the mismatch between the Valisure take a look at outcomes and the decedent’s precise use of the actual merchandise.  With out connecting the batch heaps utilized by the decedent to the batch heaps examined by Valisure or the product recall, the criticism was  impermissibly conclusory. 

Breach of guarantee

The plaintiffs alleged breaches of each implied and specific guarantee as a result of, why not?  Really, Louisiana regulation provides the reply to the why not. First, Louisiana doesn’t acknowledge implied guarantee claims in product legal responsibility instances. Second, the specific guarantee declare was primarily based on the producer’s failure to checklist benzene as an ingredient. However “an ingredient checklist will not be synonymous with an specific guarantee as a result of it doesn’t affirm a specified attribute or high quality. The absence of benzene as an ingredient could indicate that it was not current, however this isn’t an implicit assertion or affirmative assure.”  

So goodbye to the guarantee claims. And goodbye to the criticism, proper?  Really, perhaps it’s extra of a till-we-meet-again. The Foreman courtroom adopted the Rule 15 instruction {that a} courtroom ought to “freely give” go away to amend when “justice so requires,” and noticed no cause to foreclose additional modification. What undue prejudice might potential befall the defendant.  Effectively, there’s the defendant’s burden of being required to litigate a meritless declare. Then there’s our burden of getting to put in writing about such a meritless declare. And let’s not overlook about your burden of getting to learn our purple prose about it, repeatedly.