Products Liability Law Reporter

A federal district court granted the plaintiffs’ motion for leave to file a first amended complaint in a products liability suit brought by a regular sunscreen user who developed acute lymphoblastic leukemia.

Here, Debra Cascio began using Neutrogena Beach Defense sunscreens in approximately 2016. She applied sunscreen to various parts of her body three to four times daily. In 2021, she stopped using the sunscreens after receiving an email from Costco informing her of a voluntary recall of Neutrogena aerosol sunscreens, including Beach Defense products. She was then diagnosed as having acute lymphoblastic leukemia and underwent extensive treatment, including a stem cell transplant. Cascio and her husband sued Johnson & Johnson and others, alleging claims for products liability, negligence, misrepresentation, breach of warranty, and loss of consortium. The district court dismissed the plaintiffs’ original complaint but gave them an opportunity to move for leave to amend, which they did.

Granting the motion, the district court found that the plaintiffs remedied the gaps in their pleadings by specifically alleging that the sunscreens were contaminated with high enough levels of benzene to result in exposure to a cumulative chronic dose of benzene. The court rejected the defense argument that this allegation was insufficient because it was not accompanied by supporting evidence. The plaintiffs need only plausibly allege causes of action at the pleading stage and need not provide evidentiary support, the court said.

The court added that the plaintiffs had provided detailed allegations about the use of isobutane as an aerosol propellant and how benzene can be produced as a residual solvent when using isobutane. The court also found that the plaintiffs had provided information regarding 11 sunscreen cans that came from batches at a manufacturing location where the isobutane supply was contaminated with benzene over multiple years. Thus, the court held, the plaintiffs’ allegations are neither conclusory nor threadbare and are entitled to a presumption of truth.

Finding that the plaintiffs also adequately pleaded their misrepresentation cause of action by listing 13 facts the defendants allegedly failed to disclose, the court directed the clerk to docket the first amended complaint as the operative complaint.

Citation: Cascio v. Johnson & Johnson, 2024 WL 3298749 (N.D. Ga. July 3, 2024).

Plaintiff counsel: Evan T. Rosemore, Francois M. Blaudeau, AAJ member William L. Bross IV, and AAJ member W. Lewis Garrison Jr., all of Birmingham, Ala.