Health Law Daily Wrap Up, GENERAL HEALTH CARE NEWS—D.S.C.: Products liability claims against maker of Peridox Disinfectant Cleaner may go forward, (Sep 20, 2024)

By Nicholas Kaster, J.D.

The court dismissed without prejudice the breach of warranty and misrepresentation claims.

Product liability claims against the manufacturer of Peridox Disinfectant Cleaner survived a motion to dismiss. The claimant alleged that her exposure to Peridox, which contains peracetic acid (PAA), resulted in adverse health consequences. She alleged that exposure to PAA, even at low levels, presented serious health risks that the manufacturer failed to evaluate or disclose. The federal district court in South Carolina found that the presence of PAA by itself in Peridox was sufficient to state a cause of action in that it may constitute a defect that caused the product to be unreasonably dangerous. Accordingly, the court denied the manufacturer’s motion to dismiss the product liability claims (West v. Contec, Inc., No. 7:23-cv-06115-DCC (D.S.C. Sept. 17, 2024)).

Background. This case arose from the adverse health consequences allegedly suffered by the claimant because of exposure to Peridox Sporicidal Disinfectant Cleaner, which contains peracetic acid (PAA), a known asthmagen and respiratory sensitizer. Contec, Inc., which manufactures and markets Peridox, advertises Peridox as a three-minute sporicidal disinfectant cleaner with a 99.9999 percent sporicidal efficacy and claims Peridox is the first viable alternative to bleach based products.

The claimant worked as an oncologist nurse at North Florida in the chemotherapy center in Fleming Island. On or about December 2020, a pharmacist technician in the unit where the claimant worked started using Peridox, and, immediately thereafter, the claimant experienced severe asthma-like symptoms. After the initial exposure, the claimant also experienced respiratory problems, consistent coughing, and difficulty breathing when she was exposed to Peridox. In March 2021, after another exposure to Peridox, the claimant experienced adverse health consequences that resulted in her admittance to the emergency room for breathing treatments. A few days later, she again was admitted to the emergency room and diagnosed with respiratory distress, exacerbated asthma, vocal cord dysfunction, vocal muscular tension dysphonia, and severe reactive airway disease. Other employees at the facility where the claimant worked also complained of the smell associated with Peridox and symptoms incurred from exposure to the product.

The claimant is currently considered permanently disabled and is no longer able to work in a hospital setting. Prior to her initial exposure to Peridox, she was relatively healthy and only experienced mild asthma symptoms. On November 29, 2023, the claimant filed suit, asserting causes of action for strict liability for design defect, manufacturing defect, and failure to warn. She also asserted claims for breach of express and implied warranty and intentional and negligent misrepresentation. The manufacturer moved to dismiss for failure to state a claim.

Since the claimant’s injury occurred in Florida, the court applied the substantive law of Florida in deciding the motion.

Strict product liability claims. The claimant asserted three claims for strict liability based on design defect, manufacturing defect, and failure to warn. The manufacturer contended that the claimant failed to allege sufficient facts to state a plausible claim that Peridox was “defective and unreasonably dangerous.” Specifically, the manufacturer argued that the complaint contained several potential harmful consequences from exposure to Peridox and none of the potential harmful consequences differed from potential harmful consequences of exposure to any number of cleaning products. In addition, the manufacturer asserted that Peridox could not be made entirely safe for all uses and that the claimant’s mere allegations she suffered harm from exposure to Peridox were insufficient to a state a plausible claim that the product was defective or unreasonably dangerous. The manufacturer further contended that the claimant failed to allege facts linking her injuries to a defect in Peridox and failed to allege a specific defect in the product as required by Florida law and only pointed to PAA. According to the manufacturer, the fact that PAA alone may be harmful does not automatically translate to the notion that Peridox is also defective and unreasonably dangerous.

In response, the claimant contended that she adequately alleged facts to support a products liability claim because, under Florida law, product liability plaintiffs are not required to set forth in the complaint the precise chemical, biological, or other process by which the defective product causes the alleged harm. She argued instead that she was required only to put the manufacturer on notice of the harm allegedly suffered because of the design defect. She relied, in part, on the alleged injuries listed in the complaint. Moreover, she asserted that she “identified a link between her injuries and the defective chemical product” and the existence of a product defect and the proximate cause of the defect on her.

To state a claim in Florida for strict products liability based on a design or manufacturing defect, a plaintiff must plead three elements: (1) a relationship between the defendant and the product; (2) a defect which caused the product to be unreasonably dangerous; and (3) causation between the defect and the harm suffered by the user. The court held that the claimant sufficiently alleged a claim for strict products liability.

As to the first element, the claimant alleged that Contec manufactures and markets Peridox Sporicidal Disinfectant Cleaner, an EPA-registered sporicide.

With respect to the second element, the claimant alleged that Peridox contains PAA. While the manufacturer argued that the presence of PAA alone was insufficient to allege Peridox was defective or unreasonably dangerous, the claimant alleged that exposure to PAA, even at low levels, presents serious health risks that the manufacturer failed to evaluate or disclose. Thus, taking the claimant’s allegations as true, the presence of PAA by itself in Peridox was sufficient to state a cause of action in that it may constitute a defect that caused the product to be unreasonably dangerous.

As to the third element of causation, the claimant alleged that, after being exposed to Peridox, “she began to experience negative health consequences from the chemical.” Taking her allegations as true, the court found that the claimant sufficiently alleged all the elements of strict products liability under Florida law.

Accordingly, the court denied the manufacturer’s motion to dismiss the products liability claim.

Breach of warranty claims. The claimant also asserted claims for breach of express and implied warranties. The court found that the claimant failed to allege that she provided pre-suit notice to the manufacturer. Accordingly, the breach of express warranty claim was dismissed without prejudice. Under Florida law, the claimant could not state a claim for breach of an implied warranty unless she established that she was either in privity with the manufacturer or was an anticipated third-party beneficiary. Since she could not establish either, the breach of implied warranty claim was also dismissed without prejudice.

Misrepresentation claims. The court also found that the claimant failed to state a claim for either intentional misrepresentation or negligent misrepresentation because she failed to sufficiently allege that she acted in reliance or justifiable reliance on the manufacturer’s misrepresentations. Her misrepresentation claims were therefore dismissed without prejudice.

The case is No. 7:23-cv-06115-DCC.

Judge: Coggins, D.

Attorneys: Michele M. Vercoski (McCune Wright Arevalo LLP) for Dana West. E. Raymond Moore, III (Murphy and Grantland. P.A.) for Contec, Inc.

Companies: Contec, Inc.

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