Products Liability Law Reporter

A federal district court held that a distributor of hand sanitizer was not entitled to dismissal of a products liability claim arising out of a consumer’s ingestion of recalled methanol-containing hand sanitizer.

In May 2020, Dennis Avicolli bought a 17-oz. bottle of Blumen Clear Advanced Hand Sanitizer from BJ’s Wholesale Club. Two months later, the sanitizer’s manufacturer recalled the product because it contained methanol, and BJ’s issued a press release regarding the recall. That August, Avicolli’s wife, Nadine, ingested some of the hand sanitizer and suffered vision loss and other injuries.

The Avicollis sued BJ’s Wholesale Club, Inc., alleging liability for Nadine’s injuries. The defense moved to dismiss on the basis of immunity under the Public Readiness and Emergency Preparedness Act, among other arguments.

Denying the motion, the district court noted that in a public health emergency, the Secretary of Health and Human Services may issue a declaration immunizing from liability certain covered persons from all claims for loss caused by or arising out of use of a covered countermeasure—including a qualified pandemic product or drug. The court added, however, that in March 2020, Secretary Alex M. Azar II limited immunity to only those covered countermeasures obtained through a particular means of distribution—specifically those related to a present or future federal contract or other federal agreement. Regarding these limitations, the DHHS office of the general counsel issued an advisory opinion regarding distribution, interpreting this as any arrangement with the federal government or any activity that is part of an authorized emergency response at the federal, regional, state, or local level.

The court found that the plaintiffs do not allege that BJ’s had obtained their hand sanitizer under an agreement with the federal government or in response to the pandemic. Moreover, the plaintiffs’ allegations may be plausibly read to infer that BJ’s had obtained and sold the hand sanitizer before the pandemic. Thus, the court concluded, there is no basis to infer that BJ’s had obtained the product through the types of distribution channels necessary to qualify for immunity.

Consequently, the court held that the parties were entitled to proceed with discovery.

Citation: Avicolli v. BJ’s Wholesale Club, Inc., 2021 WL 1293397 (E.D. Pa. Apr. 7, 2021).

Plaintiff counsel: AAJ members Kenneth F. Fulginiti and Sarah Dooley, both of Philadelphia.