We’re in New Orleans for the annual DRI Drug & Medical Gadget Seminar, so we might be remiss if we handed up the chance to jot down on a Louisiana case. The case will sound acquainted. We reported on the dismissal of a case introduced by the similar plaintiff alleging that benzene in antiperspirant prompted most cancers. That order was noteworthy for not less than two causes. First, the plaintiff based mostly her allegations on testing carried out by Valisure, a lab that holds itself out as “the pharmacy that checks,” however has develop into higher recognized these days for producing take a look at outcomes that drive litigation. Second, the Japanese District of Louisiana dismissed the criticism primarily as a result of the plaintiff didn’t allege adequate details exhibiting that the plaintiff had used antiperspirant that contained benzene or that the alleged contaminant prompted the kind of most cancers at difficulty.
Properly, this plaintiff is at it once more—this time by submitting a second lawsuit, in the identical judicial district, alleging that she used a totally different antiperspirant that additionally allegedly contained benzene. Rooney v. Unilever United States, Inc., No. 22-716, 2023 U.S. Dist. LEXIS 74052 (E.D. La. Apr. 28, 2023). Comically, the plaintiff alleged on this second lawsuit that she used the defendant’s antiperspirant completely for ten years. Uh, what about that different federal lawsuit, the one the place you alleged, underneath menace of Rule 11 sanctions, that you just used one other antiperspirant? This plaintiff’s dueling lawsuits remind us of the scene from the film musical Singin’ within the Rain, the place the fictional silent movie star Lina Lamont (performed superbly by actress Jean Hagen) boasts of giving an “unique interview to each paper on the town.”
Ms. Lamont and the attorneys representing our antiperspirant plaintiff have one thing in frequent: All of them maintain a equally free understanding of the phrase “unique.” (As an apart, many individuals contemplate Singin’ within the Rain to be the best film musical of all time, and the movie is greatest recognized for the dancing trio of Gene Kelly, Donald O’Connor, and Debbie Reynolds. Fewer individuals know that Singin’ within the Rain was solely a modest industrial success when it was first launched in 1952, and that it earned solely two Academy Award nominations: Finest Musical Rating and Finest Supporting Actress—for Jean Hagen as Lina Lamont. She didn’t win, however for the file, your bloggers would have voted for her.)
The plaintiff in Rooney wised up and amended her criticism to allege that she used the defendant’s antiperspirant “nearly completely,” so she fastened that self-contradiction. However she didn’t and couldn’t repair the core downside along with her criticism—the lack to plead causation. Even Valisure purported to search out benzene in just some antiperspirant samples, not all. This variability from one lot to the subsequent left plaintiff unable to allege that she was uncovered to an allegedly contaminated lot. She tried to fill that hole with the Common Product Code (or UPC) for the product she used. UPC barcodes are ubiquitous and are on just about each retail product that’s purchased and bought, however they don’t determine a product’s lot. With out that hyperlink, the plaintiff couldn’t plausibly allege benzene publicity. 2023 U.S. Dist. LEXIS 74052, *7-*8.
The plaintiff’s causation allegation faltered for different causes as properly. Her naked allegations that she was “uncovered to impermissibly excessive ranges of benzene” have been too conclusory to warrant credit score. And, extra considerably, whereas long-term publicity to benzene has been related to varied well being points, none of these factual allegations prompt any connection between benzene and the plaintiff’s alleged sort of most cancers. Id. at *9-*10. Furthermore, this plaintiff knew that as a result of the decide within the plaintiff’s different case informed her so: “As Decide Vance noticed in her order dismissing plaintiff’s parallel claims in opposition to [another company], the producer of [plaintiff’s other] antiperspirant, ‘[p]laintiffs’ failure to allege details exhibiting a causal connection between [Rooney’s] harm and defendant’s allegedly insufficient warning renders plaintiffs’ declare implausible.’” Id. at *9 (some inside quotations omitted). We additionally wrote it in our weblog, however we suppose the plaintiff and her attorneys are usually not common readers.
The district court docket dismissed the plaintiff’s remaining claims for varied causes. Claims equivalent to negligence, strict legal responsibility, and misleading promoting have been outdoors the Louisiana Product Legal responsibility Act, which is the unique means underneath Louisiana regulation to get better damages brought on by a product. Id. at *10-*11. There likewise is not any personal proper of motion underneath the FDCA. Id. at *11. Lastly, the plaintiff sought injunctive reduction, however as a result of the defendant has discontinued the product, she had no standing. Id. at *11-*12.
The district court docket denied go away to amend and dismissed the motion with prejudice. That is the proper consequence, given the incurable defects within the plaintiff’s allegations. This court docket, nonetheless, was exceptionally affected person. The plaintiff had already amended her criticism twice, and when it as a result of clear that the plaintiff had not addressed the distinction between rather a lot quantity (which identifies a selected product lot) and a UPC quantity (which doesn’t), the court docket provided the plaintiff a chance to file a complement. The plaintiff declined. Id. at *12-*13.
We are going to get pleasure from our remaining time in New Orleans. We are going to certainly have some chicory espresso, and we might even stand in line (once more) to eat a scrumptious bowl of gumbo. We extremely advocate that you just all do the identical.