In re JUUL Labs, Inc., Marketing Sales Practice and Products Liability Litigation

IN RE JUUL LABS, INC., MARKETING SALES PRACTICE AND PRODUCTS LIABILITY LITIGATION

No. 19-md-02913-WHO

United States District Court, N.D. California

July 22, 2021

ORDER ON MOTIONS TO DISMISS PERSONAL INJURY BELLWETHER COMPLAINTS

RE: DKT. NOS. 1500, 1501, 1502, 1503, 1799, 1933 1938

William H. Orrick, United States District Judge

Three sets of defendants - the Altria entities, ^[1] the Founder Defendants, ^[2] and the Other Director Defendants (ODDs)^[3] - challenge claims asserted by each of the eighteen bellwether personal injury plaintiffs.^[4] While the allegations regarding residence and use are particular to each plaintiff, the substantive allegations regarding each defendant's conduct in the Amended Master Complaint (Personal Injury) and repeated in each of the personal injury bellwether complaints at issue here are materially consistent with those alleged in the Second Amended Consolidated Class Action Complaint (“SACAC”) and the Second Amended Public Entity Complaints (PECs). Those substantive and material allegations have been identified and discussed in depth in two of my prior Orders and will not be repeated here. See In re JUUL Labs, Inc., Mktg., Sales Practices, and Products Liab Litig., 497 F.Supp.3d 552 (N.D. Cal. 2020) (JUUL I); In re JUUL Labs, Inc., Mktg., Sales Practices, and Products Liab. Litig., 19-MD-02913-WHO, 2021 WL 1391540 (N.D. Cal. Apr. 13, 2021) (JUUL II).^[5]

Not surprisingly, my rulings on the pending motions to dismiss are consistent with those prior orders. While the issues I address below are too numerous to summarize neatly, I am dismissing with prejudice the strict products liability claims against the Founder Defendants and ODDs, as well as some state law claims as required by particular state statutes. The other issues raised in the motions are DENIED.

THE PLAINTIFFS AND THEIR CLAIMS

The only significant differences between the Amended Master Complaint (Personal Injury) allegations and the bellwether complaints are those specific to each bellwether plaintiff.

Plaintiff Kerrigan Bagley, Member No. 20-cv-03770, is currently 20 years old and is deployed at a joint task force base at Guantánamo Bay, Cuba. Bagley began using JUUL e-cigarettes in 2015 when he was 15 years old. From his birth until his deployment in July 2020, he resided with his family in Utah. Dkt. No. 1419-2 at ECF pg. 1621 et seq.

Plaintiff Lucas Willis Barnes, Member No. 20-cv-06599, is a resident of Arcadia, Florida. Barnes first used JUUL in or around April 2017, when he was 14 years old. Dkt. No. 1419-2 at ECF pg. 2618 et seq.

Plaintiff Robin Bain is the mother and guardian of B.B., Member Case. No. 20-cv-03677. B.B. is currently 15 years old and resides in McMinnville, Tennessee. B.B. began using JUUL e-cigarettes in March of 2018 when she was 12 years old. Dkt. No. 1419-2 at ECF pg. 5189 et seq.

Plaintiff Nicole Dramis, Member No. 18-cv-02499, is a resident of Miller Place, New York and sues as the mother of minor J.D. J.D. first used JUUL in or around January 2017, when he was 13 years old. Dkt. No. 1419-2 at ECF pg. 2 et seq.

Plaintiff Mason Edwards, Member No. 20-cv-01866, is currently 25 years old and resides in Lawrenceville, Georgia. Edwards began using JUUL e-cigarettes in or about November 2017 when he was 22 years old and a resident of the state of New York. Dkt. No. 1419-2 at ECF pg. 638 et seq.

Plaintiff Jacob Fairess, Member No. 20-cv-06765, is currently 24 years old and resides in Orlando, Florida. He began using JUUL e-cigarettes in or around April 2018 when he was 22 years old, and at all relevant times of his JUUL usage, he was a resident of the state of Louisiana. Dkt. No. 1419-2 at ECF pg. 3589 et seq.

Plaintiff Graham Faulds, Member No. 20-cv-07255, is currently 16 years old and resides in Connecticut. Faulds began using JUUL e-cigarettes in September 2018 when he was 14 years old. Dkt. No. 1419-2 at ECF pg. 5834 et seq.

Plaintiff Clark Fish, Member No. 20-cv-05653, is currently 20 years old and resides in Nicholasville, Kentucky. Fish began using JUUL e-cigarettes in 2017 when he was 17 years old. Dkt. No. 1419-2 at ECF pg. 2618 et seq.

