This case was last updated from U.S. District Courts on 01/15/2022 at 08:20:02 (UTC).

HUERTAS et al v. BAYER U.S. LLC

Case Summary

On November 16, 2021, Juan Huertas and Eva Mistretta (“Plaintiffs”), on behalf of themselves and all others similarly situated, represented by Andrew Joseph Obergfell of Bursor & Fisher PA, filed a personal property lawsuit against Bayer U.S. LLC (“Bayer” or Defendant”), seeking declaratory and injunctive reliefs, prejudgement interest and other reliefs for the Defenant’s alleged fraud. This case was filed in U.S. District Court in the District of New Jersey with Judge Susan D. Wigenton and Judge Cathy L. Waldor presiding. 

 

In the complaint, the Plaintiffs alleged that, “This is a class action lawsuit regarding Defendant’s manufacturing, distribution, and sale of Lotrimin and Tinactin spray products (the “Products”) that contain dangerously high levels of benzene, a carcinogenic impurity that has been linked to leukemia and other cancers.” The Plaintiffs then alleged that, “In October 2021, Bayer announced a recall of “all unexpired Lotrimin AF and Tinactin spray products with lot numbers beginning with TN, CV or NAA, distributed between September 2018 to September 2021, to the consumer level due to the presence of benzene in some samples of the products.” Bayer has instructed users to “stop using” the Products.”

 

The Plaintiffs further alleged that, “Any drug product not manufactured in accordance with cGMPs is deemed “adulterated” or “misbranded” and may not be distributed or sold in the United States.” The Plaintiffs then alleged that, “Defendant disregarded the cGMPs outlined above. If Defendant had not routinely disregarded the FDA’s cGMPs, or had fulfilled their quality assurance obligations, Defendant would have identified the presence of the benzene contaminant almost immediately.”

 

The Plaintiffs also alleged that, “Further, had Defendant adequately tested the Products for benzene and other carcinogens, reproductive toxins, and impurities, it would have discovered that the Products contained benzene at levels far above the legal limit, making those products ineligible for distribution, marketing, and sale. Accordingly, Defendant knowingly, or at least negligently, introduced contaminated, adulterated, and/or misbranded antifungal medications containing dangerous amounts of benzene into the U.S. market.” The Plaintiffs then allege that, “As the Products expose consumers to benzene well above the legal limit, the Products are not fit for use by humans. Plaintiffs are further entitled to damages for the injury sustained in being exposed to high levels of acutely-toxic benzene, damages related to Defendant’s conduct, and injunctive relief.”

 

There are five claims for relief laid down by the Plaintiffs. The first claim alleged is for breach of express warranty. The second claim alleged is for breach of implied warranty. The third claim allege is for violation of New York General Business Law § 349. The fourth claim alleged is for violation of New York General Business Law § 350. The fifth claim alleged is for fraud, and the sixth claim alleged is for unjust enrichment.

 

In their prayer for relief, the Plaintiffs requested the Court to certify this action as a class action and appoint the Plaintiffs as the representatives of the class. Furthermore, the Plaintiffs requested the Court for declaratory and injunctive reliefs along with compensatory, statutory, and punitive damages in amounts to be determined by the Court and/or jury; an order of restitution and all other forms of equitable monetary relief along with pre-judgement interest; and an order awarding Plaintiffs and the Classes their reasonable attorneys’ fees and expenses and costs of suit. 

 

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Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    2:21-CV-20021

  • Filing Date:

    11/16/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Personal Property Fraud

Judge Details

Presiding Judge

Susan D. Wigenton

Referral Judge

Cathy L. Waldor

 

Party Details

Plaintiffs

JUAN HUERTAS

EVA MISTRETTA

Defendant

BAYER U.S. LLC

Attorney/Law Firm Details

Plaintiff Attorney

ANDREW JOSEPH OBERGFELL

Attorney at BURSOR & FISHER PA

888 Seventh Avenue

New York, NY 10106

Defendant Attorney

EDWARD J. FANNING, JR.

