Products Liability Law Daily Wrap Up, PLEADINGS—HOUSEHOLD PRODUCTS—E.D. Pa.: Cognizable injury pleaded but without sufficient particularity for standing, (Dec 11, 2024)

By Jeffrey H. Brochin, J.D.

Representative testing of shampoo products showed benzene contamination, but Complaint failed to establish nexus between that testing and the products that the consumer purchased.

A federal district court in Pennsylvania has granted the Motion to Dismiss filed by Lake Consumer Products, Inc. in a putative class action lawsuit brought by a consumer who claimed that the Lake’s shampoo was contaminated with high levels of benzene. Although the consumer sufficiently established a cognizable injury-in-fact in terms of not receiving the benefit of the bargain, she failed to establish her injury with the requisite particularity required for Article III standing. The representative testing relied upon only showed that certain of Lake’s shampoo products contained benzene, but no nexus was made to the products she actually purchased (Pineda v. Lake Consumer Products, Inc., No. 5:24-cv-01074-JMG (E.D. Pa. Dec. 5, 2024)).

Benzene in Coal Tar shampoo. Lake Consumer Products, Inc. manufactures Coal Tar Shampoo Products including MG217 Psoriasis Extra Strength, MG217 Psoriasis Medicated Conditioning 3% Coal Tar Shampoo, and MG217 Dandruff Therapeutic Shampoo. The consumer alleged that she purchased “at least one or more” of those products, and specifically she alleged that she purchased MG217 Medicated Conditioning 3% Shampoo in July 2023 and February 2023.

She filed suit alleging that the Coal Tar Shampoo Products contained benzene, and she based this allegation on the fact that test results indicated that benzene was present in the Manufacturer’s Coal Tar Shampoo Products in an amount between 5.64ppm and 10.30ppm. Presently before the court was the Manufacturer’s Motion to Dismiss due to lack of Article III standing.

Benefit of the Bargain and injury. The court noted that to establish Article III standing, three elements must be established: (1) that the consumer suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the manufacturer, and (3) that is likely to be redressed by a favorable judicial decision. In the case of a class action lawsuit, the consumer is required to show that she herself has standing for each claim asserted.

The first prong of the standing inquiry requiring the suffering of an injury in fact refers to “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. The court referenced precedent under which consumers sought compensation for economic losses they allegedly suffered from purchasing products that they claimed were worth less than the uncontaminated products for which they bargained. There, the courts ruled that the consumers had sufficiently alleged that they had suffered an economic injury and had standing to bring their claims under the benefit of the bargain theory: they paid full price for products free of contaminants and dangerous substances, but received products that were defectively manufactured with harmful levels of benzene causing them to be adulterated and therefore worthless. Here, the consumer also alleged that Lake’s shampoo products contained a harmful contaminant and that this rendered the product worth less than she had paid for it. Accordingly, the court found that she sufficiently alleged that the presence of benzene in the shampoo product rendered the shampoo unfit for use and worth less than what she had bargained for, and she therefore alleged an injury under the Benefit of the Bargain theory.

Particularity lacking. The court next turned to the issue of whether the consumer’s injury was particularized enough to survive the Motion to Dismiss. While she established that she suffered a cognizable injury, she failed to allege that injury with sufficient particularity. She needed to plausibly allege that her product was defectively manufactured—or that it contained benzene. The totality of her allegations as to “particularity” was that the Coal Tar Shampoo Products did in fact contain benzene. Testing, for instance, reveals that the Coal Tar Shampoo Products contain benzene between 5.64ppm and 10.30 ppm. However, that term—“Coal Tar Shampoo Products”—was defined by the consumer as including several of the products under the brand MG217.

Furthermore, her allegation of particularity was based on the theory of representative testing. Under that theory, she did not need to assert with specificity the extent of the contamination across all products, so long as she provided sufficient details to plausibly allege that her products were contaminated, and this, the court found she failed to do. Although representative testing was relied upon to establish particularity on other cases, those disputes involved product testing of the same lot numbers as the product actually purchased by the complaining consumers, and was determined to be widespread. Accordingly, there was a plausible nexus between the products tested and the products purchased.

An incredibly vague complaint. By contrast, here the court found that the consumer’s complaint failed to overcome the low hurdles in place to establish particularity based on the theory of representative testing: she only alleged with specificity that she purchased one of these items—the MG217 Psoriasis Medicated Conditioning 3% Coal Tar Shampoo—but her complaint was otherwise incredibly vague as to the details surrounding the testing. She did not specify whether each, a combination of, just one, or some of the three of Lake’s products was included in the alleged test result. Similarly, she did not allege when the tested products were acquired and whether the date of purchase could give rise to a reasonable inference that her purchased products were similarly contaminated. Other indicia like lot numbers were not mentioned in her complaint, and nothing in the complaint indicated that the contamination was so widespread that the court can make a reasonable inference that she purchased contaminated products.

In sum, the testing of the products was so unspecified that it “stopped short of the line between possibility and plausibility.”

Based on the forgoing, the court concluded that there was no Article III standing due to lack of injury-in-fact being alleged with particularity, and they accordingly granted the Motion to Dismiss.

The case is No. 5:24-cv-01074-JMG.

Judge: Gallagher, J.

Attorneys: Conlee Schell Whiteley (Kanner & Whiteley, LLC) for Lorisa Pineda. Eric C. Milby (Lundy Beldecos & Milby PC) for Lake Consumer Products, Inc.

Companies: Lake Consumer Products, Inc.

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