In a significant victory for defendants facing toxic tort exposure claims, a California federal court dismissed a medical monitoring putative class action brought by drinkers of certain Pepsi products because Plaintiffs failed to plead facts to support their claims that the products cause cancer in humans.  See Riva v. Pepsico, Inc., No. C-14-2020 (N.D. Cal. Mar. 4, 2015). 

Plaintiffs brought claims for negligence, strict liability for defective design, and strict liability for failure to warn.  Plaintiffs claimed certain of Defendant’s products contained unhealthy levels of the chemical compound 4-methylimidazole (4-MeI), which, among other things, required warning labels under California's Proposition 65.  As a remedy for their claims, Plaintiffs sought medical monitoring to detect whether those who drank the products above certain levels were at higher risk of developing cancer in the future. 

In granting Defendant’s motion to dismiss, the Court concluded that the Plaintiffs had failed to provide sufficient plausible factual allegations that 4-MeI caused cancer in humans.  The Court found that Plaintiffs’ allegations of causation and injury lacked plausible factual support because “[t]here is no plausible inference that 4-MeI causes bronchioloalveolar cancer in humans.  The threshold levels of exposure that lead to enhanced risk of disease have not been identified.  And many other common foods, contain similar or higher levels of 4-MeI than the products at issue.”  Id. at *16.  While the court acknowledged that 4-MeI is listed as a carcinogen under Proposition 65, and that Plaintiffs had alleged mice experienced an increased risk of cancer due to 4-MeI exposure, the Court determined that Plaintiffs had not alleged facts that the threshold levels of 4-MeI exposure in the instant case created increased risk to humans.