Attorney at MCCARTER & ENGLISH, LLP

Four Gateway Center100 Mulberry Street

Newark, NJ 07101-0652

 

Court Documents

#18

(#18) Notice of Request by Pro Hac Vice Marianne Spencer, Esq. to receive Notices of Electronic Filings. (FANNING, EDWARD) (Entered: 01/04/2022)

#17

(#17) Notice of Request by Pro Hac Vice Andrew Soukup, Esq. to receive Notices of Electronic Filings. (FANNING, EDWARD) (Entered: 01/04/2022)

#16

(#16) Notice of Request by Pro Hac Vice Emily Ullman, Esq. to receive Notices of Electronic Filings. (FANNING, EDWARD) (Entered: 01/04/2022)

#15

(#15) Notice of Request by Pro Hac Vice Henry Liu, Esq. to receive Notices of Electronic Filings. (FANNING, EDWARD) (Entered: 01/04/2022)

#14

(#14) ORDER granting #10 Motion for Leave to Appear Pro Hac Vice of Marianne Spencer; etc. Signed by Magistrate Judge Cathy L. Waldor on 12/15/2021. (sm) (Entered: 12/16/2021)

10 #4

Certification of Service

10 #3

Proposed Order

10 #2

Certification of Marianne Spencer, Esq.

10 #1

Certification of Edward J. Fanning, Jr., Esq.

7 #4

Certification of Service

7 #2

Certification of Henry Liu, Esq.

7 #1

Certification of Edward J. Fanning, Jr., Esq.

#5

(#5) STIPULATION and Proposed Order for Extension of Time by BAYER U.S. LLC. (FANNING, EDWARD) (Entered: 12/08/2021)

#3

(#3) NOTICE of Appearance by EDWARD J. FANNING, JR on behalf of BAYER U.S. LLC (FANNING, EDWARD) (Entered: 12/08/2021)

#2

(#2) SUMMONS ISSUED as to BAYER U.S. LLC. Attached is the official court Summons, please fill out Defendant and Plaintiffs attorney information and serve. (bt, ) (Entered: 11/17/2021)

1 #3

Summons

1 #2

Civil Cover Sheet

1 #1

Main Document

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Docket Entries

  • 01/06/2022
  • DocketPro Hac Vice counsel, HENRY LIU, EMILY ULLMAN, ANDREW SOUKUP and MARIANNE SPENCER, has been added to receive Notices of Electronic Filing. Pursuant to L.Civ.R. 101.1, only local counsel are entitled to sign and file papers, enter appearances and receive payments on judgments, decrees or orders. (bt,) (Entered: 01/06/2022)

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  • 01/04/2022
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  • Docket(#18) Notice of Request by Pro Hac Vice Marianne Spencer, Esq. to receive Notices of Electronic Filings. (FANNING, EDWARD) (Entered: 01/04/2022)

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  • 01/04/2022
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  • Docket(#17) Notice of Request by Pro Hac Vice Andrew Soukup, Esq. to receive Notices of Electronic Filings. (FANNING, EDWARD) (Entered: 01/04/2022)

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  • 01/04/2022
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  • Docket(#16) Notice of Request by Pro Hac Vice Emily Ullman, Esq. to receive Notices of Electronic Filings. (FANNING, EDWARD) (Entered: 01/04/2022)

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  • 01/04/2022
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  • Docket(#15) Notice of Request by Pro Hac Vice Henry Liu, Esq. to receive Notices of Electronic Filings. (FANNING, EDWARD) (Entered: 01/04/2022)

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  • 12/23/2021
  • DocketPro Hac Vice fee as to Henry Liu, Emily Ullman, Andrew Soukup and Marianne Spencer: $ 600.00, receipt number CAM013624 (tf, ) (Entered: 12/23/2021)

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  • 12/15/2021
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  • Docket(#14) ORDER granting #10 Motion for Leave to Appear Pro Hac Vice of Marianne Spencer; etc. Signed by Magistrate Judge Cathy L. Waldor on 12/15/2021. (sm) (Entered: 12/16/2021)

