<i>Twombly</i> and <i>Iqbal</i> As Applied to Non-Fraud No-Injury Claims

One of the most fundamental tenets every law student learns is that plaintiffs must establish an injury to prevail in their case. For years, a class of cases known as “no-injury” product liability claims have been addressed by courts and mostly have been dismissed. Plaintiffs in these cases bring causes of action based on a product's performance, but do not allege that they suffered injury from the product. Another fundamental proposition that every law student entering law school after 2007 learns is that, to survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a complaint must be plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), have had a far-reaching impact on civil cases.

This article explores the application by a number of courts of the Twombly and Iqbal standards to no-injury cases involving breach of warranty claims. As the cases demonstrate, no-injury claims, which were already receiving increased scrutiny pre- Twombly and Iqbal, have frequently been dismissed under the plausible pleading standard. Two cases that have managed to survive the Twombly and Iqbal standards are also examined. The article concludes with some practical considerations for preparing motions to dismiss no-injury claims in light of the plausibility standard and recent cases.

What Is a No-Injury Case?

No-injury product liability cases typically are based on representations about products by product sellers, and the alleged unmet expectations of consumers as to those products. As the U.S. Court of Appeals for the Fifth Circuit explained:

The core allegation in a no-injury product liability class action is essentially the same as in a traditional products liability case: the defendant produced or sold a defective product and/or failed to warn of the product's dangers. The wrongful act in a no-injury products suit is thus the placing of a dangerous/defective product in the stream of commerce. ' The striking feature of a typical no-injury class is that the plaintiffs have either not yet experienced a malfunction because of the alleged defect or have experienced a malfunction but have not been harmed by it. Therefore, the plaintiffs in a no-injury products liability case have not suffered any physical harm or out-of-pocket economic loss.

Coghlan v. Wellcraft Marine Corp., 240 F.3d 449, 455 n.4 (5th Cir. 2001).

Many no-injury cases are based on allegations of fraud and have been dismissed for failing to satisfy the heightened standard of Federal Rule of Civil Procedure 9(b), which requires that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). As an Illinois district court explained: [Rule 9(b)] require[s] the plaintiff to state the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff. ' The heightened pleading requires, therefore, a complaint alleging fraud to contain more substance to survive a motion to dismiss as compared to a Rule 12(b)(6) motion based on another cause of action.

Jasper v. Abbott Labs., Inc., 834 F. Supp. 2d 766, 770 (N.D. Ill. 2011) (citation and internal quotation marks omitted).

Twombly and Iqbal

Under Twombly and Iqbal, cases not within the scope of Rule 9(b) still must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal' 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

Recent No-Injury Cases Post- Twombly and Iqbal

Courts have long been critical of no-injury product liability claims. See, e.g., Rivera v. Wyeth-Ayerst , 283 F. 3d 315, 319'21 (5th Cir. 2002) (concluding that plaintiffs lacked standing because the pain killer worked as to the plaintiffs, and noting that “plaintiffs apparently believe that if they keep oscillating between tort and contract law claims, they can obscure the fact that they have asserted no concrete injury. Such artful pleading, however, is not enough to create an injury in fact.”); Briehl v. Gen. Motors Corp., 172 F.3d 623, 628 (8th Cir. 1999) (upholding dismissal of a complaint where plaintiffs did not allege any manifest defect in their brakes).

The pleading standards set forth in Twombly and Iqbal provide courts with even more reason to scrutinize and to dismiss these claims. For instance, post- Twombly and Iqbal, the U.S. Court of Appeals for the Eighth Circuit reviewed a district court's dismissal under Federal Rule of Civil Procedure 12(b)(6) under the Twombly and Iqbal standards. O'Neil v. Simplicity, Inc., 574 F.3d 501, 503 (8th Cir. 2009). In that case, crib purchasers alleged, variously, violation of the Magnuson-Moss Warranty Act, breach of express warranty, and claims under three Minnesota consumer protection statutes. The plaintiffs purported to represent a class of individuals who purchased cribs subject to a recall who had not experienced personal injury from the allegedly defective cribs. They claimed that they did not receive the benefit of their bargain because they purchased a crib that was unsafe. The Eighth Circuit rejected their claim, reasoning that “because the O'Neils' crib has not exhibited the alleged defect, they have necessarily received the benefit of their bargain” and noting that the matter was “similar to other no-injury cases, in that the O'Neils have attempted to refashion what is at its core a no-injury products liability suit into a suit based in contract.” Id. at 504. The court concluded, therefore, that the complaint failed to state a claim to relief that was plausible on its face, and affirmed the district court's granting of the defendants' motion to dismiss.

