JENNINGS v. EZRICARE, LLC

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BEVERLY JENNINGS,

Plaintiff,

Civil Action No. 23-02731 (GC) (RLS)

v.

OPINION

EZRICARE, LLC, et al.,

Defendants.

CASTNER, District Judge

THIS MATTER comes before the Court upon Defendants EzriCare, LLC’s and EzriRx,

LLC’s Motions to Dismiss Plaintiff’s Complaint. (ECF Nos. 37 & 38.) Plaintiff opposed (ECF

Nos. 39 & 40), and Moving Defendants replied (ECF Nos. 41 & 42). The Court has carefully

considered the parties’ submissions and decides the matter without oral argument pursuant to

Federal Rule of Civil Procedure (Rule) 78(b) and Local Civil Rule 78.1(b). For the reasons set

forth below, and other good cause shown, EzriRx’s motion is DENIED, and EzriCare’s motion is

GRANTED in part and DENIED in part.

I. BACKGROUND

Plaintiff, a Michigan resident, claims that her eyes became infected with Pseudomonas

Aeruginosa bacteria after using EzriCare artificial tears that she purchased from EzriCare on

Amazon.com. (ECF No. 1 ¶¶ 1-22.1)

1 Page numbers for record cites (i.e., “ECF Nos.”) refer to the page numbers stamped by the

Court’s e-filing system and not the internal pagination of the parties.

Plaintiff sues EzriCare, the New Jersey-based company that sold her the product (id. at ¶

23); EzriRx, another New Jersey-based company, which allegedly participated in the supply chain

(id. ¶ 24); Global Pharma Healthcare Private Ltd., the India-based corporation that designed,

manufactured, and packaged the product (id. ¶ 25); Aru Pharma, Inc., the New York-based

corporation that allegedly designed, tested, manufactured, imported, and distributed the product

(id. ¶ 26); and Amazon, the online platform where Plaintiff purchased the product, (id. ¶ 27).2

In a 14-count Complaint, Plaintiff asserts claims against all Defendants for strict liability

for failure to warn (Count One); strict liability for design or manufacturing defect (Count Two);

negligence or gross negligence (Count Three); products liability – negligence for failure to warn

(Count Four); products liability – negligence for design or manufacturing defect (Count Five);

negligent misrepresentation or omission (Count Six); fraud (Count Seven); fraudulent concealment

(Count Eight); breach of express warranty (Count Nine); breach of implied warranty (Count Ten);

negligent failure to timely recall (Count Eleven); violations of New Jersey’s Consumer Fraud Act

(NJCFA), N.J. Stat. Ann. § 56:8-2 (Count Twelve); violations of the New Jersey Products Liability

Act (NJPLA), N.J. Stat. Ann. § 2A:58C-1 (Count Thirteen); and punitive damages (Count

Fourteen). (ECF No. 1 at 18-46.)

EzriCare and EzriRx each moved to dismiss. EzriRx argues that Plaintiff lacks standing

against EzriRx and fails to state a claim against EzriRx. (ECF No. 38-1 at 8-11; ECF No. 42 at 4-

6.) EzriCare argues that: (1) Plaintiff’s Complaint is insufficient on its face, (2) Plaintiff’s product

liability claims are subsumed by the New Jersey Products Liability Act (NJPLA), (3) Plaintiff fails

2 The Court has diversity-based subject-matter jurisdiction under 28 U.S.C. § 1332(a)(1).

to sufficiently plead a claim for breach of express warranty, and (4) Plaintiff fails to sufficiently

plead a claim under the NJPLA. (ECF No. 37-1 at 11-24; ECF No. 41 at 6-14.)3

II. LEGAL STANDARDS

A. Rule 12(b)(1)—Lack of Subject-Matter Jurisdiction

Under Rule 12(b)(1), a court must grant a motion to dismiss if it lacks subject matter

jurisdiction to hear a claim. See Fed. R. Civ. P. 12(b)(1). A motion to dismiss for want of standing

is properly brought under Rule 12(b)(1), because “standing is a jurisdictional matter.” Ballentine

v. United States, 486 F.3d 806, 810 (3d Cir. 2007). On a motion to dismiss for lack of standing,

plaintiff “bears the burden of establishing the elements of standing, and each element must be

supported in the same way as any other matter on which the plaintiff bears the burden of proof,

i.e., with the manner and degree of evidence required at the successive stages of the litigation.”