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  • 12/15/2021
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  • Docket(#13) ORDER granting #9 Motion for Leave to Appear Pro Hac Vice of Andrew Soukup; etc. Signed by Magistrate Judge Cathy L. Waldor on 12/15/2021. (sm) (Entered: 12/16/2021)

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  • 12/15/2021
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  • Docket(#12) ORDER granting #8 Motion for Leave to Appear Pro Hac Vice of Emily Ullman; etc. Signed by Magistrate Judge Cathy L. Waldor on 12/15/2021. (sm) (Entered: 12/16/2021)

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  • 12/15/2021
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  • Docket(#11) ORDER granting #7 Motion for Leave to Appear Pro Hac Vice as to Henry Liu; etc. Signed by Magistrate Judge Cathy L. Waldor on 12/15/2021. (sm) (Entered: 12/16/2021)

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1 More Docket Entries
  • 12/14/2021
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  • Docket(#9) MOTION for Leave to Appear Pro Hac Vice of Andrew Soukup, Esq. by BAYER U.S. LLC. (Attachments: #1 Certification of Edward J. Fanning, Jr., Esq., #2 Certification of Andrew Soukup, Esq., #3 Proposed Order, #4 Certification of Service)(FANNING, EDWARD) (Entered: 12/14/2021)

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  • 12/14/2021
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  • Docket(#8) MOTION for Leave to Appear Pro Hac Vice of Emily Ullman, Esq. by BAYER U.S. LLC. (Attachments: #1 Certification of Edward J. Fanning, Jr., Esq., #2 Certification of Emily Ullman, Esq., #3 Proposed Order, #4 Certification of Service)(FANNING, EDWARD) (Entered: 12/14/2021)

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  • 12/14/2021
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  • Docket(#7) MOTION for Leave to Appear Pro Hac Vice of Henry Liu, Esq. by BAYER U.S. LLC. (Attachments: #1 Certification of Edward J. Fanning, Jr., Esq., #2 Certification of Henry Liu, Esq., #3 Proposed Order, #4 Certification of Service)(FANNING, EDWARD) (Entered: 12/14/2021)

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  • 12/10/2021
  • Docket(#6) TEXT ORDER: The Court has reviewed the parties' stipulation and, for good cause shown, approves the parties' proposed schedule with one modification. Defendant's deadline to respond to the Complaint is extended through and including 1/24/22. If Defendant files a motion to dismiss, Plaintiffs shall file any opposition to that motion on or before 2/23/22. If Plaintiffs file an opposition to Defendant's motion to dismiss, Defendant shall file any reply on or before 3/11/22. So Ordered by Magistrate Judge Cathy L. Waldor on 12/10/2021. (tjd) (Entered: 12/10/2021)

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  • 12/08/2021
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  • Docket(#5) STIPULATION and Proposed Order for Extension of Time by BAYER U.S. LLC. (FANNING, EDWARD) (Entered: 12/08/2021)

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  • 12/08/2021
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  • Docket(#4) Corporate Disclosure Statement by BAYER U.S. LLC. (FANNING, EDWARD) (Entered: 12/08/2021)

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  • 12/08/2021
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  • Docket(#3) NOTICE of Appearance by EDWARD J. FANNING, JR on behalf of BAYER U.S. LLC (FANNING, EDWARD) (Entered: 12/08/2021)

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  • 11/17/2021
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  • Docket(#2) SUMMONS ISSUED as to BAYER U.S. LLC. Attached is the official court Summons, please fill out Defendant and Plaintiffs attorney information and serve. (bt, ) (Entered: 11/17/2021)

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  • 11/16/2021
  • DocketJudge Susan D. Wigenton and Magistrate Judge Cathy L. Waldor added. (ps) (Entered: 11/16/2021)

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  • 11/16/2021
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  • Docket(#1) COMPLAINT against BAYER U.S. LLC ( Filing and Admin fee $ 402 receipt number ANJDC-12984095) with JURY DEMAND, filed by JUAN HUERTAS, EVA MISTRETTA. (Attachments: #1 Exhibit 1 - Demand Letter, #2 Civil Cover Sheet, #3 Summons)(OBERGFELL, ANDREW) (Entered: 11/16/2021)

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