If a tree falls in the forest but no one is around to hear it, did it make a sound? Philosophers disagree. If a product contains a contaminant but no one gets sick, did it cause an injury? Judges disagree.
In the 2000s, enterprising plaintiffs’ attorneys attempted to push the boundaries of existing tort law by arguing that plaintiffs are entitled to damages for defects even when they cause no physical injury. These so-called “no-injury” theories of liability were largely rejected by courts. E.g., Rivera v. Wyeth-Ayerst Lab’ys, 283 F.3d 315, 320–21 (5th Cir. 2002) (dismissing “no-injury products liability law suit”); Johnson v. Bankers Life & Cas. Co., 2014 WL 4494284, at *7 (W.D. Wis. Sept. 12, 2014) (recognizing that in the “consumer product context, courts routinely find lack of standing where—while a product may have been defective in the hands of others—the individual plaintiffs did not suffer the defect and, therefore, suffered no injury”).
While these cases closed the door on “no-injury” product liability claims, they left open the possibility of other “no-injury” claims, such as claims that a manufacturing defect breached a warranty or constituted fraud. E.g., Cole v. Gen. Motors Corp., 484 F.3d 717, 723 (5th Cir. 2007) (“Notably in this case, plaintiffs may bring claims under a contract theory based on the express and implied warranties they allege.”).
Whether and when “no-injury” claims are viable is a hotly debated question. As more fully discussed below, courts disagree on whether a plaintiff who has purchased a contaminated or defective product—but who has successfully used the product for its intended purpose while suffering no physical injury—can maintain a claim.
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Some of the most developed law in this area is in the Third Circuit, which has taken a relatively strict approach to economic standing. In re Johnson & Johnson Talcum Powder Prod. Mktg., Sales Pracs. & Liab. Litig., 903 F.3d 278 (3d Cir. 2018) is instructive. At issue in that case was whether a plaintiff who had purchased and used baby powder for years without issue had standing to sue for economic damages, on account of the baby powder containing a carcinogen. Id. at 289–90. The plaintiff explicitly disclaimed any physical injury, so the sole question was whether the presence of the carcinogen had somehow economically injured the plaintiff. Id. The Johnson & Johnson court rejected that theory. Id. It held that because the plaintiff had used the product for years without issue, she received the benefit of the bargain. Id.
Following Johnson & Johnson, courts in the Third Circuit have dismissed claims for lack of economic injury where the plaintiff used the product as intended and without issue. E.g., In re Plum Baby Food Litigation, 2022 WL 16552786, at *7–8 (D.N.J. Oct. 31, 2022); Kimca v. Sprout Foods, Inc., 2022 WL 1213488, at *9 (D.N.J. Apr. 25, 2022).
For example, in In re Plum Baby Food Litigation—which we recently covered—the court dismissed claims that plaintiffs were economically injured by purchasing baby food allegedly contaminated with heavy metals. 2022 WL 16552786, at *1, *9. The court followed Johnson & Johnson in holding that because the plaintiffs had used the product for its intended purpose without issue, they were not deprived of the benefit of their bargain—and the product also could not be deemed “worthless,” as plaintiffs suggested. Id. at *7–8. The court also rejected claims that the plaintiffs had paid a “price premium” for the product, given that they had not shown that the defendant unlawfully advertised the product as superior to others or that it was more expensive than other particular comparison products. Id. at *8–9.
The Kimca decision, which we also previously covered, reached a similar conclusion. Plaintiffs in that case alleged that they had been injured by purchasing baby food contaminated with “unsafe levels of heavy metals.” 2022 WL 1213488, at *1. The court held that to establish economic injury under a “benefit of the bargain” theory, the plaintiffs must show that the level of contamination in the product put them at risk of future harm. Id. at *9. The Kimca plaintiffs failed to do that, as they had not shown that the levels of heavy metals present in the products they purchased, in particular, were unsafe. Id. at *8. For that reason, their claims were dismissed. Id. at *9.
Courts in the Fourth, Eighth, and D.C. Circuits have issued decisions aligned with the Third Circuit’s approach.
The Eighth Circuit has indicated it is aligned with the Third Circuit. For example, it dismissed claims brought by plaintiffs alleging economic damages due to the presence of a defect in the engine of an off-road vehicle that could cause the vehicle to potentially catch on fire. In re Polaris Mktg., Sales Pracs., & Prod. Liab. Litig., 9 F.4th 793, 794 (8th Cir. 2021). According to the Eighth Circuit, plaintiffs lacked standing because they did not allege that their vehicles “exhibited any damage or degradation,” that their vehicles required “replacement parts or additional servicing,” or that their “vehicles failed to perform as intended.” Id. at 797. The Eighth Circuit has likewise held that plaintiffs were not economically injured by potentially defective oil filters or drop-side cribs that did not manifest defects. Penrod v. K&N Eng’g, Inc., 14 F.4th 671, 675 (8th Cir. 2021). As noted by one district court dismissing claims that plaintiff was economically harmed by purchasing a hair coloring product with allegedly undisclosed risks, because the plaintiff “purchased [the] product, used it as intended, and received the desired result,” he was not economically injured. Povich v. Combe Inc., 2017 WL 1058850, at *2 (E.D. Mo. Mar. 21, 2017).