Similarly, a lower court in the Eighth Circuit granted a defendant's motion to dismiss the complaint under Twombly and Iqbal where a plaintiff brought a class action suit against a defendant-manufacturer on the basis of her purchase of its Similac infant formula subject to a recall for contamination with beetles. Jasper, 834 F. Supp. 2d at 768. The plaintiff did not allege that her son suffered any physical injury from the formula. She brought claims for, inter alia , breach of warranty and unjust enrichment.

The court reasoned that the plaintiff “fail[ed] to adequately allege that the Similac that she purchased lacked the benefits that Abbott advertised or that she subsequently failed to receive the benefit of the bargain.” Id. at 774. The court also reasoned further that the plaintiff did not allege that the purchased formula was contaminated or that it caused any injury to her or her son; simply, “Jasper has not adequately alleged a breach of warranty because she has not adequately alleged that her Similac was defective.” Id . The court, without much further analysis, dismissed the plaintiff's unjust enrichment claims because she “ha[d] not adequately alleged that Abbott unjustly benefitted from her Similac purchase or that the Similac that she purchased was defective.” Id.

In a similar vein, a district court in California granted a defendant's motion to dismiss with prejudice, which was affirmed by the Ninth Circuit where the plaintiffs brought a putative class action alleging that Apple, Inc. breached its warranty with respect to its iPods. Birdsong v. Apple Inc., No. 06-02280, 2008 U.S. Dist. LEXIS 112106 (N.D. Cal. June 13, 2008), aff'd, 590 F.3d 955 (9th Cir. 2009). The plaintiffs were purchasers of iPods who did not claim any actual hearing loss, but, rather, alleged that the volumes that iPods were capable of reaching created an unreasonable risk of hearing loss.

The court concluded that the plaintiffs' claims were “inherent[ly] implausib[le],” specifically relying on the Twombly standard of plausibility, reasoning that “Plaintiffs' legal conclusion that iPods create an unreasonable risk of hearing loss to users is insufficient. Twombly, 127 S. Ct. at 1965. Rather, a plausible set of facts must either be alleged or be apparent to the Court upon which plaintiffs could prevail.” Id. at *9. Simply put, the users could control the volume of their iPods, and, therefore, could avoid any harmful use.

Relaxed Requirements

The plaintiffs in the foregoing cases failed to allege plausibly that their purchased products not only caused an injury, but also that there was any defect in them at all, rendering their claims susceptible to dismissal under Twombly and Iqbal. Where, however, an inherent defect was alleged and where signs of that defect had begun to show, at least one court relaxed the injury requirement. Baker v. Castle & Cooke Homes Haw., Inc., No. 11-00616, 2012 U.S. Dist. LEXIS 57954 (D. Haw. Apr. 25, 2012), involved a putative class action filed by homeowners against a home developer and manufacturers of brass fittings, alleging that their home plumbing systems included brass fittings susceptible to corrosion and likely to cause leaks resulting in damage to their homes and exposure to dangerous toxins that would cause physical injury. In support of their argument concerning standing, the plaintiffs provided a declaration of an engineer stating that the fittings “will corrode until they catastrophically fail” and that the corrosion “cannot be stopped.” The court first concluded that the plaintiffs had Article III standing-in-fact on the basis of the foregoing threat of injury and the alleged economic loss, namely, that they had to replace their pipe systems and that the value of their homes had decreased because their homes violated the Honolulu Plumbing Code.

The manufacturer moved to dismiss under Rule 12(b)(6) on the ground that the plaintiffs failed to allege injury, and they conceded at the hearing that none of the fittings in their homes had failed to date. The court granted the motion to dismiss as to the product liability, negligence, and strict liability claims on the ground that the plaintiffs failed to allege any injury. The court denied, however, the motion to dismiss the breach of the implied warranty of merchantability claim, finding that the defendant provided no authority establishing that damage to the product itself cannot constitute “injury” for the purpose of a breach of the implied warranty of merchantability.

