E.D. Louisiana Dismisses Antiperspirant/Benzene Claims | Reed Smith – JDSupra – JD Supra

In preparation for our OTC panel subsequent week at ACI-NY, we have now stored our eyes open for any OTC circumstances that elevate fascinating points.  In the present day’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 detrimental breast most cancers because 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 might have heard of a Valisure earlier than, as its testing, and outcomes allegedly displaying 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 unique kind of checks after we see a purported unbiased outfit that appears to cooperate carefully with plaintiff attorneys. 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 searching 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 enough warnings.  The plaintiffs additionally alleged that the defendant was liable underneath 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, nevertheless it’s not our job to assist plaintiffs writer complaints – our criticisms are strictly damaging), 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 continuously arising in OTC circumstances: 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 often present in quite a lot of sources.  The responsibility argument rested on the defendant’s competition that it had complied with federal laws relating to warnings.

The Rooney court docket held that the plaintiffs’ allegations of publicity fell quick.  The plaintiffs said “in cursory trend” that the cans of antiperspirant contained benzene. There have been inadequate factual allegations.  The plaintiffs stated the entire cans examined by Valisure contained benzene, which, if true, may assist plausibility that the cans utilized by the plaintiff contained benzene.  However the court docket learn the Valisure Citizen’s Petition NOT to say that every 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.   Nevertheless 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 didn’t plead that the contaminant may cause the kind of most cancers at problem.  The plaintiffs alluded to such a causal connection being “properly documented,” however they didn’t refer the court docket to such documentation.  The omission was “placing” when in comparison with the extra detailed allegations about research linking benzene to most cancers on the whole.   Because it was, all of the second amended grievance contained was an “unsupported, conclusory assertion of reality that’s inadequate on the pleading stage.” (We’ve seen in lots of latest mass tort circumstances, together with OTC circumstances, how plaintiff attorneys may be reasonably, er, bold in alleging connections with varied 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 non-public proper of motion.  Some other claims additionally failed resulting from exclusivity of the Louisiana product legal responsibility statute.  

If the antiperspirant at problem got here in roll-on kind, we’d not have the ability to withstand a closing “Les bon temps rouler.”  Nevertheless it didn’t, so we’ll as a substitute merely say that we hope to see lots of you in NYC subsequent week.

Comments are closed.