Neutrogena, Aveeno Sunscreen Recall Lawsuits Consolidated in Florida Federal Court For Pretrial Proceedings

With a growing number of sunscreen recall lawsuits being filed against Johnson & Johnson over cancer-causing benzene in Neutrogena and Aveeno spray products, consolidated pretrial proceedings have been established in the federal court system to centralize the claims before one judge for coordinated management.

The litigation emerged after Johnson & Johnson an Aveeno and Neutrogena sunscreen recall on July 14, indicating that routine sample testing identified the presence of benzene in the aerosol spray products. Benzene is chemical classified as a human carcinogen, which may increase the risk of leukemia, lymphoma and other cancers, depending on the extent of exposure.

Lawsuits filed in U.S. District Courts nationwide raise similar allegations, indicating that there is no safe level of benzene in sunscreen, and that Johnson & Johnson failed to warn about the health risks associated with their products.

A motion was filed to centralize and consolidate the Neutrogena and Aveeno lawsuits on July 29, asking the U.S. Judicial Panel on Multidistrict Litigation (JPML) to transfer all cases to one U.S. District Judge in the District of New Jersey for pretrial proceedings, to avoid duplicative discovery and conflicting rulings from different judges as the number of cases grows.

Following oral arguments held on September 30, the JPML issued a transfer order (PDF) on October 8, ordering all claims pending in federal courts nationwide will be transferred to the U.S. District Court for the Southern District of Florida, under Judge Anuraag Singhal.

Initially, the MDL will involve at least eight sunscreen class action lawsuits, with another nine potential related claims awaiting consideration. However, if individual personal injury lawsuits are filed by users diagnosed with cancer from the sunscreen, the panel indicates that it will consider at a later date whether to include those as part of the MDL. Currently, at least one of the nine tag-along lawsuits is a personal injury complaint.

“At oral argument, the parties took varying positions on whether the MDL should include personal injury actions alongside the consumer class actions,” the panel wrote. “Based on the parties’ arguments, there appears to be some merit to the view that this litigation can proceed more efficiently by allowing these consumer class cases to progress separately from the lone personal injury action.”

Class Action Lawsuits Pursue Damages for Recalled Sunscreen Health Risks

Concerns about the safety of Johnson & Johnson sunscreen emerged several months before the company recalled Neutrogena and Aveeno spray products, when independent testing by the pharmacy Valisure found dangerously high levels of benzene in nearly 80 sunscreen products.

Benzene is an industrial chemical that has been associated with the development of several fatal forms of cancer, leukemia and other conditions, such as AML, Chronic Myelogenous Leukemia (CML), Acute Lymphocytic Leukemia (ALL), Chronic Lymphocytic Leukemia (CLL), Hairy Cell Leukemia (HCL), Non-Hodgkin’s Lymphoma, Multiple Myeloma, Myelodysplastic Syndrome (MDL), Myelofibrosis and Myeloid Metaplasia, Aplastic Anemia and Thrombocytopenic Purpura.

Due to the potential health risks, the FDA indicates benzene should not be included in drug or consumer products, if avoidable. However, if benzene is not avoidable, it should be restricted to 2 parts per million (ppm), FDA regulations state. However, testing suggests that levels of benzene in the Neutrogena and Aveeno sunscreen may substantially exceed the permissible levels, and since it is not found in all sunscreen products, critics point out that it clearly is an avoidable chemical.

Long-term side effects of benzene exposure have been proven to cause anemia, which is a condition that develops when your blood lacks enough healthy red blood cells or hemoglobin. Essentially, the chemical causes bone marrow not to produce enough red blood cells, which can damage an individual’s immune system. Federal regulators have determined long-term exposure to benzene can significantly impact blood cells, to the extent it causes cancer such as leukemia, a cancer of the blood-forming organs.

According to one recently filed class action complaint (PDF), plaintiffs indicate they would never have agreed to purchase Aveeno or Neutrogena sunscreen if the presence of benzene and the associated health risks had been disclosed.

“Nowhere on the Products’ package labeling or on Defendants’ websites or other marketing materials did Defendants disclose to Plaintiff and members of the Class that the Products contained Benzene,” the lawsuit states. “Accordingly, Defendants misled and deceived the public, and placed their customers in harm’s way, all for the sake of increased profits.”

In complex product liability litigation, where a large number of claims are filed throughout the federal court system by individuals who suffered similar injuries as a result of the same product, it is common for the federal court system to centralize the litigation for pretrial proceedings. However, if settlements are not reached during discovery or following a series of early “bellwether” trials, each claim may later be remanded back to the U.S. District Court where it was originally filed to go before a jury.