[author: Harmon Cooper]
In Nelson v. Matrixx Initiatives, Inc., No. C 09-02904 (N.D. Cal. May 18, 2012), a federal judge made a plaintiff go back to the drawing board in his attempt to hold the makers of cold medication liable for allegedly eliminating his sense of smell and taste with their products. The case is yet another example that in a post-Bell Atl. Corp. v. Twombly world, federal courts are requiring plaintiffs to plead factual allegations with greater detail.
In Nelson, the plaintiff was Michael Nelson, a California attorney, and the defendants were Matrixx Initiatives, Inc. and Zicam, LLC. Matrixx and Zicam manufactured and marketed over-the-counter medication, including Cold Remedy Gel Swabs and Cold Remedy Nasal Gel Spray; the plaintiff used these products in 2006 and 2008, respectively. But upon use of the products, in particular the spray, Nelson allegedly “felt an intense burning in his nostrils,” and lost his sense of smell and taste as a consequence. So Nelson, proceeding pro se, sued the defendants, alleging several claims, including: (1) defective product design; (2) fraud by concealment; (3) manufacturing defect; and (4) fraud by intentional misrepresentation/false promise. The defendants moved to dismiss these claims under FRCP 12(b)(6).
Design Defect and Fraud by Concealment Were Adequately Pled
The court denied the defendants’ motions on the design defect and fraud by concealment claims, as the plaintiff sufficiently pled them. For example, under California law, a product is defectively designed if it fails to meet an ordinary consumer’s expectations. Here, the plaintiff met the “ordinary consumer” standard by alleging that by simply applying the nasal spray to his nostrils, he suffered the total and irreversible loss of his ability to smell and taste. Given that a product designed for intranasal use is not expected to cause irreparable injury to the nose if used in a foreseeable manner, the court agreed that the plaintiff’s claim was sufficiently pled.
Likewise, to allege fraud by concealment, a plaintiff must plead several elements, including that the defendants must have concealed or suppressed a material fact and the plaintiff must have been aware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact. Here, the plaintiff pled numerous material facts that the defendants supposedly concealed – e.g. that the defendants entered into agreements with third parties not to disclose flawed clinical studies in which the defendants did not test for the presence of a cold in test subjects. The plaintiff alleged that had he known of these facts, he would have refrained from using the products.
Manufacturing Defect and Fraud by Intentional Misrepresentation/False Promise Claims Need More Work
The court, however, granted the defendants’ motions on the manufacturing defect and fraud by intentional misrepresentation/false promise claims. Under California law, a manufacturing defect differs from the manufacturer’s intended result. Also, the manufacturing-defect claim is sufficiently pled if the plaintiff proves that a suitable design is in place but the manufacturing process has in some way deviated from that design. Here, instead of alleging that the products deviated from the defendants’ intended manufacture or contending that a suitable design was in place for the products that would have avoided any alleged risks, the plaintiff alleged the defendants failed to manufacture products “in accordance with prevailing industry and scientific standards.” The court held that such conclusory statements could not put the defendants on notice of an alleged manufacturing defect.
The court reached a similar result for the fraud by intentional misrepresentation/false promise claims. To satisfy the claims, the plaintiff must prove, among other things, that there was a misrepresentation, knowledge of facility of the misrepresentation, and intent to induce reliance on the misrepresentation. Here, the plaintiff merely parroted the elements of each claim instead of clearly stating who made the alleged representations or why the plaintiff believes that the representations are false. Furthermore, the plaintiff alleged no facts giving rise to a reasonable inference of his reliance on any of the statements. Thus, the defendants’ motion regarding the claims was granted.
In the end, the court granted the plaintiff the ability to seek leave to amend the complaint as to the dismissed claims – so not all was loss for him. That said, the case serves as notice that federal courts will not allow plaintiffs to simply draft complaints without sufficient factual allegations. As a result, plaintiffs have to put in sufficient time and thought before bringing lawsuits. Ultimately, better pled complaints are a good thing for defendants and our judicial system.