Wal-Mart Gets Claims in Flushable Wipes Class Action Tossed

A federal judge in Florida trimmed down claims in a proposed class action lawsuit that alleged that Wal-Mart’s flushable wipes clog plumbing, ruling that consumers can’t claim they were damaged by the wipes if they continued to keep purchasing them for aesthetic reasons.

Plaintiffs Dennis Sweeney Jr. and Heather Copher-Sweeney filed the class action lawsuit in 2014 against Wal-Mart Stores Inc., Kimberly-Clark Corp. and Rockline Industries saying the companies violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

U.S. District Judge Elizabeth A. Kovavhevich said that the pair could not genuinely claim that they have been damaged by paying a premium price for the wipes since they continued to purchase them based on their look.

The Sweeneys claim they bought Wal-Mart’s Equate brand wipes and Kimberly-Clark’s Cottonelle brand of flushable wipes beginning in 2010, and then began having plumbing problems. In November 2011, a plumber allegedly removed a clump of wipes from the pipes, costing the couple $370 in repairs.

Claims of damages from paying a premium price on goods revolve around the notion that a consumer is damaged for paying more for a product based on the manufacturer’s misrepresentations, and that paying a premium price is not otherwise warranted, Judge Kovachevich explained as she granted a partial dismissal of the claims against the companies.

“Here, the undisputed facts and record evidence demonstrate that the plaintiffs continue to purchase the defendants’ ‘flushable’ wipes in lieu of the defendants’ cheaper, non-flushable wipes due to the fact that they believe the ‘flushable’ wipes are more desirable from an esthetic perspective,” Judge Kovachevich stated.

In order to match up to the claims set forth by the Sweeneys, the court would have to calculate the difference in price for the wipes without them being used as “flushable”- the way they were branded.

“Determining such a price is too speculative an endeavor to satisfy the requirements of Article Ill and, as a result, the Plaintiffs’ lack standing to pursue a FDUTPA claim,” the judge ruled.

Despite tossing some of the claims, Judge Kovachevich kept the remaining claims against the manufacturers for negligence and negligent misrepresentation, even though it was unclear which particular brand of flushable wipes allegedly clogged the Sweeneys’ plumbing system in 2011.

The judge stated that there was evidence that the couple purchased the wipes before encountering plumbing problems and that a large three to four-inch clump of wipes had been removed from their plumbing.

Although the case is “very unlikely” to be granted Class certification, according to the court documents, the judge held off on dismissing the class action claims for the time being. The remaining claims are based on plumbing damages, and more investigation will need to go into determining causation and the extent of damages.

“Nevertheless, given that the Plaintiffs have plead class allegations under the other provisions of Rule 23(b), the Court believes it would be premature to strike the Plaintiffs’ class allegations solely on the basis that the possibilities of obtaining class certification under Rule 23(b)(3) appear remote,” the judge determined.

Despite the plumbing issues, the plaintiffs say they have continued to purchase the wipes but no longer flush them, opting to throw them in the garbage instead.

“Mrs. Sweeney also testified that she prefers the flushable wipes because ‘they don’t have cartoon characters on them,’ and ‘fit a lot easier in the cabinet or on the shelf behind the toilet,’” Judge Kovachevich said.

The Sweeneys are represented by Christopher D. Boutwell and Rhon E. Jones of Beasley Allen Crow Methvin Portis & Miles PC and Anthony Garcia of AG Law Inc.

The Flushable Wipes Class Action Lawsuit is Sweeney, et al. v. Kimberly-Clark Corporation et al., Case No. 8:14-cv-03201, in the U.S. District Court for the Middle District of Florida.

UPDATE: On Mar. 3, 2016, a federal judge refused to revive certain claims in a proposed class action lawsuit against Wal-Mart over alleged plumbing clogs due to flushable wipes.