There is limited case law in this area of the law in the Fourth Circuit, but a recent district court decision followed the Third Circuit in rejecting standing based on the alleged presence of heavy metals in baby food. In re: Gerber Products Company Heavy Metals Baby Food Litig., 2022 WL 10197651, at *10 (E.D. Va. Oct. 17, 2022). That decision considered two potential theories of standing: the benefit of the bargain theory and the price premium theory. With respect to the benefit of the bargain theory, it followed decisions in the Third Circuit, including Johnson & Johnson, in holding that where a consumer uses a consumable product for its intended purpose without issue, the consumer has received the benefit of the bargain. Id. at *8. On the price premium theory, the court held that plaintiffs failed to show how the presence of heavy metals made the baby foods worth less than other products, and followed the Kimca case discussed above. Id. at *10.
By contrast, courts in the First, Second, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits have issued decisions that are less aligned with the Third Circuit.
Just last week, the First Circuit held that purchasers of a car booster seat for children that was allegedly unsafe in certain situations—but that did not cause any physical injury to plaintiffs—were able to establish economic standing on the theories that alleged misrepresentations by the manufacture caused them to (i) overpay for the booster seats and (ii) purchase the seat when they may have otherwise purchased a different seat. In re Evenflo Co., Inc., Mktg., Sales Pracs. & Prod. Liab. Litig., 2022 WL 17174950, at *7 (1st Cir. Nov. 23, 2022). In distinguishing a decision in the Eighth Circuit, the court noted that this case “sounds in misrepresentation rather than products liability.” Id. at *6. It is unclear whether the theory of standing upheld in In re Evenflo Co. carries over to other contexts, such as cases involving product contamination. For example, at least one court in the First Circuit has previously held that the mere presence of lead in fruit juice is not sufficient to create an economic injury. In re Fruit Juice Prod. Mktg. & Sales Pracs. Litig., 831 F. Supp. 2d 507, 513 (D. Mass. 2011).
Courts in the Second Circuit have held that contamination of a drug product with a potential carcinogen is sufficient to allege Article III standing on the theory that plaintiffs “paid more for the medication than it was worth.” Harris v. Pfizer Inc., 586 F. Supp. 3d 231, 239 (S.D.N.Y. 2022). An unpublished Second Circuit decision likewise held that the presence of the contaminant glyphosate in oranges was sufficient to allege standing on the theory that the products were falsely marketed as “natural,” resulting in economic injury on the theory that “the price of the product was inflated as a result of defendant’s deception.” Axon v. Florida’s Nat. Growers, Inc., 813 F. App’x 701, 704 (2d Cir. 2020) (internal marks omitted).
The Fifth Circuit held in Rivera v. Wyeth-Ayerst Lab’ys, 283 F.3d 315, 316–17 (5th Cir. 2002) that plaintiffs were not economically injured by purchasing a painkiller that carried certain undisclosed risks of liver damage—but that caused no physical injury to plaintiffs. As noted by the court, each plaintiff “paid for an effective pain killer, and she received just that—the benefit of her bargain.” Id. at 320. But the Rivera decision was distinguished by another Fifth Circuit decision issued two years later, Cole v. Gen. Motors Corp., 484 F.3d 717, 722 (5th Cir. 2007). In Cole, at issue were cars manufactured with potentially defective air bags. Id. Plaintiffs alleged that the cars were worth less than they bargained for—given that they bargained for a car without defects and received a car with potential defects. Id. at 723. The court agreed and distinguished Rivera on the grounds that the Rivera plaintiffs had not asserted “economic harm emanating from anything other than potential physical harm,” while the Cole plaintiffs alleged “that each plaintiff suffered economic injury at the moment she purchased a [car] because each [car] was defective.” Id.
