Without any further factual allegations, the plaintiff’s proposed second amended complaint failed to plausibly allege the existence of a product defect.

The plaintiff brought suit against the manufacturer and online seller (Amazon) when the eye lubricant she purchased allegedly caused her permanent eye injury. After the manufacturer defendant filed a motion to dismiss, the plaintiff moved to file a second amended complaint. Because the court found that the plaintiff’s proposed amended claim was not plausible and did not satisfy the pleading standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) in the context of strict product liability in Kentucky, it denied the plaintiff’s motion for leave to file a second amended complaint and granted the manufacturer defendant’s motion to dismiss.

The product at issue in this case is ActivEyes Nighttime, a lubricant eye ointment. The product manufacturer, Altair, voluntarily recalled the product “as a precautionary measure due to management concerns regarding the sufficiency of quality assurance controls over critical systems in the manufacturing facility.” The recall was issued on July 15, 2019. The plaintiff allegedly used the product two days later and found out about the recall four days thereafter from an Amazon report. The plaintiff claimed that after using the product, she now suffers from “chronic optimal inflammation, profound excessive production of discharge, redness, pain, all of which interferes with her vision and use of both eyes.” The court explained that for the plaintiff’s strict liability and negligence claims, she must plausibly allege the existence of a defect in ActivEyes Nighttime; yet, the only facts alleged in her proposed second amended complaint that point to a possible defect concern a voluntary recall issued by the FDA. However, the recall notice made no mention of bacteria issues, contrary to the plaintiff’s characterization of same, was voluntary and precautionary. The recall further stated that there was no evidence of adverse consequences of use. Without any further factual allegations, the plaintiff’s proposed second amended complaint failed to plausibly allege the existence of a defect. Under Kentucky law, the plaintiff needed to allege how the defendant’s product was manufactured improperly, which she did not do here. “In product liability cases, it is not enough for Plaintiffs to simply rely on their basic injury allegations and argue that the product was somehow defective because it was dangerous.” Accordingly, the court denied the plaintiff’s motion and dismissed the action against the manufacturer defendant.

^{Case Law Alerts, 1st Quarter, January 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}