Although the malfunction of the allegedly defective product had yet to manifest itself, the allegation that the product was inherently defective was sufficient: “Plaintiffs' alleged injury can therefore be characterized as the failure to receive the benefit of their bargain; that is, Plaintiffs allegedly received a defective product that prematurely corrodes and violates the Honolulu Plumbing Code.” Id. at *47.

The court found support in other decisions that permitted warranty claims involving products containing inherent defects that are “substantially certain to result in malfunction during the useful life of the product.” The court also emphasized that another Eighth Circuit decision involving brass fittings manufactured by the defendant held that the homeowners alleged sufficient injury by alleging that the brass fittings, at the time of installation, had a defect that violated Minnesota warranty law. The court in the Eighth Circuit decision had also distinguished O'Neil because there, the plaintiffs alleged only that the cribs might develop a dangerous defect, whereas corrosion in the fittings was already evident. Accordingly, a sign of the defect's manifestation with a declaration that the product will fail and the product's violation of a code was sufficient to satisfy the injury requirement for a breach of warranty claim.

Another case denying defendants' motion to dismiss represents an example of a case where, although there was no physical injury, plaintiffs paid for a product that was effectively unusable. In Hydroxycut Mktg. & Sales Practices Litig. v. Iovate Health Scis. Grp., 801 F. Supp. 2d 993 (S.D. Cal. 2011), the plaintiffs brought a class action based on their purchase of Hydroxycut, a weight-loss supplement, alleging numerous causes of action, including breach of implied warranty. The plaintiffs alleged that Federal Trade Commission rules required that the manufacturer have the level of proof claimed ' clinical proof ' at the time the claims were made, but the manufacturer did not. The manufacturer's own director of research until 2002 allegedly admitted that the majority of products it put on the shelves did not have pure clinical research to support them. Further, there were reports of doctors treating patients with health problems after taking Hydroxycut.

The FDA issued a press release warning consumers to stop using Hydroxycut immediately. The plaintiffs claimed that the product, although marketed as safe and effective, was neither, and they lost money and property, including the purchase price for the products and costs of health tests.

Even though the plaintiffs did not allege that they suffered adverse health effects, the court rejected the defendants' characterization of the plaintiffs' claims as no-injury claims: “Plaintiffs allege that the product they received was defective. Plaintiffs allege that instead of receiving the advertised safe and 'clinically proven' effective Hydroxycut products, they received products that were ineffective and unsafe when used as directed.” Denying defendants' motion to dismiss, the court distinguished this case from O'Neil in that:

[u]nlike ' the plaintiffs in O'Neil , who paid for and received a working crib, Plaintiffs in this case did not get what they paid for. According to the [complaint], Plaintiffs received a product with no proven weight-loss benefit (indeed, in an Iovate study, the subjects using Hydroxycut lost less weight than the placebo group) and the potential for serious harm. Thus, Plaintiffs did not get the benefit of their bargain and suffered economic injury.

Baker and Hydroxycut are similar in many ways, but not identical in their facts or reasoning. Baker was based on the conclusion that premature corrosion of the fittings resulted in a violation of the Honolulu Plumbing Code and constituted a failure of the fittings, and thereby caused damage to the homes. In Hydroxycut , however, the product did not do what it was supposed to do from the time of purchase, and therefore, did not serve its intended purpose, and the purchase price was a logical measure of damages. The inability of the product ever to serve its intended purpose constituted actual failure of the product.

Recommendations

In evaluating the likely success of a motion to dismiss in no-injury cases, you should consider the theories of liability, the specific allegations of defect, the nature of the injury claimed (including premature failure), the representations relating to the product, and the extent to which the plaintiff can present a plausible claim that she did not receive the benefit of the bargain.

In the wake of Twombly and Iqbal, no-injury complaints have been met with heightened scrutiny. Most cases have been dismissed. As Baker and Hydroxycut demonstrate, however, premature failure or complete ineffectiveness of the product may be enough to overcome a motion to dismiss. Without such facts, however, most courts deal with these cases the way that your first-year torts professor explained: No injury means no recovery.

James Rotondo, a member of this newsletter's Board of Editors, represents a broad range of corporate clients in product liability, negligence, insurance coverage, and commercial litigation matters at Day Pitney LLP in its Hartford, CT, office. Kaitlin Canty is an associate at the firm practicing in the areas of product liability and negligence law.