More recently, a district court worked through the reasoning in Rivera and Cole to reject one theory of standing under Rivera, but sustain another theory under Cole in the context of consumer plane tickets. Earl v. Boeing Co., 2020 WL 759385 (E.D. Tex. Feb. 14, 2020). In Earl, plaintiffs claimed they were economically injured by purchasing tickets for flights on Boeing 737 MAX 8 jets that had the risk of crashing—but did not crash or cause any physical injury to the plaintiffs in the suit. Id. at *6. Citing Rivera, the court rejected plaintiffs’ theory that they have asserted Article III injury merely by alleging that they would not have purchased tickets had they known the danger: “Pointing to the tragic fatalities of other passengers at the hands of a potentially defective airplane is not a basis that Plaintiffs can use to show that they were injured because they paid money for a ticket.” Id. But as to plaintiffs’ theory that they were overcharged by purchasing a ticket to a plane that was allegedly falsely marketed as safe, the court sustained that theory of standing, relying on Cole. Id. at *8. Notably, the court distinguished Johnson & Johnson on the grounds that the Earl plaintiffs alleged the defendants concealed a “defect in order to inflate ticket prices.” Id. at *8 n.8.
The Sixth Circuit has suggested that plaintiffs who purchase a defective product have been economically injured by paying a price premium, even if the defect does not manifest for some plaintiffs: “Because all Duet [washing machine] owners were injured at the point of sale upon paying a premium price for the Duets as designed, even those owners who have not experienced a mold problem are properly included within the certified class.” In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 722 F.3d 838, 857 (6th Cir. 2013); see also In re FCA US LLC Monostable Elec. Gearshift Litig., 2017 WL 1382297, at *5 (E.D. Mich. Apr. 18, 2017) (“When a manufacturer sells a product that is defective, which causes consumers to be misled at the point of sale into paying more and getting less than they believed they were purchasing, the consumers suffer an injury in fact, even if that defect does not manifest itself in every individual unit.”). Courts in the Sixth Circuit have also upheld standing in consumable products cases, in particular, such as where plaintiff alleges being economically harmed by purchasing dog food containing “excessively high levels of toxic heavy metals.” Ficarelli v. Champion Petfoods USA, Inc., 2018 WL 6832075, at *5 (M.D. Tenn. Dec. 28, 2018).
In the Seventh Circuit, there is case law suggesting that the presence of a contaminant in a product is sufficient to support economic injury under a benefit of a bargain theory. The leading circuit-level authority on this is In re Aqua Dots Prod. Liab. Litig., 654 F.3d 748, 750 (7th Cir. 2011). In that case, the court held that a harmful substance present in a children’s toy caused economic injury to plaintiffs who suffered no physical injury, on the theory that plaintiffs “paid more for the toys than they would have, had they known of the risks the [inedible] beads [in the toy] posed to children.” Id. at 751. The Aqua Dots ruling has been applied to deny motions to dismiss on standing grounds in the context of consumable goods as well, such as allegations that a weight loss product contained a toxic substance. Lipton v. Chattem, Inc., 2012 WL 1192083, at *4 (N.D. Ill. Apr. 10, 2012) (rejecting attempt to distinguish Aqua Dots as not applying to a “consumable good”). More recently, Aqua Dots has been applied to sustain standing in a case where plaintiffs alleged that they purchased antiperspirants containing benzene (where they alleged they would not have done so had they known about that contamination). Barnes v. Unilever United States Inc., 2022 WL 2915629, at *1 (N.D. Ill. July 24, 2022).
Although these decisions may pose difficulties for dismissing cases on standing grounds at the pleading stage, the Seventh Circuit did recently dismiss a case on standing grounds later in the case. Flynn v. FCA US LLC, 39 F.4th 946, 952 (7th Cir. 2022). In Flynn, plaintiffs alleged that a defect made their cars unsafe, and that “consumers would pay less for an ‘unsafe’ car than they would a ‘safe’ car.” Id. at 952 n.1. Because plaintiffs failed to support those claims with sufficient evidence in response to a motion to dismiss for lack of standing filed at the close of discovery, the court dismissed those claims. Id. at 952.
The Ninth Circuit has followed Johnson & Johnson to hold that the presence of allegedly unhealthy hydrogenated oil in popcorn did not deprive the plaintiff of the benefit of the bargain. McGee v. S-L Snacks Nat’l, 982 F.3d 700, 706 (9th Cir. 2020). But in that same decision, the court left open the possibility that a plaintiff could establish standing by alleging either (i) a “hidden defect” or (ii) that the product “was worth objectively less than what she paid for it.” Id. at 707–08. Following McGee, one district court in the Ninth Circuit held that economic injury existed based on contamination of a prenatal vitamin with heavy metals—even though that contamination caused no physical injury. Barnes v. Nat. Organics, Inc., 2022 WL 4283779, at *4 (C.D. Cal. Sept. 13, 2022); see also In re Plum Baby Food Litigation, 2022 WL 16640802, at *1 (N.D. Cal. Jan. 12, 2022) (holding that plaintiffs adequately alleged an injury in fact by claiming they would not have paid the purchase price for baby food had they known the products contained heavy metals).