Id. (citations and internal quotation marks omitted); see also Transunion LLC v. Ramirez, 141 S.

Ct. 2190, 2207-08 (2021) (confirming that “plaintiffs must demonstrate standing for each claim

that they press and for each form of relief they seek . . . with the manner and degree of evidence

required at the successive stages of the litigation”).

In evaluating a Rule 12(b)(1) motion to dismiss, courts must first determine whether the

motion “presents a ‘facial’ attack or a ‘factual’ attack on the claim at issue, because that distinction

determines how the pleading must be reviewed.” Const. Party of Pa. v. Aichele, 757 F.3d 347,

357 (3d Cir. 2014) (quoting In re Schering Plough Corp. Intron/Temodar Consumer Class Action,

678 F.3d 235, 243 (3d Cir. 2012)). “A facial 12(b)(1) challenge, which attacks the complaint on

its face without contesting its alleged facts, is like a 12(b)(6) motion in requiring the court to

3 EzriRx joins in EzriCare’s motion to dismiss. (ECF No. 38-1 at 5 n.1.)

‘consider the allegations of the complaint as true.’” Hartig Drug Co. Inc. v. Senju Pharm. Co.,

836 F.3d 261, 268 (3d Cir. 2016) (citation omitted).

A factual challenge, on the other hand, “attacks allegations underlying the assertion of

jurisdiction in the complaint, and it allows the defendant to present competing facts.” Id.; see

Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (noting that a motion “supported by a

sworn statement of facts . . . must be construed as a factual, rather than a facial attack” (quoting

Int’l Ass’n of Machinists & Aerospace Workers v. Nw. Airlines, Inc., 673 F.2d 700, 711 (3d Cir.

1982))). The party invoking the federal court’s jurisdiction has “the burden of proof that

jurisdiction does in fact exist.” Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006)

(quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). The “trial

court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the

case” and “the plaintiff will have the burden of proof that jurisdiction does in fact exist.” Id.

(quoting Mortensen, 549 F.2d at 891). “Therefore, a 12(b)(1) factual challenge strips the plaintiff

of the protections and factual deference provided under 12(b)(6) review.” Hartig Drug Co., 836

F.3d at 268.

Regardless of the type of challenge, the plaintiff bears the “burden of proving that the court

has subject matter jurisdiction.” Cottrell v. Heritages Dairy Stores, Inc., Civ. No. 09-1743, 2010

WL 3908567, at *2 (D.N.J. Sep. 30, 2010) (citing Mortensen, 549 F.2d at 891).

B. Rule 12(b)(6)—Failure to State a Claim

On a motion to dismiss for failure to state a claim, courts “accept the factual allegations in

the complaint as true, draw all reasonable inferences in favor of the plaintiff, and assess whether

the complaint and the exhibits attached to it ‘contain enough facts to state a claim to relief that is

plausible on its face.’” Wilson v. USI Ins. Serv. LLC, 57 F.4th 131, 140 (3d Cir. 2023) (quoting

Watters v. Bd. of Sch. Directors of City of Scranton, 975 F.3d 406, 412 (3d Cir. 2020)). “A claim

is facially plausible ‘when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.’” Clark v. Coupe, 55

F.4th 167, 178 (3d Cir. 2022) (quoting Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 372

(3d Cir. 2019)). When assessing the factual allegations in a complaint, courts “disregard legal

conclusions and recitals of the elements of a cause of action that are supported only by mere

conclusory statements.” Wilson, 57 F.4th at 140 (citing Oakwood Lab’ys LLC v. Thanoo, 999 F.3d

892, 903 (3d Cir. 2021)). The defendant bringing a Rule 12(b)(6) motion bears the burden of

“showing that a complaint fails to state a claim.” In re Plavix Mktg., Sales Pracs. & Prod. Liab.

Litig. (No. II), 974 F.3d 228, 231 (3d Cir. 2020) (citing Davis, 824 F.3d at 349).

III. DISCUSSION

A. EzriRx’s Motion

EzriRx argues that the Complaint does not allege facts establishing standing against it.

