You Get What You Pay For

A California federal judge recently dismissed Plaintiff’s consumer fraud class action complaint against Johnson& Johnson (“J&J”), alleging injuries stemming from her purchase of J & J’s Baby Powder from 1950 to 2013.  Plaintiff Mona Estrada, on behalf of herself and others similarly situated, claimed that she had purchased Baby Powder for personal use after reading the label and determining the product was safe to use.  Estrada’s claims mirror the claims alleged in the personal injury suits that have been filed regarding the personal use of Baby Powder.  That is, J&J was aware of the increased risk of ovarian cancer associated with the personal care use of talc, the primary ingredient in Baby Powder, and failed to warn purchasers of that risk.  While the allegations are essentially the same in the two types of cases, there was one important distinction here – Estrada did not allege that she suffered from ovarian cancer and could not demonstrate an economic injury-in-fact.  The judge wasn’t having it and dismissed her case.

Estrada brought her suit against J&J for (1) violation of the California Consumer Legal Remedies Act; (2) violation of California’s Unfair Competition Law; (3) negligent misrepresentation; and (4) breach of implied warranty.  The Court found that Plaintiff did not allege any injury sufficient to meet Article III standing for any of her claims.  To have standing to assert an economic injury-in-fact, the Court explained, Plaintiff must establish that she was deceived, and either paid a premium for the product or would have purchased an alternative product.  If, however, Plaintiff received the benefit-of-the-bargain – if she got what she paid for – Plaintiff cannot have an injury sufficient to satisfy Article III standing.  Here the Court determined that Plaintiff’s continued use of the product for decades suggests that Plaintiff did indeed receive the benefit of the bargain and that it was worth the price.  According to the Court, Plaintiff got exactly what she paid for – elimination of friction of the skin, absorption of moisture and freshness.  Her only complaint against the Baby Powder was the alleged risk of ovarian cancer.  However because Plaintiff received the benefit of the bargain and because she did not allege that she had ovarian cancer caused by the Baby Powder, Plaintiff did not suffer from any actual or imminent injury and therefore had no standing to bring her claims.  Case dismissed.

We’ll wait and see if this changes the shape of the emerging talc litigation.  The Court’s ruling based on a lack of injury suggests we may start to see cases alleging sub-cellular harm necessitating medical monitoring.  For now, it appears as though plaintiffs’ firms are still actively soliciting clients for various different types of talc lawsuits.