Products Liability Law Daily Wrap Up, CAUSATION—HOUSEHOLD PRODUCTS—S.D. Cal.: Failure to specifically identify cosmetic product allegedly causing injury leads to dismissal of claim, (Feb 12, 2025)

By Susan L. Smith, JD, MA

A woman who contended that a cosmetic product she used for years contained benzene and caused her chronic lymphocytic leukemia failed to sustain her claims against the manufacturer and two retailers of the product.

A federal district court in California dismissed all claims brought against a cosmetic product manufacturer and two retail stores by a woman who contended that the benzene allegedly found in certain Herbal Essence products caused her to develop chronic lymphocytic leukemia (CLL) and bone marrow cancer. The woman brought causes of action for (1) negligence, (2) failure to warn, (3) design defect, (4) manufacturing defect, (5) breach of implied warranty of merchantability, and (6) fraudulent concealment against Proctor & Gamble (P&G), Walmart, Inc., and Target Corporation. P&G, Walmart, and Target challenged all six of the woman’s claims on causation grounds, contending that each of the claims requires a plausible allegation that benzene exposure from the Herbal Essence products she purchased caused her CLL. The court concluded that the woman failed to specifically identify which cosmetic product she used that allegedly contained benzene; thus, the court dismissed all of her claims without prejudice and provided the woman the opportunity to amend her complaint (Quinn v. Proctor & Gamble Co., No. 24-CV-856 JLS (SBC) (S.D. Cal. Feb. 6, 2025)).

Background. The woman purchased Herbal Essence-branded dry shampoo and conditioner from Walmart and Target for years. P&G acquired the cosmetic brand in 2001. P&G expanded the Herbal Essence brand into aerosol spray shampoos and conditioners, the health care products at the center of the woman’s claims. The woman asserted that she was unaware of the alleged presence of significant and unsafe levels of benzene, a known human carcinogen, in certain products manufactured by P&G. She brought her complaint in the Superior Court of the State of California on November 9, 2023. Her complaint included refences to studies and other evidence from members of the scientific community, including governmental agencies and other entities that support the contention that exposure to benzene is detrimental to human health. P&G, Walmart, and Target removed the case to the federal district court on May 15, 2024.

Analysis. P&G, Target, and Walmart contended that the woman’s complaint failed the causation requirement for all six causes of action on two fronts with respect to whether the personal care products the woman used contained benzene and whether those same personal care products contained enough benzene to have caused her disease. They also argued that her fraudulent concealment claim lacked the requisite particularity required by Federal Rule of Civil Procedure 9(b). The court agreed that the causation arguments applied equally to all six of the woman’s causes of action.

Sufficiency of allegations related to exposure to benzene level in products. P&G, Target, and Walmart argued that the woman’s allegation that several products contained dangerous levels of benzene was far too conclusory because the woman did not specify how much benzene she believed was present in those products. They contended that allegations regarding the specific amount of benzene present in the products and allegations regarding the specific benzene level needed to elevate cancer risk were required to state a plausible claim. The woman argued that numerous studies and reports cited in her complaint not only suggested that benzene is dangerous, they also revealed a causal connection between benzene exposure and CLL. In addition, she alleged that exposure to even low levels of benzene can increase health risks. The court concluded that the studies cited by the woman satisfied her pleading requirement, suggesting a plausible connection between benzene exposure and CLL.

Sufficiency of allegations related to benzene exposure. P&G, Walmart, and Target also argued that the woman insufficiently alleged that she was exposed to benzene in the first place based on her general allegations that she used Herbal Essence personal care products but failed to reference the specific products she used. The court stated that under California law, a plaintiff must identify each product that caused the injury. The woman contended that she stated a plausible claim by alleging her habitual use of Herbal Essence dry shampoo and conditioner. In addition, she argued that she proffered evidence of benzene presence in the products from third-party testing, including Valisure Tests and P&G’s internal testing that resulted in the 2021 recall.

The court pointed out that in the two cases P&G, Walmart, and Target cited, the court dismissed the claims because the plaintiffs failed to match the product allegedly causing injury with the specific batch or lot number used by the plaintiff. As in the reviewed cases, the woman in this case failed to allege that she used personal care products from the same batch or lot as those tested by Valisure or identified in the P&G 2021 recall. However, the woman cited a long list of cases in which the court accepted defective product claims at a much higher level of generality. In two of those cases, the courts stood for the proposition that the generalized product allegations were enough at the pleading stage. The court noted that in this case, the woman had alleged even more evidence citing P&G’s recall in her complaint.

The court noted that the Ninth Circuit has not followed other circuits, which have held that in the context of defective products, it is not enough for a plaintiff to allege that a product line contains a defect or that a product is at risk for manifesting this defect; rather, plaintiffs must allege that their product actually exhibited the alleged defect. Thus, the court turned to the Supreme Court’s decision in Bell Atl. Corp. v. Twombly, 550 U.S. at 555 n.3 (2007), which focused on the plausibility of the claims and determined that a plaintiff in a defective product suit must allege more than a class of products or even a product line as previously allowed by courts in the past. Instead, the court found that a plaintiff must at least allege what the defective product is so the court can make a good faith determination as to whether the plaintiff’s claims are plausible. In this case, the woman failed to allege specifically which Herbal Essence products she purchased and used; thus, she failed to state a claim as to all six causes of action. Based on its findings, the court dismissed all of the woman’s claims without prejudice and granted her request for leave to amend, noting that she was situated to allege which of the Herbal Essence shampoos and conditioners she used.

The court also concluded that the woman’s allegations in support of her fraudulent concealment claim did not meet Rule 9(b)’s heightened pleading standard.

The case is No. 24-CV-856 JLS (SBC).

Judge: Sammartino, J.

Attorneys: Alexander Gamez (Boucher LLP) for Thaylia Donna Quinn. Christopher Keith Eppich (Covington & Burling LLP) for Proctor & Gamble Co. Keri E. Borders (King & Spalding LLP) for Wal-Mart Stores, Inc.

Companies: Proctor & Gamble Co.; Wal-Mart Stores, Inc.

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