Monday, June 5, 2023

E.D. Louisiana Dismisses Antiperspirant/Benzene Claims—Once more


Photo of Steven Boranian

We’re in New Orleans for the yearly DRI Drug & Scientific Software Seminar, so we might be remiss if we handed up the chance to put in writing on a Louisiana case.  The case will sound acquainted.  We reported six months in the past at the dismissal of a case introduced by way of the similar plaintiff alleging that benzene in antiperspirant led to most cancers.  That order was once noteworthy for no less than two causes.  First, the plaintiff primarily based her allegations on checking out carried out by way of Valisure, a lab that holds itself out as “the drugstore that assessments,” however has develop into higher identified in recent years for generating take a look at effects that pressure litigation.  2d, the Jap District of Louisiana pushed aside the criticism principally for the reason that plaintiff didn’t allege enough information appearing that the plaintiff had used antiperspirant that contained benzene or that the alleged contaminant led to the kind of most cancers at factor. 

Neatly, this plaintiff is at it once more—this time by way of submitting a 2nd lawsuit, in the similar judicial district, alleging that she used a other antiperspirant that still allegedly contained benzene.  Rooney v. Unilever United States, Inc., No. 22-716, 2023 U.S. Dist. LEXIS 74052 (E.D. L. a.. Apr. 28, 2023).  Comically, the plaintiff alleged on this 2nd lawsuit that she used the defendant’s antiperspirant solely for ten years.  Uh, what about that different federal lawsuit, the only the place you alleged, beneath risk of Rule 11 sanctions, that you just used every other antiperspirant?  This plaintiff’s dueling court cases remind us of the scene from the film musical Singin’ within the Rain, the place the fictitious silent movie megastar Lina Lamont (performed superbly by way of actress Jean Hagen) boasts of giving an “unique interview to each paper on the town.” 

Ms. Lamont and the lawyers representing our antiperspirant plaintiff have one thing in not unusual:  All of them dangle a in a similar fashion unfastened working out of the phrase “unique.”  (As an apart, many of us imagine Singin’ within the Rain to be the best film musical of all time, and the movie is absolute best identified for the dancing trio of Gene Kelly, Donald O’Connor, and Debbie Reynolds.  Fewer folks know that Singin’ within the Rain was once just a modest industrial luck when it was once first launched in 1952, and that it earned most effective two Academy Award nominations:  Absolute best Musical Ranking and Absolute best Supporting Actress—for Jean Hagen as Lina Lamont.  She didn’t win, however for the report, 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 solely,” so she fastened that self-contradiction.  However she didn’t and may now not repair the core downside together with her criticism—the lack to plead causation.  Even Valisure purported to seek out benzene in only a few antiperspirant samples, now not all.  This variability from one lot to the following left plaintiff not able to allege that she was once uncovered to an allegedly infected lot.  She attempted to fill that hole with the Common Product Code (or UPC) for the product she used.  UPC barcodes are ubiquitous and are on nearly each retail product this is purchased and offered, however they don’t establish a product’s lot.  With out that hyperlink, the plaintiff may now not plausibly allege benzene publicity.  2023 U.S. Dist. LEXIS 74052, *7-*8. 

The plaintiff’s causation allegation faltered for different causes as smartly.  Her naked allegations that she was once “uncovered to impermissibly top ranges of benzene” had been too conclusory to warrant credit score.  And, extra considerably, whilst long-term publicity to benzene has been related to more than a few well being problems, none of the ones factual allegations instructed any connection between benzene and the plaintiff’s alleged form of most cancers.  Identification. at *9-*10.  Additionally, this plaintiff knew that for the reason that pass judgement on within the plaintiff’s different case informed her so:  “As Pass judgement on Vance seen in her order pushing aside plaintiff’s parallel claims in opposition to [another company], the producer of [plaintiff’s other] antiperspirant, ‘[p]laintiffs’ failure to allege information appearing a causal connection between [Rooney’s] damage and defendant’s allegedly insufficient caution renders plaintiffs’ declare unbelievable.’”  Identification. at *9 (some inside quotations ignored).  We additionally wrote it in our weblog, however we think the plaintiff and her lawyers aren’t common readers. 

The district court docket pushed aside the plaintiff’s closing claims for more than a few causes.  Claims equivalent to negligence, strict legal responsibility, and misleading promoting had been outdoor the Louisiana Product Legal responsibility Act, which is the unique method beneath Louisiana regulation to get better damages led to by way of a product.  Identification. at *10-*11.  There likewise isn’t any non-public proper of motion beneath the FDCA.  Identification. at *11. In spite of everything, the plaintiff sought injunctive aid, however for the reason that defendant has discontinued the product, she had no status.  Identification. at *11-*12.  

The district court docket denied depart to amend and pushed aside the motion with prejudice.  That is the right kind outcome, given the incurable defects within the plaintiff’s allegations.  This court docket, then again, was once exceptionally affected person.  The plaintiff had already amended her criticism two times, and when it as a result of transparent that the plaintiff had now not addressed the adaptation between so much quantity (which identifies a selected product lot) and a UPC quantity (which doesn’t), the court docket presented the plaintiff a possibility to report a complement.  The plaintiff declined.  Identification. at *12-*13. 

We will be able to revel in our closing time in New Orleans.  We will be able to indisputably have some chicory espresso, and we will also stand in line (once more) to devour a scrumptious bowl of gumbo.  We extremely counsel that you just all do the similar. 


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