Again in 1997, a Chicago Tribune columnist wrote a hypothetical graduation speech that garnered plenty of consideration. Like most graduation speeches, it supplied uplifting recommendation to the brilliant younger minds about to enter the working world. Not like most, it directed the graduates to put on sunscreen. That suggestion (usually wrongly attributed to Kurt Vonnegut) turned A Factor. Baz Luhrmann that very same yr put out a music known as “Everyone’s Free to Put on Sunscreen.”
Plainly many plaintiff legal professionals at the moment harbor a distinct view. There’s a not-so-mini-industry of suing producers for promoting sunscreen allegedly contaminated with benzene. In Cascio v. Johnson & Johnson, et al., 2024 WL 693489 (N.D. Ga. Feb. 20, 2024), the plaintiff, who stated she utilized an astonishing quantity of sunscreen — a number of occasions per day, although rather less if it was raining — claimed that benzene-tainted sunscreen precipitated her to undergo from acute lymphoblastic leukemia, “a illness that’s not often seen in adults with out benzene publicity.” All a lot of the sunscreen product (one of many costlier manufacturers on the pharmacy cabinets) had been recalled “in response to a citizen petition to the FDA by Valisure, LLC.” The criticism included causes of motion for product legal responsibility, negligence, misrepresentation, breach of guarantee, and lack of consortium.
The defendants moved to dismiss the criticism. They argued that the plaintiff did not allege product identification, causation, and misrepresentation. The claims for lack of consortium and punitive damages, being purely by-product, would additionally go away.
And they also did. The Cascio court docket agreed that the plaintiffs did not allege causation and, due to this fact, dismissed all of the claims.
We’re not going to ask you to cease us in case you’ve heard this earlier than, as a result of we all know you might have.That is yet one more declare based mostly on the Valisure lab’s product testing outcomes. Valisure reported that it discovered benzene in sure batches of sunscreen.
Valisure didn’t check the actual tube of sunscreen really utilized by the named plaintiff. Moderately, Valisure examined 14 batches of sunscreen and located extreme benzene in 10 of them. A kind of batches was referenced within the criticism, nevertheless it doesn’t look like a batch related to the actual sunscreen utilized by the plaintiff. It was straightforward sufficient for the court docket to low cost the optimistic outcomes from merchandise the plaintiff didn’t use. Thus, the query is whether or not the one optimistic outcome within the batch referenced by the plaintiff legitimately helps an inference that the sunscreen utilized by the plaintiff contained benzene. The court docket held that such an inference was not sufficiently supported, as a result of Valisure admitted that there was “vital variability from batch to batch, even inside a single model.”
On condition that Valisure’s restricted batch testing couldn’t set up causation, the plaintiff was left to argue that the mere reality of a product recall ought to set up a defect within the sunscreen utilized by the plaintiff. The Cascio court docket rejected that argument as a result of the very fact of a product recall, by itself, doesn’t set up a product defect. Remembers may be over inclusive. (The Cascio court docket cites a few good circumstances supporting this level). Furthermore, the recall utilized to solely sure batches, and there was no allegation that the plaintiff’s sunscreen got here from any of these batches. (Once more, the Cascio court docket collected a number of good circumstances on this level, together with different favorable Valisure-based selections.)
The plaintiff cited three circumstances that appeared to go the opposite means, insofar as they denied motions to dismiss related allegations. However these circumstances contained no reasoning to justify a departure from the vast majority of circumstances supporting dismissal — the circumstances that framed what we and the Cascio court docket deem the higher rule.
That final level gladdens our flinty protection hearts. We observe in far too many jurisdictions the place courts take care of righteous motions to dismiss by way of what quantities to postcard denials. There isn’t a reasoning. There’s not even a pretense of justification. Now possibly that, er, reticence may be justified by overwhelming caseloads. Or possibly it’s sheer lassitude. Or concern of reversal. Or reflexive pro-plaintiff-ness. There are some plaintiff legal professionals who argue with a straight face that motions to dismiss violate the constitutional proper to a jury trial, and there are some courts foolish sufficient to agree. Regardless of the purpose for these substance-less abstract denials, they’re pernicious. Cass Sunstein, probably the most cited legislation professor in America (and our Con Regulation instructor means again when) has a draft article on-line about what it means to be a classical liberal. He’s speaking about “liberal” as in John Stuart Mill, not, say, AOC. A part of being a liberal on this sense means respecting the rule of legislation. Extra particularly, it means, amongst many different issues, “purpose giving within the public area.” Not giving causes is a step towards authoritarianism. One would assume that the sine qua non of judging is making selections and supplying causes for such selections. Some judges do neither. Some grudgingly do the primary, however not the second. To not put too wonderful some extent in it, this observe stinks.
We’re hardly unbiased on this level. Abstract denials are a disappointment to defendants. They wreak havoc in a selected case and supply no steerage to help future conduct. However at the very least, following the Cascio precedent, abstract denials ought to depend for nothing in different circumstances going ahead. If there aren’t any causes, there ought to be no precedential power.
However again to the matter at hand. The lead to Cascio is sound, it does have ample precedential power, and we’re all the time joyful to see Valisure testing get exactly the respect it deserves – darned little. We provide a tip of our cyber cap to prevailing protection counsel, Robyn Maguire and Nadine Kohane at Barnes & Thornburg.