Plaintiff Lauren Gregg, Member No. 20-cv-04595, is currently 20 years old and resides in Salisbury Mills, New York. Gregg first tried JUUL in September of 2017 and began using JUUL e-cigarettes regularly in October of 2017 when she was 16 years old. Dkt. No. 1419-2 at ECF pg. 4548 et seq.

Plaintiff D.H., represented by her parent and Guardian Cheryl Humphries, Member No. 19-cv-06497, is currently 17 years old and resides in Hot Springs, Arkansas. D.H. began using JUUL e-cigarettes in 2017 when she was 13 years old. Dkt. No. 1419-2 at ECF pg. 5525 et seq.

J.L.K, represented by his Mother and Guardian, K.K., Member No. 20-cv-04131, is currently 17 years old and resides in High Point, North Carolina. J.L.K. began using JUUL e-cigarettes in August of 2017 when he was 14 years old. Dkt. No. 1419-2 at ECF pg. 2291 et seq.

Timugen Keffer sues personally and as the representative of his deceased minor child, M.K., Member No. 20-4356/20-cv-7164. M.K was 17 years old at her time of death and resided in Klamath Falls, Oregon. M.K. began using JUUL e-cigarettes in or around November 2015 when she was 14 years old and began purchasing JUUL e-cigarettes in or around March 2016. Dkt. No. 1419-2 at ECF pg. 4876 et seq.

Plaintiff Griffith A. Miles, Member Case. No. 19-cv-06546, is currently 24 years old and resides in Falls Church, Virginia. Miles began using JUUL e-cigarettes in 2017 when he was 20 years old. No. 19-cv-06546, Dkt. No. 16 ¶ 10.

Plaintiff Roberto Pesce, Member No. 20-cv-02658, is a 21-year old resident of Charlestown, Rhode Island. Pesce first used JUUL in or around April of 2016, when he was 16 years old. Dkt. No. 1419-2 at ECF pg. 953 et seq.

Plaintiff Kristof Rest, Member Case. No. 20-cv-01330, is currently 27 years old and resides in Miami, Florida. Rest began using JUUL products in January 2017 when he was 23 years old. Dkt. No. 1419-2 at ECF pg. 321 et seq.

Plaintiff Jayme Westfaul, Member No. 20-cv-06865, is currently 20 years old and resides in Starkville, Mississippi. Westfaul began using JUUL e-cigarettes in 2018 when she was 17 years old. Dkt. No. 1419-2 at ECF pg. 3899 et seq.

Plaintiff Cameron Widergren, Member No. 20-cv-06608, is a 20-year old resident of Tallahassee, Florida. Widergren first used JUUL in or around September of 2016, when he was 16 years old. Dkt. No. 1419-2 at ECF pg. 3257 et seq.

Plaintiff Nicco Wong, Member No. 20-cv-06912, is currently 15 years old and resides in Altamonte Springs, Florida. Wong began using JUUL e-cigarettes in or around January of 2018 when he was 12 years old. Dkt. No. 1419-2 at ECF pg. 4224 et seq.

Plaintiffs' opposition briefs identify numerous claims that they “do not intend to defend” against with respect to these bellwether plaintiffs, while reserving the right to seek economic damages related to some of those claims through the class cases. See, e.g., Oppo. to Altria [Dkt. No. 1800] at 16 n.10. As a result, the claims at issue in these motions are limited to, generally, strict liability claims, negligence claims, fraud and misrepresentation claims, and claims for medical monitoring.^[6]

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not require “heightened fact pleading of specifics, ” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570.

In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

DISCUSSION

I. PRITZKER, HUH, AND VALANI'S MOTION TO DISMISS

In their opposition to the ODD's motion to dismiss, plaintiffs clarify that they “will not defend” the bellwether plaintiffs' claims against the ODDs based on the following theories: (1) negligent failure to recall or retrofit, (2) unjust enrichment, (3) statutory consumer fraud, (4) breach of warranty, and (5) intentional infliction of emotional distress. Oppo. to ODDs [Dkt. No. 1802] at 9. The claims still at issue on the ODD's motion are: (1) strict product liability, (2) negligence, (3) fraud, (4) negligent misrepresentation, and (5) medical monitoring. Id.^[7]

A. Personal Participation

Pritzker Valani, and Huh argue, as they did on their motions to dismiss the Consolidated Class Action Complaints and the Public Entity Complaints, that plaintiffs have failed to plausibly allege that each of them “personally participated” in wrongdoing sufficient to hold each of them liable under any of the claims. They contend that plaintiffs' allegations regarding the ODD's control of the board are insufficient to allege “personal participation” and that plaintiffs'...