Morales v. Kimberly-Clark Corporation

Background

Heidy Morales sued Kimberly-Clark Corporation individually, as parent and guardian of J.F., and on behalf of a proposed class. She alleged that Huggies diapers caused her infant son to develop a rash that lasted four days and required a doctor’s visit and prescription cream. Morales claimed that the diapers contained Ahcovel, an additive that can irritate skin, and that Kimberly-Clark failed to ensure safe levels or warn consumers about the alleged risk.

The First Amended Complaint asserted claims under New York General Business Law §§ 349 and 350, breach of the implied warranty of merchantability, strict products liability, negligence, and fraudulent misrepresentation or concealment. Kimberly-Clark moved to dismiss under Federal Rules of Civil Procedure 9(b), 12(b)(1), and 12(b)(6).

Standing to Seek Injunctive Relief

The court rejected Kimberly-Clark’s argument that Morales lacked standing to seek an injunction. Morales alleged that she would use Huggies again if the alleged defects were identified and eliminated. The court held that, at least at the pleading stage, this allegation was enough to establish standing to seek injunctive relief under New York General Business Law § 349.

Consumer-Protection Claims

The court nevertheless dismissed the claims under New York General Business Law §§ 349 and 350. Those claims were based on the alleged failure to warn consumers about the risk of severe diaper rashes. The court held that the complaint did not plausibly allege that Kimberly-Clark knew about the alleged defect or possessed material information that it failed to disclose.

The court found that Morales’s allegations about Kimberly-Clark’s inspection and testing of the equipment applying Ahcovel were conclusory and were partly undermined by an exhibit to the complaint. The online customer complaints and Kimberly-Clark’s responses to some complaints did not, standing alone, support an inference that Kimberly-Clark knew about the alleged defect or failed to disclose it. The court did not accept Kimberly-Clark’s argument that severe diaper rashes were necessarily an ordinary fact of life, but it still found the allegations insufficient to state a plausible consumer-deception claim.

Product-Liability Claims

The court dismissed the manufacturing-defect claims. Morales alleged that her son developed a rash after using one diaper, but she did not provide sufficient nonconclusory facts showing that the diaper differed from identical units or excluding other possible causes of the rash.

The court also dismissed the failure-to-warn claim. Because that claim relied on essentially the same allegations as the consumer-protection claims, Morales had not adequately alleged that Kimberly-Clark had actual or constructive notice of a defect in the diaper or that a failure to warn proximately caused the injury.

Implied Warranty

The court dismissed the implied-warranty claim concerning physical injuries because Morales had not plausibly alleged a manufacturing defect or failure to warn. That dismissal was without prejudice. Morales conceded that she could not maintain the implied-warranty claim for economic harm because she lacked contractual privity with Kimberly-Clark. The court therefore dismissed that portion of the claim with prejudice.

Fraud Claims

The court dismissed the fraudulent misrepresentation and concealment claims. Applying the heightened pleading requirement for fraud, the court found that the complaint did not provide nonconclusory facts supporting a strong inference that Kimberly-Clark intended to deceive consumers. The alleged awareness of Ahcovel’s potential irritant effects and the online complaints did not establish that Kimberly-Clark knew Ahcovel was improperly or excessively applied in Huggies or intended to conceal a defect.

Disposition

Judge Nelson S. Roman granted Kimberly-Clark’s motion to dismiss the First Amended Class Action Complaint. The court dismissed the claims without prejudice except for the implied-warranty claim concerning economic harm, which it dismissed with prejudice. The court granted Morales leave to file a Second Amended Class Action Complaint addressing the claims not dismissed with prejudice, with a filing deadline of July 27, 2020. The court stated that failure to amend by that deadline, absent good cause, would result in dismissal of the claims with prejudice.