UPDATE: Judge Cavanaugh Dismisses More Claims of Contaminated Cosmetics
Regular readers will remember that in February I posted about a decision from U.S. District Judge Dennis Cavanaugh from New Jersey, in which he was faced with a putative class action alleging economic harm from the inclusion of trace amounts of certain chemicals in baby shampoo and other cosmetics. On April 15, Judge Cavanaugh ruled in a similar case brought by residents of New Jersey and Kentucky. Once again, the court dismissed most of the claims. Crouch v. Johnson & Johnson Consumer Companies, Inc., 2010 WL 1530152 (D.N.J. Apr. 15, 2010).
The court began with the issue of standing. It held that mere allegations that a chemical was included in a product -- without more -- was not enough to create constitutional standing to sue. Citing Williams v. Purdue Pharma Co., 297 F. Supp. 2d 171 (D.D.C. 2003), the court observed that without alleging that a product failed to perform as advertised, the plaintiff has received the basis of his bargain and has no economic injury. 2010 WL 1530152 at *4. The court concluded that -- with the exception of those products alleged to actually contain chemicals that the Food and Drug Administration has banned from use in cosmetics -- the plaintiffs lacked standing to sue. In doing so, the court winnowed the products involved down to J&J's Baby Shampoo and Wal-Mart's Equate Tearless Baby Wash.
The court then proceeded to the Rule 12(b)(6) motions. With respect to the New Jersey plaintiff, the court held that New Jersey's Product Liability Act applied to plaintiff's claims, and the PLA superseded all other causes of action. Plaintiff's attempt to plead around the PLA by seeking only economic damages made no difference; the case was still governed exclusively by the PLA, and plaintiff has been unable to state a claim.
With respect to the Kentucky plaintiff, the court held that Kentucky law -- rather than New Jersey law -- applied. Moreover, the court held that Kentucky's court of appeals appears to have taken the exact opposite approach to the interaction between the state's Product Liability Act and Consumer Fraud Act. Thus, the court concluded, the "expansive reach of the Kentucky [Consumer Protection Act] appears to encompass and allow the assertion of products liability/personal injury tort claims." 2010 WL 1530152 at *9. Accordingly, the Court refused to dismiss the consumer fraud act claims.
The court also upheld the Kentucky plaintiff's breach of warranty claims under the [mistaken] belief that state warranty law is "uniform." Id. at *10. But see Compaq Computer Corporation v. LaPray, 135 S.W.3d 657 (Tex. 2004) (state express warranty law differs across the country).
But the court dismissed the Kentucky plaintiff's unjust enrichment claim, because plaintiff failed to plead that he suffered any injury that is not adequately remedied by an action at law.
The court's partial grant of defendants' motion to dismsiss was without prejudice. I will continue to monitor the litigation and keep you posted regarding developments.
