FARUQI & FARUQI LLP NOTCH IMPORTANT WIN FOR PLAINTIFFS AT THIRD CIRCUIT

On November 7, the Third Circuit Court of Appeals issued an Order in Huertas v. Bayer US LLC, No. 23-2178, reversing the District of New Jersey’s prior ruling dismissing the plaintiffs’ claims related to Bayer’s Lotrimin and Tinactin antifungal spray products “contaminated with benzene,” which “has been labeled a human carcinogen and linked to cancers[.]” Huertas v. Bayer US LLC, No. 23-2178, 2024 WL 4703136, at *1 (3d Cir. Nov. 7, 2024). “In October 2021, Bayer voluntarily recalled certain Lotrimin and Tinactin spray products after it discovered benzene in samples of the products.” Id.

On Motion to Dismiss, the District of New Jersey held, among other things, that the “Plaintiffs d[id] not plead facts that demonstrate that the Products did not perform and clear up their infections, or that they experienced recurring infections that required use of the remaining Products they discarded.” On appeal, the Third Circuit took a different approach, holding that “receiv[ing] products that were defectively manufactured with harmful levels of benzene causing them to be adulterated and therefore worthless” was a valid theory of economic injury. Huertas, 2024 WL 4703136, at *3. 

Importantly, the court held that the plaintiffs’ economic loss was not theoretical but an actual loss of value because, in receiving a “contaminated” product, they did not receive the product that they bargained for and wasted their money. “Plaintiffs need only plausibly allege that they purchased contaminated products. This does not require a showing that all products in the recall were contaminated, as this would impose a heightened standard requiring that it be more likely than not—or probable—that Plaintiffs purchased a defective product.” Id. at *6.

Faruqi & Faruqi, along with co-counsel, represent the plaintiffs in this action.