United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
allege that they were exposed to the chemical
p-Phenylenediamine (PPD) during their use of
defendants' “Just for Men” hair coloring
product. As a result of the exposure, plaintiffs assert they
may have developed a sensitivity to PPD. Plaintiffs allege
defendants' conduct was tortious and have brought a claim
for “medical monitoring, ” asking that defendants
be required to create a monetary fund to compensate
plaintiffs for expenses associated with testing to determine
whether plaintiffs have developed a PPD allergy. Before me
now is defendants' motion to dismiss plaintiffs'
claim. After careful consideration, I conclude that although
plaintiffs have pled facts sufficient to demonstrate Article
III standing, medical monitoring is not an independent cause
of action under Missouri law, and plaintiffs' complaint
will be dismissed for failure to state a claim.
under Rule 12(b)(1) of the Federal Rules of Civil Procedure
is appropriate if the party asserting jurisdiction has failed
to satisfy a threshold jurisdictional requirement. See
Herden v. United States, 726 F.3d 1042, 1046 (8th Cir.
2013). The court has no subject matter jurisdiction over a
case in which the litigant lacks Article III standing.
Iowa League of Cities v. E.P.A., 711 F.3d 844, 869
(8th Cir. 2013). The plaintiff bears the burden of
establishing standing. Susan B. Anthony List v.
Driehaus, 134 S.Ct. 2334, 2342 (2014) (party invoking
federal jurisdiction has burden of proving
standing). “To establish Article III standing,
a plaintiff must show (1) an injury in fact, (2) a sufficient
causal connection between the injury and the conduct
complained of, and (3) a likelihood that the injury will be
redressed by a favorable decision.” Id. at
2341 (quotation marks and citation omitted). When determining
whether to dismiss “a complaint for lack of standing,
” a court is to “constru[e] the allegations of
the complaint, and the reasonable inferences drawn therefrom,
most favorably to the plaintiff.” Glickert
v. Loop Trolley Trasnp. Developmen Dist., 792 F.3d
876, 880 (8th Cir. 2015)(quotation marks and citations
dispute here concerns the injury-in-fact requirement of
Article III standing. Defendants argue that plaintiffs have
not suffered any injury. Specifically, plaintiffs admit they
have not suffered an adverse physical reaction from the Just
for Men product and cannot claim an economic loss related to
their purchase because they successfully used it. Defendants
also assert that plaintiffs are not at risk of having an
adverse reaction at all in the future unless they are further
exposed to PPD, and a hypothetical future exposure and
possible future injury are not sufficient for standing.
their response to defendants' motion, plaintiffs argue
they have suffered the “concrete injury” of
“potential hypersensitivity to PPD.” (ECF# 12, p.
6). In their complaint, plaintiffs claim that although they
suffered no adverse reactions during previous uses of Just
for Men, their exposure to the product has “subjected
them to a significant risk of sensitization to PPD and other
related chemicals and other related illnesses in the
future.” (ECF #1, ¶ 123). Plaintiffs claim that
they will require ongoing diagnostic testing to determine
whether their exposure to Just for Men has caused PPD
sensitization. (Id. at ¶ 126).
injury sufficient to satisfy Article III must be concrete and
particularized and actual or imminent, not conjectural or
hypothetical.” Driehaus, 134 S.Ct. at 2341
(quotation marks and citation omitted). However, courts that
have addressed claims seeking medical monitoring damages have
found that a purported increased risk of harm is sufficient
to satisfy the injury requirement for Article III standing.
See, e.g., Sutton v. St. Jude Medical S.C., Inc.,
419 F.3d 568 (6th Cir. 2005); Riva v. Pepsico, Inc.,
82 F.Supp.3d 1045, 1052 (N.D. Cal. 2015); Bouldry v. C.R.
Bard, Inc., 909 F.Supp.2d 1371, 1375 (S.D. Fla. 2012).
Here, plaintiffs claim that defendants' product has
caused them to have an increased risk of hypersensitivity to
PPD, and they have alleged specific facts to support their
allegation that that hypersensitivity to PPD can be a
dangerous medical condition. For purposes of evaluating
Article III injury-in-fact sufficiency at the pleading stage,
I conclude that this is enough. See Hutterville Hutterian
Brethren, Inc. v. Sveen, 776 F.3d 547, 553 (8th Cir.
