When to Make a Rash Decision

Because of his concern for “access to justice,” our illustrious governor vetoed House bill 3161, which would have increased certain court fees to help fund the judiciary. This commitment is admirable, because we must ensure that parents have the right to seek redress for their children’s diaper rash. As reported earlier by Law360, parents seeking justice for their children have filed a class action suit in the Southern District of Ohio because Procter & Gamble has manufactured diapers that allegedly cause “rashes, blisters, welts, bleeding, oozing, chemical burns, infections, sores, scarring and/or other ailments on babies’ and children’s extremely sensitive and delicate bottoms and other body parts . . . .” The Complaint is captioned as Clark v. The Procter & Gamble Co., 1:10-CV-00301, and may be accessed via PACER. The dangerous instrumentality is a newly designed Pampers Dry Max diaper.

Although the complained of diaper rash is probably more serious than other famous rashes, there are a couple of things (at least) that are concerning to me about this litigation. First, it centers on diaper rash. Is this really what the founding fathers had in mind when they signed the Declaration of Independence, preserving the right to sue over diaper rash? As noted by the National Library of Medicine, “[m]ost babies who wear diapers will have some type of diaper rash.” (To its credit, the NLM also notes that diaper rash is “rash in the diaper area,” lest one think that the diaper itself can experience rash.)

As noted by the NLM, diaper rash is caused by prolonged contact of the baby’s excretions with the skin. Lawyers will have to engage in discovery about diaper changing habits.

Q: How often did you change Junior’s diaper?
A: As often as he needed it.
Q: Did you ever leave a wet diaper on your child?
A: Never. I stand at the ready when my child urinates.

Moreover, the plaintiffs will develop some pediatric toxicologist who will say that it is more probable than not that Pampers causes diaper rash. I’m not sure what the failure to mitigate argument looks like, since carpet cleaning can be fairly expensive.

A more legitimate concern is P&G’s management of this issue in social media. Facebook has several pages devoted to this issue (see, e.g., here and here), and there is a lengthy discussion thread on Pampers’ Facebook page about the rash. In fact, the Complaint references a Facebook page requesting that P&G do away with the diapers. Through Facebook, a purported class has developed on its own, without any legwork by plaintiffs’ attorneys. Also, P&G will have to figure out how to be responsive via social media without damaging its litigation strategy. Perhaps P&G can offer some free samples as a show of confidence in its product. Whatever is decided, P&G has some problems ahead, because few things are worse than an angry parent.

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