This Just In: California Law Doesn't Allow Product Liability Claims By Plaintiffs With No Damages

   

    Company manufactures product.  Consumer buys, and uses, and gets intended  result.  Then, company recalls product from retailers (but not consumers) for failure to comply with standards (in this case, industry and FDA GMPs, or good manufacturing practices).  Consumer sues for herself and -- wait for it -- all others similarly situated.  She contends that

the pharmaceutical products . . . should not have been offered for sale in California because the products were adulterated, were not manufactured according to GMP requirements, and were not otherwise fit for the purposes intended. She seeks economic damages and restitution. Expressly disclaiming any personal injury claims, she "does not seek damages for personal injury or other physical harm, either for herself or any class members." 

    Says Northern District of California Judge Alsup:  thanks for playing, but  that's a no go:

As a concession to the shortness of life, California law does not allow a civil lawsuit to recover the purchase price for medicine consumed by the purchaser which performed as intended with no harm or fear of future harm merely because the consumer would not have purchased it had he or she known that the medicine came from a plant whose quality-control had been compromised. That the CDP was adulterated due to a lack of compliance with GMP requirements is not enough, without more, to state a claim. A plaintiff must allege an actual manifestation of a defect that results in some injury or rational fear of 'future injury in order to state cognizable claims. See Khan v. Shiley, 217 Cal. App. 3d 848, 855 (1990); see also Am. Suzuki Motor Corp. v. Superior Court, 37 Cal. App. 4th 1291, 1298-99 (1995).

    That would be last month's decision in Myers-Armstrong v. Actavis Totowa LLC, 2009 WL 1082026 (N.D. Cal. April 22, 2009).  In the understated words of Beck and Hermann (to whose Drug and Device Law goes a hat tip for this case), "What a worthless lawsuit."

Brief off-topic note:  At the beginning of the year, I quit posting the off-topic posts here, and mvoed them, the you-tubeology, etc. over to CalBizLitAfterHours.com, while keeping a list of links to them on the column to the right of CalBizLit.  I'm going to keep doing it this way, but just want to mention that AfterHours is featuring Booker T  right now.