In Re Johnson & Johnson Talcum Powder Prods. Mktg., Sales Practices & Liab. Litig.

903 F.3d 278
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 6, 2018
Docket17-2980
StatusPublished
Cited by119 cases

This text of 903 F.3d 278 (In Re Johnson & Johnson Talcum Powder Prods. Mktg., Sales Practices & Liab. Litig.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Johnson & Johnson Talcum Powder Prods. Mktg., Sales Practices & Liab. Litig., 903 F.3d 278 (3d Cir. 2018).

Opinions

SMITH, Chief Judge.

The question presented in this appeal from a dismissal of a class action is both narrow and novel: Has a plaintiff-who has entirely consumed a product that has functioned for her as expected-suffered an economic injury solely because she now sincerely wishes that she had not purchased that product? We hold that such a plaintiff has not suffered an economic injury *281sufficient to bring a claim in federal court. More succinctly, buyer's remorse, without more, is not a cognizable injury under Article III of the United States Constitution.

A plaintiff alleging an economic injury as a result of a purchasing decision must do more than simply characterize that purchasing decision as an economic injury. The plaintiff must instead allege facts that would permit a factfinder to determine, without relying on mere conjecture, that the plaintiff failed to receive the economic benefit of her bargain. Because the plaintiff here has failed to plead facts sufficient to establish economic harm, the District Court's judgment will be affirmed.

I. BACKGROUND

Plaintiff Mona Estrada alleges that a woman's perineal use of Defendant Johnson & Johnson's Baby Powder can lead to an increased risk of developing ovarian cancer. JA 47. Without question, that is a serious allegation. Yet the validity of Plaintiff's epidemiological theory is not for this court to decide.1 Nonetheless, because Estrada has artfully woven that serious allegation into her complaint-despite it having little connection to the alleged economic injury that forms the basis of her claim-we must begin our discussion by carefully describing what this case is not about.

First, Plaintiff does not allege that a product has caused her physical injury.2 Estrada does not allege that she has ovarian cancer, nor does she allege even an increased risk of developing cancer. Second, this case makes no claim of emotional injury. Estrada does not allege, for example, that she suffers from a fear of someday developing ovarian cancer. Third, this case does not involve allegations of a defective product. Estrada purchased Baby Powder labeled as being "designed to gently absorb excess moisture," and marketed as being able to "keep[ ] skin feeling soft, fresh and comfortable," and help "reduce the irritation caused by friction." JA 52. She does not allege that her powder failed to adequately perform any of these functions.3 Fourth, this case does not involve a durable product still in a plaintiff's possession. Instead, the complaint concerns a nondurable product that has already been consumed in its entirety.4 Estrada does not, for example, seek to be reimbursed for powder that she still possesses but cannot use. Finally, this case does not involve any number of other economic theories that might confer Article III standing on other plaintiffs. For instance, Estrada does not seek to be reimbursed *282for medical monitoring expenses, nor does she seek to recoup transaction costs associated with reselling or returning Baby Powder.

What, then, does Estrada allege? Her theory of recovery is simply that she suffered an economic injury by purchasing improperly marketed Baby Powder. JA 49. According to Estrada, had she been properly informed that using Baby Powder could lead to an increased risk of developing ovarian cancer, she would not have purchased the powder in the first place. JA 49, 70. Characterizing this as an economic injury, she seeks relief for herself and a class of similarly situated consumers.5

Estrada first brought this lawsuit in the United States District Court for the Eastern District of California. JA 46. On March 27, 2015, that court dismissed Estrada's complaint for lack of Article III standing. Estrada Br. 7. Estrada then filed an amended complaint, but before the Eastern District of California could rule on that complaint, the case was consolidated as part of a Multidistrict Litigation proceeding and transferred to the United States District Court for the District of New Jersey (the "District Court"). JA 44; Estrada Br. 7.

On July 14, 2017, the District Court dismissed Estrada's complaint without prejudice for lack of Article III standing, and granted her leave to amend. JA 5. After Estrada informed the District Court that she chose not to amend and would stand on her complaint, the District Court dismissed the case on August 10, 2017. JA 4.

In concluding that Estrada did not have Article III standing, the District Court explicitly considered whether Estrada's allegations fell within any one of three different theories of economic injury: (1) alternative product; (2) premium price; and (3) benefit of the bargain. JA 16-17. Estrada challenges this tripartite analysis, contending that the District Court inappropriately funneled her allegations into "one of three assumed damage methodologies." Estrada Br. 7. But Estrada was not restricted to the three theories considered by the District Court; she was free to present additional theories of her own-particularly by amending her complaint when the District Court offered her the opportunity to do so. In examining Estrada's complaint through the lens of three different theories of injury, the District Court merely fulfilled its duty to "examine the allegations in the complaint from a number of different angles" in order to see if the "purported injury can be framed in a way that satisfies Article III." Finkelman v. Nat'l Football League , 810 F.3d 187, 197 (3d Cir. 2016).

Under the alternative product theory, a plaintiff might successfully plead an economic injury by alleging that, absent the defendant's conduct, she would have purchased an alternative product that was less expensive. Under this theory, the economic injury could be calculated by determining the difference in price between the defendant's more expensive product and the less expensive alternative. Portions of Estrada's complaint can reasonably be read as an attempt to allege this very theory of injury. Her complaint states, for example, that had she "known the truth about the safety of using [Johnson & Johnson's talc-based Baby Powder], she would not have purchased the product," but instead *283"would have purchased an alternative product containing cornstarch instead of talc." JA 49.6 According to Estrada's complaint, "alternative powder products that are cornstarch[-]based ... do not pose a risk of ovarian cancer and are otherwise functionally the same as talc products." JA 54. Upon considering these allegations, the District Court concluded that Estrada could not avail herself of the alternative product theory because she failed "to allege that a cornstarch-based product would have been cheaper ." JA 30. In other words, paying less for Baby Powder than an alternative would not constitute an economic injury.

Under a second theory analyzed by the District Court, the premium price theory, a plaintiff may plead an economic injury by alleging that the defendant unlawfully advertised its product as being "superior" to others.

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Bluebook (online)
903 F.3d 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-johnson-johnson-talcum-powder-prods-mktg-sales-practices-liab-ca3-2018.