TRENTON, N.J. (Legal Newsline) – A New Jersey federal judge has rejected the class action claims made in a lawsuit over benzene in Lotrimin and Tinactin foot products.
Judge Susan Wigenton on Aug. 19 granted Bayer’s motion to dismiss the lawsuit brought in November by lawyers at Bursor & Fisher. The suit followed a voluntary recall of the antifungal medications and alleged customers were ripped off because they would not have purchased them had they known about the presence of benzene.
Wigenton ruled the plaintiffs couldn’t establish standing to sue for economic harm and physical injury.
“(H)ere, Plaintiffs do not plead that the Product was wasted or unused in some way, or that they discarded some or all of the Product when they found out about the recall,” the decision says.
“Plaintiffs also do not plead that the product did not work as advertised. Plaintiffs put forth conclusory assertions that the product is worthless due to the purported benzene contamination but do not set out any facts that demonstrate any actual loss from discarding or sacrificing any portions of the products.”
Benzene has been listed by the FDA as a "Class 1 solvent" that should not be manufactured in drug substances, excipients or products due to its unacceptable toxicity as any exposure greater than zero over a long period of time is not safe, the suit said.
Plaintiffs lawyers attempted to claim their clients “suffered cellular and genetic injury” that will increase the chance they develop cancer but lacked details, Wigenton wrote.
“(Plaintiffs) do not give any basis for the allegation, do not show how those injuries occurred, and do not demonstrate that the risk of actual harm is anything other than mere speculation,” she wrote.
Wigenton is giving the plaintiffs attorneys 30 days to amend their complaint.