TRENTON, N.J. (Legal Newsline) - A proposed class action lawsuit over benzene in Lotrimin and Tinactin fails for many reasons, a New Jersey federal judge has ruled.
Judge Susan Wigenton for a second time granted Bayer's motion to dismiss the case on May 23, nine months after tossing the case for the first time but allowing plaintiff lawyers the chance to file an amended complaint.
Bayer issued recalls for certain of the antifungals after benzene was discovered in spray products with lot numbers beginning with TN, CV or NAA and distributed between September 2018 and September 2021. It offered a refund if users provided a photograph of each product for which they sought money back.
Still, lawyers at Bursor & Fisher sued Bayer, claiming the recall was unsatisfactory and that its clients were exposed to benzene. They alleged "cellular and genetic injury" but failed to plead how with any specificity, Wigenton ruled in August.
In the most recent dismissal order, she reached the same conclusion as the plaintiffs sought money for a medical monitoring plan.
"To demonstrate an injury in fact, a plaintiff must show particularization - 'it must affect the plaintiff in a personal and individual way' and concrete injury - it 'must be de facto;' that is, it must actually exist," Wigenton wrote.
"Products at issue exposed Plaintiffs to levels of benzene exceeding the FDA limit. The (First Amended Complaint), rather, pleads only a future risk of injury - not a concrete, present-day particularized injury."
Because of this, Wigenton found the several named plaintiffs lacked standing to sue.
As for their economic damages claims that stemmed from having to stop using their Tinactin or Lotrimin, Wigenton noted that only one of the plaintiffs claimed to have had to purchase a substitute product - and it wasn't comparable.
Wigenton cited a ruling for Johnson & Johnson in a talcum powder case alleging exposure to asbestos that declined a plaintiff's "wish to be reimbursed for a functional product that she has already consumed without incident."
Wigenton wrote of the complaint against Bayer: "The FAC fails to give factual detail about specifically when the product was purchased and how often used, how the product functioned during use, whether the individual Plaintiff's medical condition was alleviated, how much product remained after use, when and how each Plaintiff learned that there could be potential contamination (and if each learned of such when the product was still in use for a particular infection), and other such concrete and particularized facts that would demonstrate the conclusion that the product needed to be discarded and wasted - and, importantly, why."