Plaintiffs allege that the "BPA Cases are inapplicable to this case because, here, there is no allegation that the Plaintiffs have 'fully used' and benefitted from the product at issue, an allegation key to the BPA Cases' analyses."
(ECF No. 15 at 9).
Plaintiffs' argument seems specious, given their allegation that Plaintiffs "purchased Johnson's(R) Baby Powder for personal use."
(Class Action Complaint, ¶11).
Plaintiffs do not allege that they did not use this product due to the increased ovarian cancer risk.
Plaintiffs do not allege any current medically diagnosable injury as a result of using Johnson's(R) Baby Powder, nor do they allege a medical monitoring claim.
Moreover, the cases cited by Plaintiffs do not support allowing a MMPA claim under these circumstances to proceed.
In all of the cases cited, the plaintiffs have suffered an actual economic injury based upon a fraudulent misrepresentation.
See Grabinski, 136 F.3d at 570 (affirming judgment as to liability and actual damages for MMPA claim against dealership and its employees where vehicle was not as described and required thousands of dollars of repairs); Edmonds, 344 S.W.3d at 223-24 (reversing trial court's grant of summary judgment on MMPA claim against appraisers and other individuals involved in a mortgage transaction where plaintiff alleged an ascertainable loss of $275 for a home appraisal); Clement, 103 S.W.3d at 900 (reversing the trial court's grant of summary judgment on MMPA claim where plaintiff was told she could return the car at any time without penalty but the dealership tried to hold plaintiff to a five-year lease agreement); Sunset Pools of St. Louis, Inc., 869 S.W.2d at 884-86 (affirming judgment in favor of purchaser where spa control buttons stuck and water leaked into the control panel).
Here, Plaintiffs have not alleged a similar ascertainable loss.
Plaintiffs purchased and used Johnson's(R) Baby Powder.
Unlike the cases cited by Plaintiffs, Johnson's(R) Baby Powder "fulfilled its originally anticipated function" for Plaintiffs so the Plaintiffs "obtained the full anticipated benefit of the bargain."
In re BPA I, 687 F. Supp. 2d at 912.
Although Plaintiffs contend that they would not have purchased Johnson's(R) Baby Powder if they had known the "true facts," they obtained the "full value" of the product before learning the truth so they have not suffered any economic damage from their purchase.
In re BPA I, 687 F. Supp. 2d at 913.