2015) (where a “case has progressed only to the
pleading stage, general factual allegations of injury
resulting from the defendant's conduct may suffice”
for purposes of Article III standing)(quotation marks and
to State a Claim
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the legal sufficiency of the complaint. When considering a
12(b)(6) motion, the court assumes the factual allegations of
a complaint are true and construes them in favor of the
plaintiff. Neitzke v. Williams, 490 U.S. 319, 326-27
8(a)(2), Fed. R. Civ. P., provides that a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” In
Bell Atlantic Corp. v. Twombly, the Supreme Court
clarified that Rule 8(a)(2) requires complaints to contain
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” 550
U.S. 544, 555 (2007); accord Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009). Specifically, to survive a motion to
dismiss, a complaint must contain enough factual allegations,
accepted as true, to state a claim for relief “that is
plausible on its face.” Twombly, 550 U.S. at
570. The issue in considering such a motion is not whether
the plaintiff will ultimately prevail, but whether the
plaintiff is entitled to present evidence in support of the
claim. See Neitzke, 490 U.S. at 327.
argue that plaintiffs' complaint must be dismissed
because their only claim is for medical monitoring and
Missouri courts do not recognize standalone claims of medical
monitoring. Plaintiffs have responded that Missouri courts do
recognize stand-alone medical monitoring claims. Both sides
rely on the same Missouri Supreme Court case to support their
argument. See Meyer ex. rel. Coplin, 220 S.W.3d 712
(Mo. 2007). In Meyer, the plaintiff asserted she was
a member of a class of children who had been exposed to toxic
emissions from a lead smelter. The Missouri Supreme Court
noted that plaintiff “alleged claims of negligence,
strict liability, private nuisance, and trespass as theories
of liability and sought compensatory damages to establish a
medical monitoring program for class members.”
Id. at 714. In considering the parameters of a
medical monitoring claim, the court explicitly opined that
recognizing “the need for future medical monitoring
does not create a new tort.” Id. at 717.
Rather, medical monitoring is “a compensable item of
damage when liability is established under traditional tort
theories of recovery.” Id. Accordingly, here,
plaintiffs cannot stand on a claim of medical monitoring
alone. They are required to properly plead a traditional tort
cause of action and seek medical monitoring as a remedy.
Plaintiffs have accurately argued that their complaint is
rife with allegations of tortious conduct committed by
defendants. However, plaintiffs' complaint still fails to
indicate what theories of liability they are asserting. The
complaint makes no attempt to allege the elements of any
recognizable tort. Without this rudimentary component, it
would be nearly impossible for defendant to answer the
complaint, conduct efficient discovery, or analyze the merits
of plaintiffs' lawsuit. A pleading “must…
provide the defendant with fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Eckert v. Titan Tire Corp., 514 F.3d
801, 806 (8th Cir. 2008) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). Plaintiffs' complaint here fails
to do so.
last sentence of their opposition to the motion to dismiss,
plaintiffs asked that they be given leave to file an amended
complaint should their existing pleading be found deficient.
“Although leave to amend shall be freely given when
justice so requires, plaintiffs do not have an absolute or
automatic right to amend.” In re 2007 Novastar
Financial Inc., Securities Litigation, 579 F.3d 878, 884
(8th Cir. 2009). In order to preserve the right to amend the
complaint, a party must submit the proposed amendment along
with its motion to amend. Id. (quoting Clayton
v. White Hall Sch. Dist., 778 F.2d 457, 460 (8th Cir.
1985). Here, plaintiffs have not filed a motion to amend,
submitted a proposed amended complaint, or given any
explanation as to how they would amend their pleading to save
their claim. In light of this, I will not provide plaintiffs
leave to file an amended complaint. See Novastar,
579 F.3d at 885 (“the [court] is not required to engage
in a guessing game as a result of the plaintiffs failure to
specify proposed new allegations”) (quoting Meehan
v. United Consumers Club Franchising Corp., 312 F.3d
909, 914 (8th Cir. 2002)).
IT IS HEREBY ORDERED that defendants' motion to dismiss
is GRANTED, and plaintiffs complaint is ...