From the Wires
Whatley Drake & Kallas LLC Announces Court Rules That Baby Bottle Manufacturers That Sold Products Containing BPA Can Be Held Accountable to Consumers
Companies had asked Court to dismiss consumers' legal claims based on the FDA's position regarding BPA
By: PR Newswire
Nov. 10, 2009 04:16 PM
NEW YORK, Nov. 10 /PRNewswire/ -- Whatley Drake & Kallas, LLC announces that a federal district court has held that manufacturers of baby bottles, "sippy" cups, and other similar products may not escape liability to consumers who purchased their products that contained Bisphenol-A ("BPA"), merely because the Food and Drug Administration ("FDA") had approved of the use of BPA in these products.
Judge Ortrie D. Smith of the U.S. District Court for the Western District of Missouri, who is overseeing this multidistrict litigation, denied the request of Evenflo, Gerber, Nalge Nunc, Avent America, Philips Electronics, RC2, Playtex, and Handi-Craft to dismiss the class action complaints against them on the grounds of primary jurisdiction and federal preemption based on their argument that the Court's consideration of plaintiffs' claims invades the province of the FDA. The Court held that the FDA cannot resolve the ultimate issues in these cases regarding whether these defendants failed to disclose material facts to plaintiffs regarding the presence of BPA in their products and whether the defendants breached the implied warranty of merchantability through the sale of products containing BPA.
The Court also rejected the companies' arguments that the complaints should be dismissed because they had no duty to disclose information about BPA to consumers. The Court held that "a jury could conclude information about the safety risks associated with allowing infants and toddlers to put cups, bottles and similar products in their mouths is material to a consumer's buying decision."
"Overall we are pleased with the Court's ruling and believe it advances the rights of consumers in connection with the products they purchase," said Edith M. Kallas, of Whatley Drake & Kallas, LLC, the law firm that serves as co-lead counsel for the plaintiffs and the Class along with the law firm of Walters Bender Strohbehn & Vaughan, PC.
Plaintiffs filed these lawsuits on behalf of the millions of children and families who purchased polycarbonate bottles and containers that contained BPA, a dangerous chemical which poses serious risks to an individual's health due to the fact that it leaches into food and beverages in the course of normal, everyday use. The complaints allege that these companies failed to disclose or adequately disclose to consumers that their products contained BPA, that the BPA in its products can leach into food, and that the leaching process is accelerated by heat. The Court's decision allows injured consumers to proceed with their claims against bottle manufacturers for breach of the implied warranty of merchantability, fraudulent and negligent omissions of material fact, and unjust enrichment.
About WDK: Whatley, Drake & Kallas, LLC is a national law firm with offices in Birmingham, New York City, and Boston. WDK practices extensively in the areas of complex class action and derivative litigation, including securities, ERISA, 401k, healthcare, insurance, antitrust, mass tort and consumer litigation. WDK also remains devoted to its longstanding representation of unions and workers throughout the United States and represents several Taft-Hartley plans.
CONTACT: Edith M. Kallas (212-447-7070)
SOURCE Whatley, Drake & Kallas, LLC
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