Paul Riva and Danielle Ardagna v Pepsico Inc. (2015) H&FLR 2015-30

United States District Court (Northern District of California)

4 March 2015

Coram: Chen J

Appearing for the Plaintiffs: Roy Arie Katriel (of The Katriel Law Firm)
Appearing for the Defendant: Christopher Chorba (of Gibson, Dunn & Crutcher LLP)

Catchwords: California – product liability – soft drink – carcinogen – dosage – pleadings

Facts: The plaintiffs  consumed “Diet Pepsi” and “Pepsi One” (drinks).  Mr Riva asserted that he consumed Pepsi One two to three times a week; Ms Ardagna that she drank nearly 30 cans of Diet Pepsi a week.  They alleged that each can of these drinks contained 43.5 and 30.5 micrograms respectively of 4-methylimidazole (4-MeI).  A report from the National Toxicology Program found that high doses of 4-MeI resulted in increased levels of bronchioloalveolar cancer in mice.

The plaintiffs brought proceedings against Pepsico alleging that its products had caused them to experience an increased risk of cancer.  They alleged negligence and also strict liability based on defective design and on failure to warn.  They sought the establishment of a fund from which people who consumed the drinks between 2010 and 2013 could be paid for the costs of medical monitoring of potential bronchioloalveolar cancer. The defendant sought to dismiss the proceedings for failure to state a claim.

Held: Dismissing the plaintiffs’ claim, that –

1. The plaintiffs had failed to establish constitutional standing to sue.  To establish standing it was necessary to show that (a) there was an actual (or imminent), concrete and particularizable invasion of a legally protected interest; (b) that the injury was fairly traceable to the defendant’s actions; and (c) that it was likely that the injury would be redressed by a favourable decision. While an increased risk of injury can establish the necessary invasion of an interest, the increased risk must be credible and not simply a matter of conjecture.  In this case the plaintiffs had not shown that their increased cancer risk was credible and substantial, but merely speculative.

Central Delta Water Agency v United States, 306 F.3d 938 (9th Cir. 2002), followed.

2. In a case of toxic exposure, the cost of periodic future medical examinations intended to encourage early detection and treatment of the disease caused by the exposure (“medical monitoring”) can be claimed.  The need for future monitoring must be a reasonably certain consequence of the exposure.  In considering whether the monitoring is reasonable and necessary, a court must consider five factors –

• the significance and extent of the exposure suffered by the plaintiff;
• the chemicals’ toxicity;
• the relative increase in the plaintiff’s risk of developing the disease due to the exposure, compared with the risk the plaintiff would have had without exposure or the risk of the public at large;
• the seriousness of the potential disease; and
• the medical value of early detection and diagnosis.

In the present case, the plaintiffs had not sufficiently alleged a causal connection between drinks and an increased risk of developing the cancer given the significance and extent of their exposure, nor sufficiently pleaded their injury or the toxicity of 4-MeI, nor shown the necessary relative increase in risk.

Potter v Firestone Tire & Rubber Co, 6 Cal.4th 965 (1993), followed.

Judgment

The Court’s judgment is available here.