Heightened Pleading Standard Being Applied

Jan 1, 2010 | Topics: Class Actions, Product Liability

Trial courts throughout California are applying the heightened factual pleading standards of Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) to dismiss conclusory, nonspecific tort allegations by plaintiffs:

• Southern District Dismisses Vitamin Class Action Complaint

The U.S. District Court for the Southern District of California dismissed a class action complaint accusing Bayer Corp. of misrepresenting the cancer-preventing nature of its men's vitamin products.

Plaintiff filed a putative class action on behalf of all persons in the United States or, alternatively, all California residents, who since 2005 purchased the men's health vitamin products, alleging violations of California’s Unfair Competition Law (CUCL), Business & Professions Code § 17200; Consumers Legal Remedies Act (CLRA), and Civil Code § 1750.

Defendants moved to strike allegations in the Complaint that it claimed violated Plaintiff’s duty under Fed. R. Civ. P. 11 to conduct a reasonable factual investigation. The Court granted Defendants’ motion to strike, and then dismissed the Complaint, without prejudice, after finding it failed to meet the standard of factual pleading required by Iqbal and Twombly.

Providing guidance for Plaintiff on any further amendments, the Court noted that Plaintiff cannot expand the scope of his claims to include a product he did not purchase or advertisements relating to a product that he did not rely upon. The statutory standing requirements of the UCL and CLRA are narrowly prescribed and do not permit such generalized allegations. Plaintiff amended and another motion to dismiss the amended complaint is currently before the Court. Johns v. Bayer Corp. et al.,3:09-cv-01935 DMS(JMA) (S.D. Cal. Feb. 9, 2010).

• It’s Not Butter

Similarly, in Rosen v. Unilever United States, Inc., 2010 U.S. Dist LEXIS 43797 (May 3, 2010), the U.S. District Court for the Northern District of California dismissed an action alleging Unilever's advertising claim that "I Can't Believe It's Not Butter" is "made with a blend of nutritious oils" was untrue because the spread is made with partially hydrogenated oil, which it alleged has "widespread and debilitating" risks, such as coronary diseases, heart attacks, and even death. Unilever moved to dismiss, claiming that Rosen's Complaint was an attack on "nonactionable sales pitches" in the company’s advertising. The court determined that the Complaint failed to meet the Twombly and heightened pleading standards, noting that "the court concludes that the illogical relationships Plaintiff draws between the nature of partially hydrogenated oil and the representations Defendant makes about the blend of oils renders Plaintiff's complaint implausible on its face." 

No Post-Sale Duty to Warn

In a wrongful death action against the manufacturer of a propane heater, the Ninth Circuit Court of Appeals affirmed the District Court’s entry of judgment for a defendant manufacturer on the grounds that there was no post-sale duty to warn of an already accounted for danger.

Plaintiff initiated the action on behalf of her husband and her father, who both died of carbon monoxide poisoning after using a Coleman heater inside a 25- foot camper during a hunting trip. Plaintiff argued that consumer claims of carbon monoxide poisoning from operating other Coleman model propane heaters in enclosed spaces gave Coleman a post-sale duty to warn of this risk for the product used by Plaintiff’s family. The Ninth Circuit found that Plaintiff did not present evidence of a new and distinct danger which arose after the heater was originally sold. The danger of carbon monoxide poisoning was known to Coleman before the sale, and the heater was sold with warnings that, if followed, would prevent carbon monoxide poisoning. As such there was no post-sale duty to warn of a danger that was already accounted for in warnings given at the time of sale. Daniel v. Coleman  2010 U.S. App. LEXIS 6289 (9^th Cir.)