One of the most fundamental tenets every law student learns is that plaintiffs must establish an injury to prevail in their case. For years, a class of cases known as “no-injury” product liability claims have been addressed by courts and mostly have been dismissed. Plaintiffs in these cases bring causes of action based on a product's performance, but do not allege that they suffered injury from the product. Another fundamental proposition that every law student entering law school after 2007 learns is that, to survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a complaint must be plausible on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009), have had a far-reaching impact on civil cases.

This article explores the application by a number of courts of the Twombly and Iqbal standards to no-injury cases involving breach of warranty claims. As the cases demonstrate, no-injury claims, which were already receiving increased scrutiny pre- Twombly and Iqbal, have frequently been dismissed under the plausible pleading standard. Two cases that have managed to survive the Twombly and Iqbal standards are also examined. The article concludes with some practical considerations for preparing motions to dismiss no-injury claims in light of the plausibility standard and recent cases.

What Is a No-Injury Case?

No-injury product liability cases typically are based on representations about products by product sellers, and the alleged unmet expectations of consumers as to those products. As the U.S. Court of Appeals for the Fifth Circuit explained:

The core allegation in a no-injury product liability class action is essentially the same as in a traditional products liability case: the defendant produced or sold a defective product and/or failed to warn of the product's dangers. The wrongful act in a no-injury products suit is thus the placing of a dangerous/defective product in the stream of commerce. ' The striking feature of a typical no-injury class is that the plaintiffs have either not yet experienced a malfunction because of the alleged defect or have experienced a malfunction but have not been harmed by it. Therefore, the plaintiffs in a no-injury products liability case have not suffered any physical harm or out-of-pocket economic loss.

Coghlan v. Wellcraft Marine Corp. , 240 F.3d 449, 455 n.4 (5th Cir. 2001).

Many no-injury cases are based on allegations of fraud and have been dismissed for failing to satisfy the heightened standard of Federal Rule of Civil Procedure 9(b), which requires that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). As an Illinois district court explained: [Rule 9(b)] require[s] the plaintiff to state the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff. ' The heightened pleading requires, therefore, a complaint alleging fraud to contain more substance to survive a motion to dismiss as compared to a Rule 12(b)(6) motion based on another cause of action.

Jasper v. Abbott Labs., Inc. , 834 F. Supp. 2d 766, 770 (N.D. Ill. 2011) (citation and internal quotation marks omitted).

Twombly and Iqbal

Under Twombly and Iqbal, cases not within the scope of Rule 9(b) still must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal' 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

Recent No-Injury Cases Post- Twombly and Iqbal

Courts have long been critical of no-injury product liability claims. See, e.g., Rivera v. Wyeth-Ayerst , 283 F. 3d 315, 319'21 (5th Cir. 2002) (concluding that plaintiffs lacked standing because the pain killer worked as to the plaintiffs, and noting that “plaintiffs apparently believe that if they keep oscillating between tort and contract law claims, they can obscure the fact that they have asserted no concrete injury. Such artful pleading, however, is not enough to create an injury in fact.”); Briehl v. Gen. Motors Corp. , 172 F.3d 623, 628 (8th Cir. 1999) (upholding dismissal of a complaint where plaintiffs did not allege any manifest defect in their brakes).

The pleading standards set forth in Twombly and Iqbal provide courts with even more reason to scrutinize and to dismiss these claims. For instance, post- Twombly and Iqbal, the U.S. Court of Appeals for the Eighth Circuit reviewed a district court's dismissal under Federal Rule of Civil Procedure 12(b)(6) under the Twombly and Iqbal standards. O'Neil v. Simplicity, Inc. , 574 F.3d 501, 503 (8th Cir. 2009). In that case, crib purchasers alleged, variously, violation of the Magnuson-Moss Warranty Act, breach of express warranty, and claims under three Minnesota consumer protection statutes. The plaintiffs purported to represent a class of individuals who purchased cribs subject to a recall who had not experienced personal injury from the allegedly defective cribs. They claimed that they did not receive the benefit of their bargain because they purchased a crib that was unsafe. The Eighth Circuit rejected their claim, reasoning that “because the O'Neils' crib has not exhibited the alleged defect, they have necessarily received the benefit of their bargain” and noting that the matter was “similar to other no-injury cases, in that the O'Neils have attempted to refashion what is at its core a no-injury products liability suit into a suit based in contract.” Id. at 504. The court concluded, therefore, that the complaint failed to state a claim to relief that was plausible on its face, and affirmed the district court's granting of the defendants' motion to dismiss.

