Again in 1997, a Chicago Tribune columnist wrote a hypothetical graduation speech that garnered a variety of consideration. Like most graduation speeches, it supplied uplifting recommendation to the intense 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) grew to become A Factor. Baz Luhrmann that very same yr put out a tune known as “Everyone’s Free to Put on Sunscreen.”
Plainly many plaintiff attorneys at this time 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 mentioned she utilized an astonishing quantity of sunscreen — a number of instances per day, although rather less if it was raining — claimed that benzene-tainted sunscreen prompted her to endure from acute lymphoblastic leukemia, “a illness that’s not often seen in adults with out benzene publicity.” All plenty of the sunscreen product (one of many dearer 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 didn’t 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 didn’t 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 could have.That is yet one more declare primarily based on the Valisure lab’s product testing outcomes. Valisure reported that it discovered benzene in sure batches of sunscreen.
Valisure didn’t take a look at the actual tube of sunscreen truly utilized by the named plaintiff. Somewhat, Valisure examined 14 batches of sunscreen and located extreme benzene in 10 of them. A type of batches was referenced within the criticism, but it surely 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 end result 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 “important variability from batch to batch, even inside a single model.”
Provided 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 actual fact of a product recall, by itself, doesn’t set up a product defect. Recollects 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 comparable allegations. However these circumstances contained no reasoning to justify a departure from nearly all 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 apply in far too many jurisdictions the place courts cope with righteous motions to dismiss through what quantities to postcard denials. There is no such thing as a reasoning. There’s not even a pretense of justification. Now perhaps that, er, reticence may be justified by overwhelming caseloads. Or perhaps it’s sheer lassitude. Or concern of reversal. Or reflexive pro-plaintiff-ness. There are some plaintiff attorneys 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 cause for these substance-less abstract denials, they’re pernicious. Cass Sunstein, probably the most cited legislation professor in America (and our Con Legislation 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, “cause giving within the public area.” Not giving causes is a step towards authoritarianism. One would suppose 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 superb a degree in it, this apply stinks.
We’re hardly unbiased on this level. Abstract denials are a disappointment to defendants. They wreak havoc in a specific case and provide no steering to assist future conduct. However at the very least, following the Cascio precedent, abstract denials ought to rely for nothing in different circumstances going ahead. If there aren’t any causes, there ought to be no precedential pressure.
However again to the matter at hand. The end in Cascio is sound, it does have ample precedential pressure, and we’re all the time blissful 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.