The Tenth Circuit has limited circuit-level case law in this area, but district courts there have taken a generally broader view of standing than in the Third Circuit. For example, in Gonzalez v. Pepsico, Inc., 489 F. Supp. 2d 1233 (D. Kan. 2007), the court held that contamination of soda with benzene, coupled with an allegation that the presence of benzene reduced the value of the products, was sufficient to establish standing. Id. at 1240 (“[T]he complaint alleges that plaintiffs suffered economic damages resulting from the difference between the purchase price of the beverage products as warranted and their actual value considering the potential presence of benzene in those products.”). Relying on the Fifth Circuit Cole case discussed above, another court held that a plaintiff had established economic injury by alleging a defect in a children’s car seat, even though plaintiff “has not alleged that she or anyone else suffered any physical injury while using the TurboBooster or that the TurboBooster ever malfunctioned.” Ezell v. Graco Children’s Prod. Inc., 2013 WL 12091071, at *1 (W.D. Okla. Mar. 8, 2013).
The Eleventh Circuit has held that plaintiffs were economically injured by purchasing a dietary supplement that included a banned substance, on the theory that the product was “illegal to sell” and thus “worthless.” Debernardis v. IQ Formulations, LLC, 942 F.3d 1076, 1086–88 (11th Cir. 2019). That decision cautioned, however, that it is “limited to the specific facts alleged in this case—that the plaintiffs purchased dietary supplements that Congress, through the FDCA and the DSHEA, had banned from sale with the purpose of preventing consumers from ingesting an unsafe product.” Id. at 1088. And at least one later Eleventh Circuit decision suggests that Debernardis was, indeed, limited to its facts. Doss v. Gen. Mills, Inc., 816 F. App’x 312, 314 (11th Cir. 2020). There, the Eleventh Circuit dismissed claims alleging that plaintiffs were economically injured by purchasing Cheerios contaminated with the chemical glyphosate. Id. Distinguishing Debernardis, the court held that because plaintiff “has not alleged that glyphosate is wholly unsafe to consume, rendering the Cheerios she purchased valueless,” that the product was not “worthless.” Id.
But some district courts have extended Debernardis beyond its original context. See In re Zantac (Ranitidine) Prod. Liab. Litig., 546 F. Supp. 3d 1152, 1185–86, 1190 (S.D. Fla. 2021). In In re Zantac, the court relied on Debernardis to permit claims to proceed on the allegation that plaintiffs purchased a drug contaminated with a toxic substance—even though the drug worked as intended and caused no physical injury. Id. The court did note, however, that with “a more fully developed factual record, the Court will be better positioned to discern whether this case leans toward or away from Debernardis, and if the latter, whether the rationale for finding standing in Debernardis nevertheless supports standing in this case.” Id. at 1190.
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So what can defendants do? First, where possible, defendants should look to steer cases where these arguments might be raised to Third, Fourth, Eighth, or D.C. Circuits. Even in cases filed outside those circuits, it may be worth looking to decisions in the Third Circuit for persuasive authority, given the fulsome development of circuit-level case law there. Indeed, in addition to the Johnson & Johnson case described above, two other relatively recent Third Circuit decisions detail what is (and what is not) sufficient to plead economic standing. Thorne v. Pep Boys Manny Moe & Jack Inc., 980 F.3d 879, 886 (3d Cir. 2020) (economic injury not sufficiently pled for allegations that tire manufacturer failed to register tires prior to sale to consumer, in technical violation of federal law); Cottrell v. Alcon Lab’ys, 874 F.3d 154, 160–61 (3d Cir. 2017) (economic injury sufficiently pled where plaintiffs alleged the design of the product container caused them to “waste” portions of the product, where plaintiffs “quantified their individual economic injuries in charts”).
In addition, in cases concerning consumable products, case law from the Third Circuit may be particularly persuasive in any circuit. Other than Debernardis, all of the reported, circuit-level decisions holding that the plaintiff established standing involved non-consumable products. See In re Evenflo Co., 2022 WL 17174950, at *7 (car booster seat); Axon, 813 F. App’x at 704 (not reported); Cole, 484 F.3d at 722 (car); In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 722 F.3d at 857 (washing machine); In re Aqua Dots Prod. Liab. Litig., 654 F.3d at 749 (children’s toy); McGee, 982 F.3d at 710 (no standing). And as noted above, Debernardis is distinguishable because it was expressly limited to its facts. 942 F.3d at 1088. As recognized by courts in the Third Circuit, where a consumer has already used a consumable product without issue, it is difficult to conceptualize how the plaintiff was harmed—the plaintiff bought the product for a particular purpose, used it for that purpose, and got the benefit of their bargain. See, e.g., Johnson & Johnson, 903 F.3d at 289; In re Plum Baby Food Litigation, 2022 WL 16552786, at *7–8; Kimca v. Sprout Foods, Inc., 2022 WL 1213488, at *9.