Similarly, a lower court in the Eighth Circuit granted a defendant's motion to dismiss the complaint under Twombly and Iqbal where a plaintiff brought a class action suit against a defendant-manufacturer on the basis of her purchase of its Similac infant formula subject to a recall for contamination with beetles. Jasper, 834 F. Supp. 2d at 768. The plaintiff did not allege that her son suffered any physical injury from the formula. She brought claims for, inter alia , breach of warranty and unjust enrichment.

The court reasoned that the plaintiff “fail[ed] to adequately allege that the Similac that she purchased lacked the benefits that Abbott advertised or that she subsequently failed to receive the benefit of the bargain.” Id. at 774. The court also reasoned further that the plaintiff did not allege that the purchased formula was contaminated or that it caused any injury to her or her son; simply, “Jasper has not adequately alleged a breach of warranty because she has not adequately alleged that her Similac was defective.” Id . The court, without much further analysis, dismissed the plaintiff's unjust enrichment claims because she “ha[d] not adequately alleged that Abbott unjustly benefitted from her Similac purchase or that the Similac that she purchased was defective.” Id.

In a similar vein, a district court in California granted a defendant's motion to dismiss with prejudice, which was affirmed by the Ninth Circuit where the plaintiffs brought a putative class action alleging that Apple, Inc. breached its warranty with respect to its iPods. Birdsong v. Apple Inc., No. 06-02280, 2008 U.S. Dist. LEXIS 112106 (N.D. Cal. June 13, 2008), aff'd, 590 F.3d 955 (9th Cir. 2009). The plaintiffs were purchasers of iPods who did not claim any actual hearing loss, but, rather, alleged that the volumes that iPods were capable of reaching created an unreasonable risk of hearing loss.

The court concluded that the plaintiffs' claims were “inherent[ly] implausib[le],” specifically relying on the Twombly standard of plausibility, reasoning that “Plaintiffs' legal conclusion that iPods create an unreasonable risk of hearing loss to users is insufficient. Twombly, 127 S. Ct. at 1965. Rather, a plausible set of facts must either be alleged or be apparent to the Court upon which plaintiffs could prevail.” Id. at *9. Simply put, the users could control the volume of their iPods, and, therefore, could avoid any harmful use.

Relaxed Requirements

The plaintiffs in the foregoing cases failed to allege plausibly that their purchased products not only caused an injury, but also that there was any defect in them at all, rendering their claims susceptible to dismissal under Twombly and Iqbal. Where, however, an inherent defect was alleged and where signs of that defect had begun to show, at least one court relaxed the injury requirement. Baker v. Castle & Cooke Homes Haw., Inc., No. 11-00616, 2012 U.S. Dist. LEXIS 57954 (D. Haw. Apr. 25, 2012), involved a putative class action filed by homeowners against a home developer and manufacturers of brass fittings, alleging that their home plumbing systems included brass fittings susceptible to corrosion and likely to cause leaks resulting in damage to their homes and exposure to dangerous toxins that would cause physical injury. In support of their argument concerning standing, the plaintiffs provided a declaration of an engineer stating that the fittings “will corrode until they catastrophically fail” and that the corrosion “cannot be stopped.” The court first concluded that the plaintiffs had Article III standing-in-fact on the basis of the foregoing threat of injury and the alleged economic loss, namely, that they had to replace their pipe systems and that the value of their homes had decreased because their homes violated the Honolulu Plumbing Code.

The manufacturer moved to dismiss under Rule 12(b)(6) on the ground that the plaintiffs failed to allege injury, and they conceded at the hearing that none of the fittings in their homes had failed to date. The court granted the motion to dismiss as to the product liability, negligence, and strict liability claims on the ground that the plaintiffs failed to allege any injury. The court denied, however, the motion to dismiss the breach of the implied warranty of merchantability claim, finding that the defendant provided no authority establishing that damage to the product itself cannot constitute “injury” for the purpose of a breach of the implied warranty of merchantability.