(ECF No. 38-1 at 8-9.) Article III standing requires “(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.” Finkelman v. Nat’l Football League, 810 F.3d 187,

193 (3d Cir. 2016). EzriRx challenges only the causal-connection element.

EzriRx argues that Plaintiff has not and cannot plead a causal connection between her

injury and EzriRx, because EzriRx operates a business-to-business online marketplace—it does

not sell products to consumers. (ECF No. 38-1 at 9.) In support, EzriRx submits the affidavit of

Ezriel Green, the founder and chief executive officer of EzriRx. (Id. at 5-6; ECF No. 38-3 at 1-

2.)4 Green states that “EzriRx is an online marketplace platform that assists pharmacies in

purchasing prescription medications, over-the-counter drugs, and pet medication,” and that

“EzriRx does not sell directly to consumers.” (ECF No. 38-3 at 1.)

Plaintiff asserts that EzriRx and Green did not argue that it “had no involvement in the

marketing, sale, and distribution of EzriCare Artificial Tears.” (ECF No. 39 at 10.) She also

argues that “EzriCare” is a trademark registered and licensed to EzriRx. (Id.) Plaintiff further

asserts that “even if this Court determines that EzriRx should not be held directly liable for its

actions and/or inactions with respect to EzriCare, EzriRx can be held derivatively liable for the

actions and products of EzriCare” under an alter ego theory and agency principles. (Id. at 11-14.)

The Court disagrees with Plaintiff’s alter-ego theory of liability. Entities sharing

leadership, contact information, and counsel, (see id. at 12), does not alone justify disregarding

their corporate separateness. See Mikhail v. Amarin Corp., plc, Civ. No. 23-01856, 2024 WL

863427, at *6-8 (D.N.J. Feb. 29, 2024) (discussing the standard for disregarding corporate

separateness). The Court cannot disregard EzriRx’s and EzriCare’s separateness on these grounds.

On the other hand, the Court finds that the Complaint includes enough allegations from

which the Court could infer a plausible causal connection between Plaintiff’s injury and EzriRx’s

conduct.5 As to EzriRx’s involvement, the Complaint alleges that EzriRx “markets, advertises,

labels, distributes, packages, imports, supplies, and sells” EzriCare’s artificial tears; and

4 On a factual attack on subject-matter jurisdiction, such as EzriRx’s, “the court may

consider evidence ‘outside the pleadings,’ including ‘affidavits, depositions, and testimony to

resolve factual issues bearing on jurisdiction.’” Fort v. United States, 712 F. Supp. 3d 575, 587

(D.N.J. 2024) (quoting Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014); and

then Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997)).

5 Having found that the Complaint includes enough allegations from which the Court could

infer a plausible causal connection between Plaintiff’s injury and EzriRx’s conduct, the Court need

not address Plaintiff’s agency theory of liability.

“‘EzriCare’ is a trademark registered and licensed to” EzriRx. (ECF No. 1 ¶¶23-24.) Those

allegations explain EzriRx’s connection with EzriCare and the product. They imply the way in

which EzriRx may be involved in the design, labeling, advertising, or distribution of a product that

made its way to Plaintiff. The Court too observes that Green’s affidavit does not address this issue.

(See ECF No. 38-3 at 1-2.) So, although Plaintiff, faced with a factual challenge on subject-matter

jurisdiction, does not enjoy Rule 12(b)(6) deference, the Court finds that her pleadings clear the

standing hurdle. In the same light, the Court rejects EzriRx’s Rule 12(b)(6) challenge asserting

that the Complaint does not provide “fair notice of the claim and the grounds upon which it rests.”

(ECF No. 38-1 at 7, 10.)

EzriRx’s Motion to Dismiss is therefore denied.

B. EzriCare’s Motion

1. Group Pleading

EzriCare argues that Plaintiff’s Complaint is insufficient on its face because it contains

impermissible group pleading. (ECF No. 37-1 at 12; ECF No. 41 at 6-7.) Specifically, EzriCare

argues that the Complaint “fail[s] to give EzriCare notice as to what, if any, claims they make

against it because Plaintiff’s Complaint impermissibly lumps all the defendants together.” (Id.)

