After Bayer voluntarily recalled certain anti-fungal consumer products that contained benzene due to a production error , consumers who had purchased the affected products filed a class action. They alleged three forms of harm: (1) that they were deprived of the benefit of their bargain because they contracted for
safe products that did not contain benzene, but they got benzene-contaminated products that were unusable and worthless; (2) they “were forced to waste portions of the Products or to spend additional money to purchase replacement medications that they would not have spent but for the Products being contaminated”; and (3) that their exposure to benzene increased their future risk of cancer, requiring significant monitoring.
The district court rejected these theories and dismissed the complaint for lack of standing. Today, the Third Circuit reversed and remanded, as the plaintiffs had plausibly alleged the products they received were less valuable than uncontaminated products, rejecting Bayer’s reliance on Third Circuit precedent rejecting a benefit-of-the-bargain theory. The court found the district court had imposed to high a bar in its assessment of lab testing results the Plaintiffs had submitted, and remanded for the district court to address additional facts that had emerged on appeal.