Although the malfunction of the allegedly defective product had yet to manifest itself, the allegation that the product was inherently defective was sufficient: “Plaintiffs' alleged injury can therefore be characterized as the failure to receive the benefit of their bargain; that is, Plaintiffs allegedly received a defective product that prematurely corrodes and violates the Honolulu Plumbing Code.” Id. at *47.

The court found support in other decisions that permitted warranty claims involving products containing inherent defects that are “substantially certain to result in malfunction during the useful life of the product.” The court also emphasized that another Eighth Circuit decision involving brass fittings manufactured by the defendant held that the homeowners alleged sufficient injury by alleging that the brass fittings, at the time of installation, had a defect that violated Minnesota warranty law. The court in the Eighth Circuit decision had also distinguished O'Neil because there, the plaintiffs alleged only that the cribs might develop a dangerous defect, whereas corrosion in the fittings was already evident. Accordingly, a sign of the defect's manifestation with a declaration that the product will fail and the product's violation of a code was sufficient to satisfy the injury requirement for a breach of warranty claim.

Another case denying defendants' motion to dismiss represents an example of a case where, although there was no physical injury, plaintiffs paid for a product that was effectively unusable. In Hydroxycut Mktg. & Sales Practices Litig. v. Iovate Health Scis. Grp. , 801 F. Supp. 2d 993 (S.D. Cal. 2011), the plaintiffs brought a class action based on their purchase of Hydroxycut, a weight-loss supplement, alleging numerous causes of action, including breach of implied warranty. The plaintiffs alleged that Federal Trade Commission rules required that the manufacturer have the level of proof claimed ' clinical proof ' at the time the claims were made, but the manufacturer did not. The manufacturer's own director of research until 2002 allegedly admitted that the majority of products it put on the shelves did not have pure clinical research to support them. Further, there were reports of doctors treating patients with health problems after taking Hydroxycut.

The FDA issued a press release warning consumers to stop using Hydroxycut immediately. The plaintiffs claimed that the product, although marketed as safe and effective, was neither, and they lost money and property, including the purchase price for the products and costs of health tests.

Even though the plaintiffs did not allege that they suffered adverse health effects, the court rejected the defendants' characterization of the plaintiffs' claims as no-injury claims: “Plaintiffs allege that the product they received was defective. Plaintiffs allege that instead of receiving the advertised safe and 'clinically proven' effective Hydroxycut products, they received products that were ineffective and unsafe when used as directed.” Denying defendants' motion to dismiss, the court distinguished this case from O'Neil in that:

[u]nlike ' the plaintiffs in O'Neil , who paid for and received a working crib, Plaintiffs in this case did not get what they paid for. According to the [complaint], Plaintiffs received a product with no proven weight-loss benefit (indeed, in an Iovate study, the subjects using Hydroxycut lost less weight than the placebo group) and the potential for serious harm. Thus, Plaintiffs did not get the benefit of their bargain and suffered economic injury.

Baker and Hydroxycut are similar in many ways, but not identical in their facts or reasoning. Baker was based on the conclusion that premature corrosion of the fittings resulted in a violation of the Honolulu Plumbing Code and constituted a failure of the fittings, and thereby caused damage to the homes. In Hydroxycut , however, the product did not do what it was supposed to do from the time of purchase, and therefore, did not serve its intended purpose, and the purchase price was a logical measure of damages. The inability of the product ever to serve its intended purpose constituted actual failure of the product.

Recommendations

In evaluating the likely success of a motion to dismiss in no-injury cases, you should consider the theories of liability, the specific allegations of defect, the nature of the injury claimed (including premature failure), the representations relating to the product, and the extent to which the plaintiff can present a plausible claim that she did not receive the benefit of the bargain.

In the wake of Twombly and Iqbal, no-injury complaints have been met with heightened scrutiny. Most cases have been dismissed. As Baker and Hydroxycut demonstrate, however, premature failure or complete ineffectiveness of the product may be enough to overcome a motion to dismiss. Without such facts, however, most courts deal with these cases the way that your first-year torts professor explained: No injury means no recovery.

James Rotondo, a member of this newsletter's Board of Editors, represents a broad range of corporate clients in product liability, negligence, insurance coverage, and commercial litigation matters at Day Pitney LLP in its Hartford, CT, office. Kaitlin Canty is an associate at the firm practicing in the areas of product liability and negligence law.