Harris v. Walmart, Inc.

On December 29, 2021, Clay Harris (“Plaintiff”) individually and on behalf of himself and all others similarly situated, represented by James Rubin Cummins of Cummins Law LLC, filed a product liability lawsuit against Walmart Inc. (“Walmart” or “Defendant”), seeking injunctive relief and damages along with prejudgment and post-judgement interest, among other relief, for alleged breach of contract by allegedly manufacturing and selling carcinogenic products. This case was filed in the United States District Court in the Southern District of Ohio with Judges Edmund A. Sargus and Kimberly A. Jolson presiding.

In the complaint, Plaintiff alleged that, “This is a class action lawsuit against Defendant regarding the manufacture, distribution, and sale of Equate spray-on antiperspirant products that contain benzene, a known human carcinogen (the “Affected Products”)” and “On November 3, 2021, Valisure, an independent pharmacy that analyzes the safety of consumer products, filed a citizen petition with the FDA detailing its findings that it detected high levels of benzene in many body spray products, including several of Defendant’s Equate body spray antiperspirant products. Valisure called for the FDA to recall all batches of Defendant’s body spray antiperspirant products that contained benzene on the basis that they are adulterated under Section 501 of the Federal Drug and Cosmetics Act (“FDCA”) in violation of 21 U.S.C. § 351 and misbranded under Section 502 of the FDCA in violation of 21 U.S.C. § 352.”

Plaintiff also alleged that, “Plaintiff and Class Members purchased the Affected Products with the expectation that the products were safe, including free of carcinogens. Because Defendant sold products to consumers that contain dangerous levels of benzene, Plaintiff and the Class Members were deprived of the benefit of their bargain” and “To prevent Defendant from selling misbranded, illegal, and dangerous products in the future, Plaintiff seeks injunctive relief including, but not limited to requiring Defendant to improve internal testing protocols and requiring independent testing of Defendant’s products to ensure that its body spray products are free of benzene before they are sold.”

Plaintiff further alleged that, “Defendant’s advertising campaigns are false and misleading. The presence of benzene in the Affected Products renders the Affected Products illegal and unfit for sale in trade or commerce. Plaintiff would not have purchased the Affected Products had they been truthfully and accurately labeled.”

There are three claims of relief laid down by Plaintiff. The first claim is for the alleged breach of express warranty. The second claim is for the alleged violation of Ohio’s Consumer Sales Protection Act, Ohio Revised Code § 1345.01, et seq. The third claim is for the alleged unjust enrichment. 

In the prayer for relief, Plaintiff requested the court to certify this action as class action and appoint Plaintiff as the representative of the class. Plaintiff further requested the court for injunctive relief and declaratory and equitable relief along with compensatory damages in an amount exceeding $5,000,000; actual damages; restitution and disgorgement; costs of prosecuting this action, including expert witness fees; punitive damages along with reasonable attorneys’ fees, costs and prejudgment and post-judgment interest; and any other relief as this court may deem just and proper.

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