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“Well-Pleaded Facts” Needed to Sustain Products Liability Suit – Osness v. Lasko Products, Inc.

A U.S. District judge in Pennsylvania dismissed a woman’s products liability claim due to a lack of sufficient facts in her pleadings to support her claims. In Osness v. Lasko Products, Inc., an Illinois woman brought a putative class action against a company for several consumer rights causes of action. The plaintiff alleged that the company knew about certain defects in a line of box fans it manufactured, but failed to warn consumers. The company’s motion to dismiss argued that the plaintiff failed to allege facts that supported any of her claims.

Lasko Products (“Lasko”), a Pennsylvania-based company, manufactures box fans for home use. In 2006, the Consumer Product Safety Commission (CPSC) announced a recall of about 5.6 million Lasko fans. The recalled fans would have been sold to the public from September 2000 until February 2004. The CPSC announced the recall after receiving reports of fires caused by electrical problems with the fan’s motor.

The plaintiff, Deborah Osness, alleged that Lasko continued to produce fans with the same defect. This led to a second recall of fans by the CPSC in March 2011, covering fans sold to consumers from July 2002 until December 2005. Both recalls occurred after the fans’ two-year warranties expired, according to the plaintiff, so Lasko did not offer a refund. Instead, it offered a “cord adapter” that eliminated the risk of fire but, according to the plaintiff, did not fix the underlying electrical problem. The electrical defect could cause the fan to blow a fuse, allegedly making it unusable.


Osness purchased a Lasko fan that was subject to one of the recalls. She filed a lawsuit on behalf of herself and a putative class of similarly-situated people, although she did not specify in her complaint when she bought her fan, which recall applied to it, or whether or not her fan experienced electrical problems. The lawsuit alleged consumer fraud, breach of an express warranty, breach of the implied warranty of merchantability, and unjust enrichment. Lasko brought a 12(b)(6) motion to dismiss, which the court granted.

The court’s order addressed each of Osness’ claims in turn:

Fraud. The plaintiff, the court said, failed to plead any of the facts required by the Federal Rules of Civil Procedure. It cited a Third Circuit opinion that held that a fraud claim requires a plaintiff to “plead the who, what, when, where, and how” of the alleged fraud. The court also noted that the second recall covered fans that were already in the marketplace before the first recall occurred, a fact that crippled her fraud claim.
Breach of express warranty. The court dismissed this claim because Osness did not allege that her own fan malfunctioned, nor that she learned of any defect, during the two-year warranty period.
Breach of the implied warranty of merchantability. This claim failed, according to the court, because she did not allege that her fan ever failed to function properly.
Unjust enrichment. The court held that she failed to plead the elements, namely that the defendant received a benefit from the plaintiff, recognized it as a benefit, and accepted it.

At DiTommaso Lubin Austermuehle, our consumer rights and class action litigation attorneys represent individuals in consumer fraud and other claims throughout the Chicagoland area including Cook, DuPage, Lake, Kane, McHenry and Will Counties and in the Mid-West region including Indiana, Wisconsin and Iowa.

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Photo credit: ‘Two box fans’ by Arbitrarily0 (Own work) [CC-BY-SA-3.0 or GFDL], via Wikimedia Commons.