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From Products Liability Law Daily, February 23, 2016

‘Flushable’ wipes consumers’ causation evidence raises jury question

By Greg Hammond, J.D. and Pamela C. Maloney, J.D.

Consumers were allowed to proceed on product liability failure-to warn claims against the manufacturer of “flushable” wipes based on a Florida federal district court’s finding that their evidence was sufficient to establish causation. However, the consumers lacked standing to bring a Florida Deceptive and Unfair Trade Practices Act (FDUTPA) claim based on their purchase of the wipes, which they contended were not actually flushable. (Sweeney v. Kimberly-Clark Corp., February 22, 2016, Kovachevich, E.).

The consumers filed a class action against Kimberly-Clark Corp., Wal-Mart Stores, Inc., and Rockline Industries, Inc., alleging that they made several purchases of Cottonelle and Equate brand “flushable” wipes, but that the wipes clogged their pipes. Nevertheless, the consumers continued to purchase the flushable wipes because they were “smaller and more esthetically pleasing.” The defendants moved for dismissal or, in the alternative, for summary judgment on the strict liability and negligent failure-to-warn and the FDUTPA claims, among others.

Proximate cause. While the plaintiffs were “faced with a daunting task” of proving causation on their products liability claims, the court determined that the evidence presented gave rise to a reasonable inference that both the manufacturers’ wipes were a cause of the clog in the plumbing. The plaintiffs testified to having used both Cottonelle and Equate brand wipes before the clog incident, and they testified to observing their plumber remove a three to four inch ball of wipes from their plumbing system. However, the record was devoid of any evidence that “either or both” of the defendants’ wipes were specifically responsible for the clog. The plaintiffs did not retain any receipts or packaging from the wipes they believe caused the clog, and did not photograph or preserve the wipes at issue. On the other hand, the fact that the plaintiffs testified to having used both Cottonelle and Equate brand wipes leading up to the clog incident, coupled with the fact that they testified to observing their plumber remove the ball of wipes from their plumbing system, was sufficient to give rise to a reasonable inference that both defendants' wipes were a cause of the clog. The court stated that other possible inferences could be drawn but that where reasonable minds could differ, summary judgment was inappropriate. Thus, the court denied the defendants’ motions without prejudice as they pertained to causation.

FDUTPA claim. The court concluded that the consumers lacked standing to prosecute their FDUTPA claim under a “price premium” theory of damages. The plaintiffs claimed that, absent and but for the defendants’ false and deceptive representations, they would not have purchased the defendants’ flushable wipes, or paid a higher price for the flushable wipes rather than purchasing lower cost wipes not marketed, labeled, and represented to be flushable. However, the fact that the consumers continued to purchase and use the defendants’ “flushable” wipes made the consumers’ theory of damages too speculative to constitute an actual injury under Article III, the court concluded.

The consumers were not actually seeking damages under a “price premium” theory, the court noted. Rather, they appeared to believe that they should pay less for the flushable wipes because they were paying for, but not receiving, the attribute of “flushability.” Under this theory, the consumers’ measure of damages was the hypothetical price that the flushable wipes should sell for if marketed as non-flushable. The court concluded that it would have to quantify how much of the wipes’ value was attributable to their flushability versus how much of their value was attributable to esthetics, which was too speculative to be the premise of an actual injury under Article III.

The case is No. 8:14-cv-3201-T-17EAJ.

Attorneys: Anthony Garcia (AG Law, Inc.) for Dennis Patrick Sweeney, Jr. Chris S. Coutroulis (Carlton Fields Jorden Burt, PA) for Kimberly-Clark Corp. Gregory W. Kehoe (Greenberg Traurig LLP) for Wal-Mart Stores, Inc. Douglas B. Brown (Rumberger, Kirk & Caldwell, PA) for Rockline Industries, Inc.

Companies: Kimberly-Clark Corp.; Wal-Mart Stores, Inc.; Rockline Industries, Inc.

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