B.C. Supreme Court partially certifies personal injury class-action lawsuit against Kleenex manufacturer

The B.C. Supreme Court has partially certified a class-action lawsuit against Kimberly-Clark Corporation, the maker of Kleenex, after the company produced flushable wipes that were contaminated with bacteria.

The suit was brought forward by Linda Bowman, a British Columbia resident who purchased Cottonelle wipes at Costco on July 17, 2020.

She allegedly experienced exacerbated body pain and developed inflamed skin follicles and sores from using the wipes.

According to the court decision released on Aug. 28, that may have been due to the wipes being contaminated with the bacteria Pluralibacter gergoviae, which Kimberly-Clark maintained was "intermittent and infrequent" in a certain production line. The product was subsequently recalled, and some customers were refunded.

Bowman, however, argued the manufacturing giant did not do enough to compensate those who bought the contaminated wipes, and its recall notice was not circulated widely enough.

In the decision, Justice Sharon Matthews agreed that those who suffered an injury from using the wipes may be compensated from a successful class-action lawsuit.

"Kimberly-Clark has not provided any evidence of the quantum of compensation provided to personal injury claimants, the method by which they obtained the compensation, or how appropriate compensation was determined," the judgment reads.

"I am not satisfied that the compensation provided has been adequate because there is simply no evidence about it."

Matthews, however, did not agree with all of the plaintiff's claims, including that the recall program was not well circulated and that Kimberly-Clark misled customers who suffered economic consequences.

In an emailed statement to CBC News, a spokesperson for Kimberly-Clark said the company was "disappointed" in the decision but plans to "vigorously defend" the Cottonnelle brand in court.

"We appreciate that the Court significantly narrowed the scope of the case and noted that Kimberly-Clark 'takes its responsibilities as a manufacturer seriously' and that the company should be 'recognized and lauded' for its efforts," the spokesperson wrote.

"Kimberly-Clark and its Cottonelle brand are deeply committed to the safety and quality of our products, and the well-being of the consumers who use them is a priority to us."

Bacteria could cause serious infection

According to Dr. Abdu Sharkawy, who provided a deposition, the bacteria P. gergoviae could cause serious infections, "including life-threatening infections in persons with compromised immune systems."

Kimberly-Clark said the bacteria had been detected in some wipes due to a faulty sanitization cabinet in its production facility.

The company, through notices from Health Canada and an FAQ on its website, issued a recall on all Cottonelle flushable wipes produced on that line between Feb. 7 and Sept. 14, 2020.

In total, the company recalled more than 1.76 million packages of the wipes from Canada alone, and issued more than $214,000 in refunds.

"As of June 23, 2022 ... Kimberly-Clark had received 149 claims from Canadian consumers alleging personal injury related to the use of recalled lots, and that all but eight claims had been resolved," the court's decision said.

Bowman argued that a class-action lawsuit was the only way for customers who may have bought the contaminated wipes to access fair compensation and "access to justice."

Kimberly-Clark argued Bowman's claims were too broad, and that too few of the contaminated wipes may have been bought by consumers for the class action to proceed.

Matthews agreed with Bowman, in part, saying even those who may have received compensation from the company may be entitled to access the benefits provided by a class-action lawsuit — such as making the costs of a lawsuit more economical and having multiple claims heard in a single setting.

The judge asked the plaintiff, Bowman, to come back to her with amendments, clarifying which personal injury claims would be heard in court.

Neither Bowman's nor Kimberly-Clark's assertions have been proven in court. A class-action certification demonstrates there is a group that may benefit from the case going before a judge.