Belton et al v. Combe Incorporated et al

Filing 18

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that defendants' motion to dismiss is GRANTED, and plaintiff's complaint is dismissed for failure to state a claim. Signed by District Judge Catherine D. Perry on 11/14/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BYRON BELTON, et al.,
Plaintiffs,
vs.
COMBE INCORPORATED, et al.,
Defendants.

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) Case No. 4:16 CV 220 CDP
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MEMORANDUM AND ORDER
Plaintiffs allege that they were exposed to the chemical p-Phenylenediamine
(PPD) during their use of defendants’1 “Just for Men” hair coloring product. As a
result of the exposure, plaintiffs assert they may have developed a sensitivity to
PPD. Plaintiffs allege defendants’ conduct2 was tortious and have brought a claim
for “medical monitoring,” asking that defendants be required to create a monetary
fund to compensate plaintiffs for expenses associated with testing to determine
whether plaintiffs have developed a PPD allergy. Before me now is defendants’
motion to dismiss plaintiffs’ claim. After careful consideration, I conclude that
although plaintiffs have pled facts sufficient to demonstrate Article III standing,

1

Defendants are Combe Incorporated; Combe Products, Inc.; Combe Laboratories, Inc.; and Combe International
Ltd.
2
Plaintiffs allege defendants were involved in the design, development, manufacturing, testing, packaging,
promoting, marketing, distribution, labeling, and sale of the Just for Men hair coloring product. The complaint does
not pinpoint which of these actions plaintiff is claiming were tortious.

medical monitoring is not an independent cause of action under Missouri law, and
plaintiffs’ complaint will be dismissed for failure to state a claim.
Article III Standing
Dismissal under Rule 12(b)(1) of the Federal Rules of Civil Procedure is
appropriate if the party asserting jurisdiction has failed to satisfy a threshold
jurisdictional requirement. See Herden v. United States, 726 F.3d 1042, 1046 (8th
Cir. 2013). The court has no subject matter jurisdiction over a case in which the
litigant lacks Article III standing. Iowa League of Cities v. E.P.A., 711 F.3d 844,
869 (8th Cir. 2013). The plaintiff bears the burden of establishing standing. Susan
B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014) (party invoking federal
jurisdiction has burden of proving standing).3 “To establish Article III standing, a
plaintiff must show (1) an injury in fact, (2) a sufficient causal connection between
the injury and the conduct complained of, and (3) a likelihood that the injury will
be redressed by a favorable decision.” Id. at 2341 (quotation marks and citation
omitted). When determining whether to dismiss “a complaint for lack of
standing,” a court is to “constru[e] the allegations of the complaint, and the
reasonable inferences drawn therefrom, most favorably to the plaintiff.” Glickert

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More specifically,“[t]he party seeking judicial review bears the burden of persuasion and must
support each element ‘with the manner and degree of evidence required at the successive stages
of litigation.’” Iowa League of Cities, 711 F.3d at 869.

