The Court holds that Plaintiffs cannot state a claim as a matter of law because they have not alleged an injury or ascertainable loss.
Plaintiffs claim that they have not received the benefit of their bargain based upon studies indicating an increased risk of ovarian cancer associated with genital use of Johnson's(R) Baby Powder.
Plaintiffs state that they are not claiming physical harm or the recovery of personal injury damages.
(Class Action Complaint, ¶7).
Thus, Plaintiffs are correct that this is "not a personal injury action."
(ECF No. 15 at 2).
The Court, however, agrees with the reasoning of In re BPA I in holding that Plaintiffs have suffered no injury.
Plaintiffs allege that they used Johnson's(R) Baby Powder, but do not allege that they have suffered any medical consequences.
While they contend that they would not have purchased and used Johnson's(R) Baby Powder had they known about the increased ovarian cancer risk, the Court holds that "these Plaintiffs received 100% use (and benefit) from the products and have no quantifiable damages."
In Re BPA I, 687 F. Supp. 2d at 912; see also Hughes v. Chattem, Inc., 818 F. Supp. 2d 1112, 1118 (S.D. Ind. 2011)("Plaintiffs have neither alleged that the Dexatrim they took caused any physical harm nor even that it did not facilitate their weight loss efforts.
They correctly state that hexavalent chromium is harmful in 'large amounts,' but they do not connect that piece of evidence to any facts personally affecting them."); Polk v. KV Pharm. Co., No. 4:09-CV-00588 SNLJ, 2011 WL 6257466, at *5 (E.D. Mo. Dec. 15, 2011 )("Plaintiff has not alleged the Medication was anything other than what it has always purported to be.
Further, Plaintiff failed to allege he did not receive the benefit from the Medication for which he bargained; i.e. the medication did not perform as intended.").
The Court believes Plaintiffs' proposed liability theory, which requires no demonstrable loss of any benefit, would lead to absurd results and holds that Plaintiffs fail to state a claim as a matter of law.