A group pleading “is a complaint that ‘fails to specify which of the defendants are

responsible for which acts or omissions, or which of the defendants the claim is brought against.’”

Foulke v. Twp. of Chery Hill, Civ. No. 23-02543, 2024 WL 3568841, at *7 (D.N.J. July 29, 2024)

(quoting Morales v. New Jersey, Civ. No. 21-11548, 2023 WL 5003891, at *4 (D.N.J. Aug. 3,

2023)). Group pleadings are those in which “it is ‘virtually impossible to know which allegations

of fact are intended to support which claim(s) for relief.’” Innovative Cosm. Concepts, LLC v.

Brown Packaging, Inc., Civ. No. 18-5939, 2020 WL 7048577, at *2 (D.N.J. Apr. 28, 2020)

(citation omitted).

Courts in the Third Circuit often cite to the Eleventh Circuit when addressing group

pleading issues. See Foulke, 2024 WL 3568841, at *7 (noting that “it is the Eleventh Circuit that

has the robust doctrine prohibiting [group] pleadings”); Bartol v. Barrowclough, 251 F. Supp. 3d

855, 859 n.3 (D.N.J. 2017) (“The United States Court of Appeals for the Eleventh Circuit has

articulated the bulk of existing law in [the] area” of group pleadings.). As the Eleventh Circuit

recently explained, there are four broad categories of group pleading that merit dismissal: (1) “a

complaint containing multiple counts where each count adopts the allegations of all preceding

counts,” (2) a complaint that is “replete with conclusory, vague, and immaterial facts not obviously

connected to any particular cause of action,” (3) a complaint that does not separate “into a different

count each cause of action or claim for relief,” or (4) a complaint that “assert[s] multiple claims

against multiple defendants without specifying which of the defendants are responsible for which

acts or omissions, or which of the defendants the claim is brought against.” See Weiland v. Palm

Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015).

The Court is satisfied that Plaintiff’s Complaint is not an impermissible group pleading

because each count in the Complaint outlines specific allegations of fact intended to support her

claims for relief. See Innovative Cosm. Concepts, LLC, 2020 WL 7048577, at *2. Further, while

the Court recognizes that the Complaint contains “multiple counts where each count adopts the

allegations of all preceding counts” and “assert[s] multiple claims against multiple defendants,”

Weiland, 792 F. 3d at 1321-23, the Complaint sets forth factual allegations against EzriCare

separate from factual allegations against other Defendants throughout the Complaint, such as

distinctions in the supply chain of EzriCare artificial tears. (See, e.g., ECF No. 1 ¶¶ 23-24, 55, 60,

71-72); see also S.S. v. Hillsborough Twp. Bd. of Ed., Civ. No. 20-13077, 2022 WL 807371, at *5

(D.N.J. Mar. 17, 2022) (noting that “courts must consider the complaint in its entirety” (quoting

Kedra v. Schroeter, 876 F. 3d 424, 441 (3d Cir. 2017))). Therefore, the Complaint, while not

perfect, does not constitute a group pleading and provides EzriCare fair notice of the claims against

it. See also Mosley v. EzriCare LLC, 2024 WL 1342615, at *12-13 (E.D. Ky. Mar. 29, 2024)

(“The overlapping allegations against the defendants do not transform the [a]mended [c]omplaint

into a [group] pleading; the allegations are similar because the premise of the Amended Complaint

is that EzriCare and its co-defendants engaged in similar conduct. At this point, before discovery

and before more is known about each defendant’s role in getting the relevant products to the

market, the Amended Complaint is sufficient.”); Diamond Resorts U.S. Collection Dev., LLC v.

Sumday Vacations, LLC, 2020 WL 3250130, at *2 (M.D. Fla. Feb. 21, 2020) (finding that a

complaint alleging the defendants engaged in the same or similar conduct was not an improper

group pleading that warranted dismissal).

2. NJPLA Subsumption

EzriCare argues that the NJPLA subsumes Plaintiff’s common-law products-liability

claims. (ECF No. 37-1 at 14-16; ECF No. 41 at 9-10.) Plaintiff counters that “until this Court

conducts a choice-of-law analysis and determines with finality the law applicable to [Plaintiff’s]

claims, Plaintiff is entitled to plead claims that may proceed under common law, Michigan law,

and/or New Jersey law.” (ECF No. 40 at 18.)

