Defendants argue that Plaintiffs either lack standing or cannot state a claim because they have not alleged any injury based upon their purchase of Johnson's(R) Baby Powder.
(ECF No. 10 at 7-10)(citing In re Bisphenol-A (BPA) Polycarbonate Plastic Products Liab. Litig.("In re BPA I"), 687 F. Supp. 2d 897, 912 (W.D. Mo. 2009) clarified on denial of reconsideration, No. 08-1967-MD-W-ODS, 2010 WL 286428 (W.D. Mo. Jan. 19, 2010)("While [Plaintiffs] may contend they would not have purchased the goods had they known about BPA, these Plaintiffs received 100% use (and benefit) from the products and have no quantifiable damages.").
Defendants contend that Plaintiffs "received exactly what they expected and the risks they complain of never affected them."
(ECF No. 10 at 10).
Therefore, Defendants assert that this Court should hold Plaintiffs "lack standing and their entire Complaint should be dismissed with prejudice." (Id.).
"The Court elects to treat the issue [of whether Plaintiffs have sufficiently alleged they suffered damage] as an alleged failure to state a claim because this is how the Eighth Circuit has treated the matter."
In re Bisphenol-A (BPA) Polycarbonate Plastic Products Liab. Litig., 687 F. Supp. 2d 897, 910 (W.D. Mo. 2009).
In response, Plaintiffs contend that they have alleged an ascertainable loss.
(ECF No. 15 at 6).
Plaintiffs rely upon the allegation that they "suffered injury in fact and a loss of money in that they have been deprived of the benefit of their bargain and have spent money on Johnson's Baby Powder when it contained serious risks, which were known to Defendants but undisclosed, concealed, and misrepresented by Defendants."
(ECF No. 15 at 6 (citing Class Action Complaint, ¶78); ECF No. 15 at 8 ("Plaintiffs paid more for the product than they otherwise would have paid for it had its safety risk been properly disclosed."); ECF No. 15 at 9 ("the injury will be redressed by a favorable decision in the amount of 'the difference between the actual value of the property and what its value would have been if it had been as represented'" (citing Sunset Pools of St. Louis, Inc. v. Schaefer, 869 S.W.2d 883, 886 (Mo. Ct. App. 1994)).
Plaintiffs contend that "Defendants violated the MMPA with their deceptive business practices in marketing [Johnson's(R) Baby Powder] to consumers," not by "exposing people to personal injury from a risky product" as claimed by Defendants.
(ECF No. 15 at 9, n.3).
Plaintiffs state that they are entitled to '"the difference between the actual value of the property and what its value would have been if it had been as represented.'"
(ECF No. 15 at 6 (citing Grabinski v. Blue Springs Ford Sales, Inc., 136 F.3d 565, 570 (8th Cir. 1998); Edmonds v. Hough, 344 S.W.3d 219, 223-24 (Mo. Ct. App. 2011); Clement v. St. Charles Nissan, Inc., 103 S.W.3d 898, 900 (Mo. Ct. App. 2003)).