A breast cancer lawsuit based on trace levels of benzene in aerosol antiperspirant was dismissed with prejudice by a federal judge in Louisiana, because causation was not sufficiently pled. In particular, the plaintiffs failed to plead that (1) the plaintiff used a product that actually contained benzene and (2) benzene exposure can cause the plaintiff’s specific type of cancer. See Rooney v. Procter & Gamble Co., No. 22-11654, 2023 WL 1419870 (E.D. La. Jan. 31, 2023).
Background
The plaintiff and her spouse alleged that the sole defendant, who manufactured, advertised, and sold the aerosol antiperspirant, violated the Louisiana Products Liability Act (LPLA) by selling the product without adequate warnings. An essential element of this claim is that the defendant’s failure to issue an adequate warning was the proximate cause of the plaintiffs’ damages.
In a prior order, where the court dismissed the plaintiffs’ second amended petition without prejudice and granted leave to amend for a third time, the court outlined the pleading deficiencies. Of the several, two are notable here. First, the plaintiffs stated, in conclusory fashion, that the product used by the plaintiff contained benzene. Second, the plaintiffs failed to plausibly allege that benzene exposure can cause breast cancer. Despite the guidance from the court’s prior order, the plaintiffs’ third amended complaint again failed to plead enough facts to survive a Rule 12(b)(6) motion to dismiss.
Court’s Decision
On whether the plaintiff actually used an aerosol antiperspirant that contained benzene, the plaintiffs claimed that the product used by the plaintiff shares a “lot number” with other products that contained benzene. The defendant, however, clarified that the “lot number” cited by the plaintiffs refers to the product generally, not a specific batch. Based on its own review of the lot number materials, which were referred to in the pleadings and attached to the motion to dismiss, the court found that, at most, these allegations merely confirmed the type of antiperspirant, not whether the particular can used by the plaintiff contained benzene.
On whether the plaintiff’s specific type of cancer can be caused by benzene, the plaintiffs did not plead additional details on the connection between benzene and the plaintiff’s breast cancer. Instead, the plaintiffs characterized her disease more generally, possibly attempting to make the diagnosis fit with scientific literature on the connection between benzene and other cancers. In any event, the court was not convinced. The court remarked that this “retreat to more generalized allegations” failed to address the court’s concerns, noting that even though the plaintiffs listed a number of health issues associated with benzene exposure, the plaintiff’s cancer was not included.
The court granted the defendant’s motion to dismiss with prejudice and rejected the plaintiffs’ request for leave to amend a fourth time. In doing so, the court specifically cited the plaintiffs’ repeated failure to cure the deficiencies in their complaint and found that granting leave to amend would be futile.
Looking Forward
Despite the outcome in this case, plaintiff’s attorneys are expected to continue filing trace benzene cases even where causation is weak or unsupported. Further, industry observers expect trace benzene litigation to increase in 2023. As a result, court decisions, such as the one, will likely affect filing trends and how trace benzene litigation continues to develop.
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