Although “it can be inappropriate or impossible for a court to conduct [a choice of law]

analysis at the motion to dismiss stage when little or no discovery has taken place[,] . . . [s]ome

choice of law issues may not require a full factual record and may be amenable to resolution on a

motion to dismiss.” Rapid Models & Prototypes, Inc. v. Innovated Sols., 71 F. Supp. 3d 492, 499

(D.N.J. 2014) (quoting Snyder v. Farnam Companies, Inc., 792 F. Supp. 2d 712, 718 (D.N.J.

2011)) (most alterations in Rapid Models).

On the present record, the Court finds that it would be inappropriate to conduct a choice-

of-law analysis at this stage. See Dickstein v. EzriCare, Civ. No. 23-01649, 2024 WL 2803026,

at *6 (D.N.J. May 31, 2024) (declining to conduct a choice-of-law analysis in case involving a

plaintiff from Michigan and defendants from New Jersey). To the extent a conflict exists (or does

not exist) between the law of New Jersey and Michigan, the parties’ do not conduct a choice-of-

law analysis for the Court’s review. Nor do they provide the information necessary for the Court

to perform its own analysis. See Harper v. LG Elec. U.S.A., Inc., 595 F. Supp. 2d 486, 490 (D.N.J.

2009) (noting that the court was “unable to make the fact-intensive choice-of-law determination

on the record before it”); see also Tjahjono v. Westinghouse Air Brake Tech. Corp., 2024 WL

1287085, at *5 (W.D. Pa. Mar. 26, 2024) (noting that “when confronted with a choice of law issue

at the motion to dismiss stage, courts within the Third Circuit have concluded that it is more

appropriate to address the issue at a later stage in the proceedings”). The Court will refrain from

doing so.6 Therefore, the Court rejects EzriCare’s NJPLA subsumption argument without

prejudice subject to EzriCare renewing the argument later.

6 EzriCare raises the choice of law issue in a footnote. Courts generally need not address

arguments raised in footnotes. See Kislak Co. Inc. v. Prominent Properties LLC, Civ. No. 22-

2482, 2023 WL 5218085, at *3 n.1 (D.N.J. Aug. 15, 2023) (“[A]rguments raised in passing (such

as, in a footnote), but not squarely argued, are considered waived.” (quoting John Wyeth & Brother

Ltd. v. Cigna Int’l Corp., 119 F.3d 1070, 1076, n.6 (3d Cir. 1997))).

3. Express Warranty Claim

Count Nine asserts a claim for breach of express warranty. To state a claim for breach of

express warranty under New Jersey law,7 a plaintiff must allege that (1) “Defendant made an

affirmation, promise or description about the product;” (2) “this affirmation, promise or

description became part of the basis of the bargain for the product;” and (3) “the product ultimately

did not conform to the affirmation, promise or description.” Hindermyer v. B. Braun Med Inc.,

419 F. Supp. 3d 809, 829-30 (D.N.J. 2019) (quoting Snyder, 792 F. Supp. 2d at 721). The New

Jersey Uniform Commercial Code (U.C.C.) defines an “express warranty” as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer

which relates to the goods and becomes part of the basis of the

bargain creates an express warranty that the goods shall conform to

the affirmation or promise.

(b) Any description of the goods which is made part of the basis of

the bargain creates an express warranty that the goods shall conform

to the description.

[N.J. Stat. Ann. § 12A:2-313(1).]

Plaintiff argues that EzriCare “ignore[d] Plaintiff’s thorough factual allegations, . . .

including the . . . facts that led to the FDA recall of EzriCare Artificial Tears.” (ECF No. 40 at 19)

(citing ECF No. 1 ¶¶ 54-75).) The Complaint includes a copy of Plaintiff’s order confirmation

(ECF No. 1 ¶ 8) and the product’s label (id. ¶ 60). In the proof of purchase, EzriCare stated that

the artificial tears were “Eye Drops for Dry Eyes – Extra Strong Moisturizing Lubricating Eye

Drops – Potent Concentration for Fast Acting Dry Eye Relief.” (Id. ¶ 8.) On the EzriCare label,

it described the product as “Lubricant Eye Drops” that “Refresh, Lubricate and Moisturizes.”

