Case over alcohol device dismissed in district court, plaintiffs allowed to amend

By Mike Helenthal | May 24, 2017

LOS ANGELES (Legal Newsline) – A California federal judge has dismissed a class action lawsuit against the maker of an alcohol monitoring system, though the plaintiffs in the case were allowed to amend and re-enter the complaint.

The suit, filed in February by lawyers representing Roseanne Hansen and Jennifer Oh against Scram of California Inc., which makes a transdermal monitoring device to test a person’s blood alcohol level, claims that Scram’s system does not work.

“The device is inherently susceptible to detecting ‘false-positive’ alcohol readings as a result of ‘environmental alcohol,’” the original complaint stated, “i.e., alcohol vapors encountered on an everyday basis from products including cologne, aftershave, hand sanitizer, household cleaners and gasoline.”

The system is used by defendants in court-mandated rehabilitation services.

Judge Christina Snyder of the U.S. District Court of the Central District of California said the plaintiffs’ claims against Scram did not provide sufficient legal grounds for the case to be heard and gave their attorneys 21 days to file an amended complaint “addressing the deficiencies identified herein.”

Among those deficiencies was a federal rule that allows dismissal if there is a “lack of cognizable legal theory or the absence of sufficient facts alleged under cognizable legal theory.”

The judge, in her April 28 order, said that lawyers for the plaintiffs failed to document how Scram had misrepresented its products.

“Plaintiffs allege that defendants made various misrepresentations regarding the use and effectiveness of the device,” the judge wrote.

“However, plaintiffs do not allege who made such representations, when their presentations were made, or how they were communicated. Plaintiffs assert the defendants’ advertisements include misrepresentations, but do not describe the content of such advertisements or when plaintiffs viewed them.”

Snyder wrote that the plaintiffs have “an obligation to provide the ground of this entitlement relief” and that doing so “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.”

The judge, in granting the opportunity to amend the complaint, said Scram’s lawyers did not meet the criteria of outright dismissal under rules governing California’s “litigation privilege.”

On May 22, the plaintiff filed an amended complaint. Her attorneys also asked for any discussion of class certification to be postponed.

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