BROOKLYN, N.Y. (Legal Newsline) - The maker of Nantucket Nectars has defeated a class action over alleged chemicals in its bottles, as a federal judge has found claims of contamination far too vague.
New York judge Margo Brodie will give Timothy Walker a chance to file an amended complaint to address her criticisms in a July 16 ruling that granted the motion to dismiss of Keurig Dr Pepper.
The case, filed by lawyers from The Sultzer Law Group and Millberg Coleman Bryson Phillips, is one of many consumer class actions that claim the presence of chemicals known as PFAS in products.
Plaintiffs have experienced varying levels of success at the motion-to-dismiss stage of litigation. Last month, a federal judge threw out claims over Simply Tropical juice drinks.
The lawsuits do not allege injury from PFAS, chemicals also found in firefighting foam that have drawn the interest of state and federal regulators. Instead, the lawsuits say plaintiffs wouldn't have bought or spent as much on products had they known they contained PFAS.
Plaintiffs rely on independent testing on small sample sizes to show PFAS must be present in products nationwide. Walker's lawyers allege PFAS in nine different samples of Nantucket Nectars.
"Plaintiff does not allege when the products were tested or when he purchased the products such that it can support an inference that he purchased a contaminated product," Judge Brodie wrote.
"He states only that he purchased and consumed the products 'during the applicable statute of limitations period' and 'during the class period,' neither of which he defines with a specific time frame. He similarly does not specify when the independent testing of the products was performed."
PFAS are dubbed "forever chemicals" because they persist in groundwater and human tissue for years. The federal government has set a maximum contaminant level for PFAS, even as groups call the move premature. Much of the research regarding their effect on the human body is disputed.
The EPA's own Science Advisory Board has been critical about the research used to establish its new rules. That group wrote "the limitations of the current database on associations of human PFAS exposures... indicate that more evidence is required to select immunomodulation as a critical endpoint for human PFAS risk assessment."
Litigation has sprung up in recent years, including private lawyers aligning themselves with government officials to represent them on contingency fees. Many of the cases are in a multidistrict litigation proceeding in South Carolina federal court, while consumer class actions are also being filed around the country.
DuPont is paying $1.185 to settle claims in the South Carolina MDL, while 3M is set to pay at least $10.5 billion. Lawyers will make around $1 billion in fees from those two settlements.
For Walker in the Nantucket Nectars case, he will need to better allege he suffered an injury by connecting the bottle he drank to those tested. His complaint did not allege what he bought was tested.
"Without additional information about the testing performed or the actual products purchased by Plaintiff, the Court cannot conclude that it is plausible that Plaintiff purchased a contaminated product," Brodie wrote.