7 When sitting in diversity, the Court applies the law of the forum state. See Gebhardt v.

Beri, Civ. No. 23-3008, 2024 WL 3279531, at *2 n.2 (D.N.J. June 14, 2024) (citing Erie Railroad

v. Tompkins, 304 U.S. 64, 78 (1938)).

(Id. ¶ 60.) Further, the label lists “Uses” and states the following: “for use as a protectant against

further irritation or to relieve dryness of the eye” and “for the temporary relief of discomfort due

to minor irritations of the eye, or to exposure to wind or sun.” (Id.)

The Complaint asserts that “[s]uch statements constitute an affirmation of fact or promise

or a description of the product as being safe and not posing a dangerous health risk.” (Id. ¶ 186.)

Additionally, the Complaint argues that “Defendants breached this express warranty because the

EzriCare Artificial Tears are not safe.” (Id. ¶ 187.) To the contrary, Plaintiff argues that “these

artificial tears pose a serious and dangerous health risk because they are contaminated with the

Pseudomonas Aeruginosa bacteria—a dangerous and deadly bacterium.” (Id.) Finally, Plaintiff

alleges that she “read and relied on these express warranties provided by Defendants in the

labeling, packaging, and advertisements.” (Id. ¶ 188.)

The statements Plaintiff relies on are insufficient to state a claim for breach of express

warranty. Courts in this Circuit have refused to find that user instructions, or even labels

representing that a product is “safe and effective,” are express warranties. See In re Avandia Mktg.

Sales Pracs. & Prod. Liab. Litig., 588 F. App’x 171, 176-78 (3d Cir. 2014) (noting approvingly

that an Ohio court “refused to find the words ‘safe and effective’ to create an express warranty in

the absence of representations that a drug was free from all harmful side effects or was absolutely

harmless”); Volin v. Gen. Elec. Co., 189 F. Supp. 3d 411, 421 (D.N.J. 2016) (rejecting that

instructions in an owner’s manual constituted an express warranty that the product would be “free

from defects in material and workmanship and fit for the ordinary purpose” of the product). Also

relevant is that the EzriCare product label qualifies itself, warning users to “[s]top use and ask a

doctor if you experience” “eye pain,” “changes in vision,” or “continued redness or irritation of

the eye or if the condition worsens or persists for more than 72 hours.” (ECF No. 1 ¶ 60.) See In

re Avandia, 588 F. App’x at 178 (“Because GSK disclosed Avandia’s contraindications, risk

factors, and potential side effects and [the plaintiff] does not allege GSK made unqualified

guarantees of safety or effectiveness, [the plaintiff] has failed as a matter of New Jersey law to

state an express warranty claim.”).

Thus, the Court finds that Plaintiff does not state a claim for breach of express warranty

under New Jersey law.

4. NJPLA Claim

Count Thirteen asserts NJPLA violations for the defective design and manufacturing of

EzriCare artificial tears. (ECF No. 1 ¶¶ 239-51.)

To prove a defect, a plaintiff must show that “(1) the product was defective; (2) the defect

existed when the product left the hands of the defendant; (3) the defect proximately caused injuries

to the plaintiff; and (4) the injured plaintiff was a reasonably foreseeable user.” Hindermyer, 419

F. Supp. 3d at 823 (citing Myrlak v. Port Auth. of N.Y. & N.J., 723 A.2d 45, 52 (N.J. 1999)).

a. Design Defect

To establish a prima facie case of design defect, the plaintiff must prove the availability of

a “technologically feasible and practical alternative design that would have reduced or prevented

the plaintiff’s harm without substantially impairing the reasonably anticipated or intended function

of the product.” Hindermyer, 419 F. Supp. 3d at 823-24 (citation omitted). No per se rule requires

a plaintiff to, “under all circumstances, provide a reasonable alternative design” at the pleading

stage. Id. at 824. But to state a claim for design defect under the NJPLA, the plaintiff must “plead

either that the product’s risk [of harm] outweighs its [utility], or that an alternate design exists.”

Id. (quoting Mendez v. Shah, 28 F. Supp. 3d 282, 298 (D.N.J. 2014) (alterations in Hindermyer).

