In preparation for our OTC panel next week at ACI-NY, we have kept our eyes open for any OTC cases that raise interesting issues. Today’s case, Rooney v. Procter & Gamble Co., 2022 U.S. Dist. LEXIS 210218 (E.D. La. Nov. 21, 2022), involves a claim by the plaintiffs that a woman developed triple negative breast cancer as a result of using an antiperspirant that she asserts contained benzene.

The assertion that benzene was in the antiperspirant rested on testing by Valisure, an analytical pharmacy. Some of you have heard of a Valisure before, as its testing, and results allegedly showing contamination, have been relied upon by plaintiffs in other mass torts. Valisure calls itself “the pharmacy that checks.” Perhaps we are cynical, but we think of a different sort of checks when we see a purported independent outfit that seems to cooperate closely with plaintiff lawyers. Here, Valisure ran tests on batches of the antiperspirant and came up with concentrations of benzene significantly higher than levels recommended by OSHA. Valisure filed a Citizen’s Petition with the FDA seeking a recall of antiperspirant batches containing too much benzene. (Sound familiar?) The FDA had not responded to the Citizen’s Petition. The defendant voluntarily implemented a recall of certain batches of the antiperspirant.

Before the court was the defendant’s motion to dismiss the plaintiffs’ second amended complaint. The plaintiffs alleged that the defendant violated the Louisiana Products Liability Act by selling antiperspirants without issuing adequate warnings. The plaintiffs also alleged that the defendant was liable under theories of negligence, gross negligence, strict liability, and “fault,” and that the defendant violated the FDCA. Some of those claims seem weird (some of what’s missing also seems weird, but it’s not our job to help plaintiffs author complaints – our criticisms are strictly destructive), but remember, we’re in Louisiana. Not that we’re complaining. The people are fun, the food is great, and did we mention that the Judge in this case dismissed the second amended complaint?

Why? In the motion to dismiss, the defendant argued that the plaintiffs failed plausibly to allege (1) causation and (2) breach of a duty to warn. The causation argument rested on an issue frequently arising in OTC cases: did the plaintiff use enough of the product to cause the alleged harm? That question is particularly important where, as here, the alleged contaminant (benzene) is commonly found in a number of sources. The duty argument rested on the defendant’s contention that it had complied with federal regulations regarding warnings.

The Rooney court held that the plaintiffs’ allegations of exposure fell short. The plaintiffs stated “in cursory fashion” that the cans of antiperspirant contained benzene. There were insufficient factual allegations. The plaintiffs said all of the cans tested by Valisure contained benzene, which, if true, might support plausibility that the cans used by the plaintiff contained benzene. But the court read the Valisure Citizen’s Petition NOT to say that all tested cans contained benzene. The plaintiffs attempted to backfill by matching the lot numbers of their cans with lot numbers testing positive in the Valisure testing. But it was too late for that. That allegation was nowhere in the second amended complaint. We suppose it will reside in the third amended complaint, as the court’s dismissal was without prejudice. Grrrrr.

The second amended complaint also failed to plead that the contaminant can cause the type of cancer at issue. The plaintiffs alluded to such a causal connection being “well documented,” but they failed to refer the court to such documentation. The omission was “striking” when compared to the more detailed allegations about studies linking benzene to cancer in general. As it was, all the second amended complaint contained was an “unsupported, conclusory assertion of fact that is insufficient at the pleading stage.” (We have noticed in many recent mass tort cases, including OTC cases, how plaintiff lawyers can be rather, er, ambitious in alleging connections with various cancers. Did we say ”ambitious”? How about sloppy?)

To the extent the plaintiffs attempted to allege FDCA violations, such claims were dismissed for lack of a private right of action. Any other claims also failed due to exclusivity of the Louisiana product liability statute.

If the antiperspirant at issue came in roll-on form, we would not be able to resist a final “Les bon temps rouler.” But it didn’t, so we’ll instead merely say that we hope to see many of you in NYC next week.