Plaintiffs claim wipes do not break down and clog the sewer systems
By Barbara L. Jones
BridgeTower Media Newswires
MINNEAPOLIS - A lawsuit by several entities against the manufacturers of "flushable" wipes got the green light from U.S. District Court Judge John Tunheim who ruled that governments could continue with their lawsuit against Proctor & Gamble Co., Kimberly-Clark Corporation and others who manufacture the wipes.
The plaintiffs have a variety of warranty and consumer-protection claims alleging the wipes do not break down and then clog the sewer systems. The crux of the complaint, said Tunheim, is that the manufacturers represented that the wipes were literally flushable when they aren't.
Tunheim allowed most of the claims to stand although he said that the complaint "attempts to shoehorn a novel set of facts into a rather traditional set of claims." Tunheim struck what he called "not a true Declaratory Judgment Act claim" and said that plaintiffs did not plead facts supporting a breach of warranty for a particular purpose. The judge also struck some claims against Tufco Technologies based on Wisconsin law.
Now the parties move on to the messy business of discovery.
Money down the drain
Plaintiffs say they have incurred expenses associated with the removal of flushable wipes from lift stations and face the continuing, ongoing threat of future harm from the defendants' continued sale and promotion of wipes as flushable and sewer and septic safe.
When these wipes gum up the works, they have to be removed by hand from the sewer screens. All over the world, sewer authorities have spent thousands, or even millions removing these wipes from their sewers, the complaint says - money that is nearly literally flushed down the toilet.
The state law warranty claims are that defendants created an express warranty when their label argued that the wipes are "flushable," "degradable" and "sewer and septic system safe." The implied warranty of merchantability was breached when the promises made on the containers were not met, plaintiffs allege.
Plaintiff's fraud-based allegations state the defendants "knowingly misrepresented" the true quality of flushable wipes and in that way induced consumers to place the wipes into the sewer system. The defendants also allegedly intentionally published false advertisements.
Standing close to the mark
The judge said that the defendants' argument that the plaintiffs' complaint is not specific enough was "far from the mark." Tunheim said that the plaintiffs repeatedly alleged injuries from the entire product line of not-actually-flushable wipes.
Tunheim also found that plaintiffs had sufficient standing even if the wipes are not the sole cause of their injuries.
Parties should not confuse substantive tort law's stringent proximate cause standard with the less-stringent causation element in standing doctrine, Tunheim cautioned.
Facts sufficiently unwound and pleaded
Tunheim also turned back defendants' arguments for dismissal based on plaintiffs' pleadings. He said that the plaintiffs could have been more specific, but were hampered by the "practical difficulty of unwinding sewer system clogs to identify which manufacturer was responsible for how much of what clog. Rule 8 does not require that much."
He also said that the fraud claims were sufficiently pleaded under Rule 9. He noted that the complaint had photographs of wipes in packaging stating they were flushable as well as allegations that the defendants made false statements about flushability.
The breach of warranty claims were also sufficiently pleaded, he said, because the Minnesota Supreme Court has said that where a third-party suffers property damage from a product, that person may be a third-party beneficiary even if the party never used, purchased, or otherwise acquired the products.
The defendants' attempt to have the express warranty claims dismissed was defeated because when a seller makes affirmations of fact (flushability) that are regarded as part of the description of the goods, no particular reliance on such statements need be shown in order to weave the statements into the fabric of the agreement, Tunheim continued.
For an implied warranty of merchantability claim the seller must promise that the goods are fit for the ordinary purposes for which such goods are used and will conform to the promises or affirmations of fact made on the container or label. Plaintiffs passed muster, Tunheim said. "A reasonable person would undoubtedly expect that a product represented to be safe for sewer systems actually be safe for sewer systems - not just for the consumer's own piping."
Tunheim also allowed plaintiffs' claims under consumer protection laws and the Minnesota Deceptive Trade Practices Act.
Access to clogs
The next step in the lawsuit City of Wyoming, et al. v. Procter & Gamble, et al., is the peculiar discovery needs posed by the evidence, i.e., sewage. According to an order issued by Magistrate Judge Tony Leung, the defendants are concerned that they do not have equal access to the evidence as plaintiffs. "Defendants will suffer irreparable harm in their ability to defend against Plaintiffs' claims if they are only allowed access to the clogs selected by Plaintiffs," Leung wrote.
He ordered that "Plaintiffs are required to collect all clogs during regular and emergency maintenance for 180 days. Collection of clogs during regular maintenance will be dependent upon the frequency of such maintenance. For regular maintenance occurring more than once per week, Plaintiffs shall collect all clogs removed as part of such maintenance every third day. For regular maintenance occurring at a weekly or longer interval, Plaintiffs shall collect all clogs removed at each instance of regular maintenance."
He also ordered that plaintiffs' employees attach "GoPro-type" cameras to their heads or helmets to record the removal process and that the parties split the expense for the cameras. He ordered the parties to determine how many cameras are necessary.
Published: Mon, Oct 24, 2016
