Products Liability Law Reporter

A federal district court held that Costco Wholesale Corp. and Kimberly-Clark Worldwide, Inc., may be liable for a consumer’s bacterial infection allegedly resulting from his use of flushable wipes.

Here, Adam Packer bought Cottonelle Flushable Wipes from a Florida Costco. After using the wipes, he developed a bacterial infection in the area where he had used the product. He required treatment at a hospital and surgery. Kimberly-Clark announced a recall of the product that year, warning that certain lots of the wipes could contain bacteria that could lead to serious infections in healthy individuals.

Packer filed suit against Costco and Kimberly-Clark, which removed the suit to federal district court based on diversity jurisdiction. The plaintiff alleged various claims for products liability, including strict liability, failure to warn, breach of warranty, and negligence. The defendants moved to dismiss on the basis that the plaintiff had not sufficiently alleged causation.

Denying the motion, the court found that under Florida law, there is no heightened pleading standard regarding causation. Thus, the court said, the plaintiff need not set forth the precise chemical, biological, or other process by which the wipes had caused him harm. The plaintiff alleged that he had purchased and used the wipes during the time in which some lots were contaminated with bacteria and that he had developed a bacterial infection in the same area where he had used the product. This is enough for the court to draw a reasonable inference that bacteria on the wipes led to his injury, the court concluded.

Regarding the plaintiff’s failure-to-warn claim, the court noted that under negligence or strict liability theories, he must allege that the defendants’ warning was inadequate and that the inadequacy of the warning led to his injury. Here, the plaintiff alleged that the defendants did not adequately warn him of the risk inherent in the normal foreseeable use of the wipes or the risk that the wipes might be infected with dangerous bacteria. The court therefore rejected the defendants’ argument that the plaintiff had made assertions devoid of factual enhancement, concluding that the defense had also failed to show that the plaintiff’s failure-to-warn claims were inadequate.

Citation: Packer v. Kimberly-Clark Worldwide, Inc., 2022 WL 4355734 (M.D. Fla. Sept. 20, 2022).

Plaintiff counsel: Michael S. Roscoe and Kevin B. Woods, both of Tampa, Fla.