EzriCare argues that Plaintiff “fails to plead any of the requisite elements for design

defect.” (ECF No. 37-1 at 20.) The Court disagrees. Plaintiff attributes the contamination to the

“lack of appropriate microbial testing, formulation issues[,] . . . and lack of proper controls

concerning tamper-evident packaging.” (ECF No. 1 ¶¶ 3, 74.) For alternative design, Plaintiff

asserts that “safer alternatives, including artificial tears products that contain preservatives to

prevent the growth of bacteria, have been readily available for decades.” (Id. ¶¶ 103, 141, 148.)

She also alleges that the “multi-use bottle design also made the Product more susceptible to the

contamination and growth of Pseudomonas Aeruginosa bacteria.” (Id. ¶ 143.) Plaintiff also

contends that “new therapies . . . known as ‘phage’ therapies” can be used to “treat antibiotic-

resistant bacteria, like the Pseudomonas Aeruginosa[,] . . . by deploying viruses that aim to attack

bacteria, fending off infections that traditional antibiotic drugs fail to stamp out.” (Id. ¶ 64.)

And as to the risk-utility element, Plaintiff alleges that “EzriCare Artificial Tears is an

inessential over-the-counter product that does not treat or cure any serious disease.” (Id. ¶ 103.)

Thinner allegations than these have survived motions to dismiss. See, e.g., Barrett, 518 F. Supp.

3d at 826 (denying a motion to dismiss a defective-design claim alleging that a pharmaceutical

“was developed, mixed and/or created in an insanitary and unsafe environment that contained or

promoted the development of harmful organisms such as bacteria, which was . . . unreasonably

dangerous”).

Thus, Plaintiff’s claim for design defect under the NJPLA may proceed.

b. Manufacturing Defect

A manufacturing defect exists if a product “deviated from the design specification,

formulae, or performance standards of the manufacturer or from otherwise identical units

manufactured to the same manufacturing specifications or formulae.” N.J. Stat. Ann. § 2A:58C-

2(a). “To determine whether a product contains a manufacturing defect, the ‘product may be

measured against the same product as manufactured according to the manufacturer’s standards.’”

Hindermyer, 419 F. Supp. 3d at 824 (quoting Mendez, 28 F. Supp. 3d at 298). “If the particular

product used by the plaintiff fails to conform to those standards or other units of the same kind, it

is a manufacturing defect.” Id. (quoting Mendez, 28 F. Supp. 3d at 298).

New Jersey products-liability law does not require the injured plaintiff “to prove a specific

manufacturer’s defect.” Id. (quoting Mendez, 28 F. Supp. 3d at 297). “[B]ecause the evidence of

a flaw in the manufacturing process is uniquely within the knowledge and control of the

manufacturer, ‘[p]roof that a product is not fit for its intended purposes requires only proof . . . that

something was wrong with the product.’” Id. (quoting Myrlak, 723 A.2d at 52) (some quotation

marks omitted); see Cole v. NIBCO, Inc., Civ. No. 13-7871, 2016 WL 10536025, at *16 (D.N.J.

Feb. 26, 2016) (“[A] plaintiff may demonstrate that a manufacturing defect exists with evidence

that in a general sense and as understood by a layman . . . ‘something was wrong’ with the product.”

(quoting Scanlon v. Gen. Motors Corp., Chevrolet Motor Div., 326 A.2d 673, 677 (N.J. 1974)).

That said, the “mere occurrence of an accident and the mere fact that someone was injured are not

sufficient to demonstrate the existence of a defect.” Hindermyer, 419 F. Supp. 3d at 824 (quoting

Myrlak, 723 A.2d at 52).

Based on these pleading standards and a liberal reading of her Complaint, Plaintiff’s

manufacturing-defect allegations are sufficient to survive a motion to dismiss. Plaintiff alleges

that the manufacturer failed to perform “appropriate microbial testing” and lacked “proper controls

concerning tamper-evidence packaging.” (ECF No. 1 ¶¶ 3, 74.) She also alleges that the EzriCare

product “deviated from the design specifications, formulae, or performance standards of the

manufacturer,” such that the product had been contaminated by the time he used it. (Id. ¶ 247.)