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v. Loop Trolley Trasnp. Developmen Dist., 792 F.3d 876, 880 (8th Cir.
2015)(quotation marks and citations omitted).
The dispute here concerns the injury-in-fact requirement of Article III
standing. Defendants argue that plaintiffs have not suffered any injury.
Specifically, plaintiffs admit they have not suffered an adverse physical reaction
from the Just for Men product and cannot claim an economic loss related to their
purchase because they successfully used it. Defendants also assert that plaintiffs
are not at risk of having an adverse reaction at all in the future unless they are
further exposed to PPD, and a hypothetical future exposure and possible future
injury are not sufficient for standing.
In their response to defendants’ motion, plaintiffs argue they have suffered
the “concrete injury” of “potential hypersensitivity to PPD.” (ECF# 12, p. 6). In
their complaint, plaintiffs claim that although they suffered no adverse reactions
during previous uses of Just for Men, their exposure to the product has “subjected
them to a significant risk of sensitization to PPD and other related chemicals and
other related illnesses in the future.” (ECF #1, ¶ 123 ). Plaintiffs claim that they
will require ongoing diagnostic testing to determine whether their exposure to Just
for Men has caused PPD sensitization. (Id. at ¶ 126).
“An injury sufficient to satisfy Article III must be concrete and
particularized and actual or imminent, not conjectural or hypothetical.” Driehaus,
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134 S. Ct. at 2341 (quotation marks and citation omitted). However, courts that
have addressed claims seeking medical monitoring damages have found that a
purported increased risk of harm is sufficient to satisfy the injury requirement for
Article III standing. See, e.g., Sutton v. St. Jude Medical S.C., Inc., 419 F.3d 568
(6th Cir. 2005); Riva v. Pepsico, Inc., 82 F. Supp. 3d 1045, 1052 (N.D. Cal. 2015);
Bouldry v. C.R. Bard, Inc., 909 F. Supp. 2d 1371, 1375 (S.D. Fla. 2012). Here,
plaintiffs claim that defendants’ product has caused them to have an increased risk
of hypersensitivity to PPD, and they have alleged specific facts to support their
allegation that that hypersensitivity to PPD can be a dangerous medical condition.
For purposes of evaluating Article III injury-in-fact sufficiency at the pleading
stage, I conclude that this is enough. See Hutterville Hutterian Brethren, Inc. v.
Sveen, 776 F.3d 547, 553 (8th Cir. 2015) (where a “case has progressed only to the
pleading stage, general factual allegations of injury resulting from the defendant's
conduct may suffice” for purposes of Article III standing)(quotation marks and
citations omitted).
Failure to State a Claim
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint. When considering a 12(b)(6) motion, the court
assumes the factual allegations of a complaint are true and construes them in favor
of the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
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Rule 8(a)(2), Fed. R. Civ. P., provides that a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” In
Bell Atlantic Corp. v. Twombly, the Supreme Court clarified that Rule 8(a)(2)
requires complaints to contain “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” 550 U.S. 544, 555 (2007); accord
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Specifically, to survive a motion
to dismiss, a complaint must contain enough factual allegations, accepted as true,
to state a claim for relief “that is plausible on its face.” Twombly, 550 U.S. at 570.
The issue in considering such a motion is not whether the plaintiff will ultimately
prevail, but whether the plaintiff is entitled to present evidence in support of the
claim. See Neitzke, 490 U.S. at 327.
Defendants argue that plaintiffs’ complaint must be dismissed because their
only claim is for medical monitoring and Missouri courts do not recognize standalone claims of medical monitoring. Plaintiffs have responded that Missouri courts
do recognize stand-alone medical monitoring claims. Both sides rely on the same
Missouri Supreme Court case to support their argument. See Meyer ex. rel. Coplin,
220 S.W.3d 712 (Mo. 2007). In Meyer, the plaintiff asserted she was a member of
a class of children who had been exposed to toxic emissions from a lead smelter.
The Missouri Supreme Court noted that plaintiff “alleged claims of negligence,
strict liability, private nuisance, and trespass as theories of liability and sought
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compensatory damages to establish a medical monitoring program for class
members.” Id. at 714. In considering the parameters of a medical monitoring
claim, the court explicitly opined that recognizing “the need for future medical
monitoring does not create a new tort.” Id. at 717. Rather, medical monitoring is
“a compensable item of damage when liability is established under traditional tort
theories of recovery.” Id. Accordingly, here, plaintiffs cannot stand on a claim of
medical monitoring alone. They are required to properly plead a traditional tort
cause of action and seek medical monitoring as a remedy. Plaintiffs have
accurately argued that their complaint is rife with allegations of tortious conduct
committed by defendants. However, plaintiffs’ complaint still fails to indicate
what theories of liability they are asserting. The complaint makes no attempt to
allege the elements of any recognizable tort. Without this rudimentary component,
it would be nearly impossible for defendant to answer the complaint, conduct
efficient discovery, or analyze the merits of plaintiffs’ lawsuit. A pleading
“must… provide the defendant with fair notice of what the plaintiff’s claim is and
the grounds upon which it rests.” Eckert v. Titan Tire Corp., 514 F.3d 801, 806
(8th Cir. 2008) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs’
complaint here fails to do so.
In the last sentence of their opposition to the motion to dismiss, plaintiffs
asked that they be given leave to file an amended complaint should their existing
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pleading be found deficient. “Although leave to amend shall be freely given when
justice so requires, plaintiffs do not have an absolute or automatic right to amend.”
In re 2007 Novastar Financial Inc., Securities Litigation, 579 F.3d 878, 884 (8th
Cir. 2009). In order to preserve the right to amend the complaint, a party must
submit the proposed amendment along with its motion to amend. Id. (quoting
Clayton v. White Hall Sch. Dist., 778 F.2d 457, 460 (8th Cir. 1985). Here,
plaintiffs have not filed a motion to amend, submitted a proposed amended
complaint, or given any explanation as to how they would amend their pleading to
save their claim. In light of this, I will not provide plaintiffs leave to file an
amended complaint. See Novastar, 579 F.3d at 885 (“the [court] is not required to
engage in a guessing game as a result of the plaintiff’s failure to specify proposed
new allegations”) (quoting Meehan v. United Consumers Club Franchising Corp.,
312 F.3d 909, 914 (8th Cir. 2002)).
Accordingly,
IT IS HEREBY ORDERED that defendants’ motion to dismiss is
GRANTED, and plaintiff’s complaint is dismissed for failure to state a claim.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 14th day of November, 2016.
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