E.D. Louisiana Dismisses Antiperspirant/Benzene Claims – Lexology

In preparation for our OTC panel subsequent week at ACI-NY, we have now saved our eyes open for any OTC instances that elevate fascinating points. Immediately’s case, Rooney v. Procter & Gamble Co., 2022 U.S. Dist. LEXIS 210218 (E.D. La. Nov. 21, 2022), entails a declare by the plaintiffs {that a} lady developed triple destructive breast most cancers on account of utilizing an antiperspirant that she asserts contained benzene.

The assertion that benzene was within the antiperspirant rested on testing by Valisure, an analytical pharmacy. A few of you could have heard of a Valisure earlier than, as its testing, and outcomes allegedly exhibiting contamination, have been relied upon by plaintiffs in different mass torts. Valisure calls itself “the pharmacy that checks.” Maybe we’re cynical, however we consider a special kind of checks after we see a purported unbiased outfit that appears to cooperate carefully with plaintiff legal professionals. Right here, Valisure ran exams on batches of the antiperspirant and got here up with concentrations of benzene considerably increased than ranges beneficial by OSHA. Valisure filed a Citizen’s Petition with the FDA looking for a recall of antiperspirant batches containing an excessive amount of benzene. (Sound acquainted?) The FDA had not responded to the Citizen’s Petition. The defendant voluntarily applied a recall of sure batches of the antiperspirant.

Earlier than the court docket was the defendant’s movement to dismiss the plaintiffs’ second amended grievance. The plaintiffs alleged that the defendant violated the Louisiana Merchandise Legal responsibility Act by promoting antiperspirants with out issuing sufficient warnings. The plaintiffs additionally alleged that the defendant was liable below theories of negligence, gross negligence, strict legal responsibility, and “fault,” and that the defendant violated the FDCA. A few of these claims appear bizarre (a few of what’s lacking additionally appears bizarre, but it surely’s not our job to assist plaintiffs creator complaints – our criticisms are strictly harmful), however keep in mind, we’re in Louisiana. Not that we’re complaining. The persons are enjoyable, the meals is nice, and did we point out that the Decide on this case dismissed the second amended grievance?

Why? Within the movement to dismiss, the defendant argued that the plaintiffs failed plausibly to allege (1) causation and (2) breach of an obligation to warn. The causation argument rested on a difficulty often arising in OTC instances: did the plaintiff use sufficient of the product to trigger the alleged hurt? That query is especially essential the place, as right here, the alleged contaminant (benzene) is usually present in quite a few sources. The obligation argument rested on the defendant’s competition that it had complied with federal laws concerning warnings.

The Rooney court docket held that the plaintiffs’ allegations of publicity fell quick. The plaintiffs acknowledged “in cursory trend” that the cans of antiperspirant contained benzene. There have been inadequate factual allegations. The plaintiffs stated all the cans examined by Valisure contained benzene, which, if true, may help plausibility that the cans utilized by the plaintiff contained benzene. However the court docket learn the Valisure Citizen’s Petition NOT to say that each one examined cans contained benzene. The plaintiffs tried to backfill by matching the lot numbers of their cans with lot numbers testing constructive within the Valisure testing. However it was too late for that. That allegation was nowhere within the second amended grievance. We suppose it’s going to reside within the third amended grievance, because the court docket’s dismissal was with out prejudice. Grrrrr.

The second amended grievance additionally did not plead that the contaminant may cause the kind of most cancers at situation. The plaintiffs alluded to such a causal connection being “nicely documented,” however they did not refer the court docket to such documentation. The omission was “putting” when in comparison with the extra detailed allegations about research linking benzene to most cancers generally. Because it was, all of the second amended grievance contained was an “unsupported, conclusory assertion of truth that’s inadequate on the pleading stage.” (We’ve observed in lots of latest mass tort instances, together with OTC instances, how plaintiff legal professionals could be fairly, er, bold in alleging connections with numerous cancers. Did we are saying ”bold”? How about sloppy?)

To the extent the plaintiffs tried to allege FDCA violations, such claims have been dismissed for lack of a personal proper of motion. Every other claims additionally failed because of exclusivity of the Louisiana product legal responsibility statute.

If the antiperspirant at situation got here in roll-on type, we might not have the option to withstand a last “Les bon temps rouler.” However it didn’t, so we’ll as an alternative merely say that we hope to see a lot of you in NYC subsequent week. 

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