As a result, the allegations create a plausible inference that the product “fail[ed] to conform to

standards or other units of the same kind.” Cf. Hindermyer, 419 F. Supp. 3d at 824.

Thus, Plaintiff’s manufacturing-defect claim under the NJPLA may proceed.

5. NJPLA’s Immunity Provision

Although product sellers are subject to liability under the NJPLA, the Act includes an

immunity provision “to rescue persons it categorized as ‘product sellers’ from strict liability in

certain circumstances.” Allstate New Jersey Ins. Co. v. Amazon.com, Inc., Civ. No. 17-2738, 2018

WL 3546197, at *6 (D.N.J. July 24, 2018) (quoting Thomas v. Ford Motor Co., 70 F. Supp. 2d

521, 530 (D.N.J. 1999)). Thus, “by filing an affidavit correctly identifying the manufacturer of

the product,” a defendant seller can escape liability under the Act. Id.; N.J. Stat. Ann. § 2A:58C-

9(b). Even when a product seller submits the affidavit certifying the correct identity of the

manufacturer, a product seller may still be liable if the seller “exercised some significant control

over the design, manufacture, packaging or labeling of the product relative to the alleged defect in

the product which caused the injury, death or damage[; or] . . . if [t]he manufacturer has no known

agents, facility, or other presence within the United States[;] or [t]he manufacturer has no

attachable assets or has been adjudicated bankrupt and a judgment is not otherwise recoverable

from the assets of the bankruptcy estate.” Claypotch v. Heller, Inc., 823 A.2d 844, 852 (N.J. Super.

Ct. App. Div. 2003) (quoting N.J. Stat. Ann. § 2A:58C-9(c)(2), (3), (d)(1)). A product seller also

may be subject to liability “if it ‘knew or should have known of the defect in the product which

caused the injury, death or damage or the plaintiff can affirmatively demonstrate that the product

seller was in possession of facts from which a reasonable person would conclude that the product

seller had or should have had knowledge of the alleged defect in the product which caused the

injury, death or damage; or . . . created the defect in the product which caused the injury, death or

damage.’” Id. (citing N.J. Stat. Ann. § 2A:58C-9(d)(2), (3)). Therefore, “a product seller is

relieved from liability only if it is ‘truly innocent of responsibility for the alleged product and the

injured party must retain a viable claim against the manufacturer.’” Bashir v. Home Depot, Civ.

No. 08-04745, 2011 WL 3625707, at *3 (D.N.J. Aug. 16, 2011) (quoting Claypotch, 823 A.2d at

852) (emphasis added).

EzriCare claims to fall within the NJPLA provision of immunity because it submits an

affidavit of Ezriel Green, who is also EzriCare’s co-founder, stating that “EzriCare’s Artificial

Tears were manufactured and packaged by Global Pharma Healthcare Private Limited, whose

manufacturing facility is located in Tamil Nadu, India.” (ECF No. 37-3 at 1.) Plaintiff counters

and asserts that the Complaint alleges that “EzriCare knew or should have known that the EzriCare

Artificial Tears were defectively designed such that they were contaminated with a deadly

bacterium.” (ECF No. 40 at 25 (citing ECF No. 1 ¶¶ 28 & 114).) Further, Plaintiff argues that

“[b]ecause Global Pharma does not have any presence in the United States, no attachable assets,

and cannot be located, EzriCare is not entitled to immunity under the NJPLA.” (Id. at 26.)

The Court finds that the “present record does not establish that EzriCare is ‘truly innocent

of responsibility for the alleged product’ as a matter of law,” and therefore the parties should

engage in discovery to clarify EzriCare’s role in bringing this product to the market. See Dickstein,

2024 WL 2803026, at * 10.

Thus, the Court rejects EzriCare’s claim of immunity at this time.

IV. CONCLUSION

For the reasons set forth above, and other good cause shown, EzriRx’s Motion is DENIED,

and EzriCare’s Motion is GRANTED in part and DENIED in part. Plaintiffs claim for breach

of express warranty is DISMISSED without prejudice. An appropriate Order follows.

Dated: December _“*_, 2024 Ah Wy i EL: Li □

/GEORGEYTE CASTNER

NITED STATES DISTRICT JUDGE

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