A multidistrict litigation (MDL) court in Missouri has issued a number of rulings on motions for summary judgment and to exclude or limit expert testimony in the bellwether cases involving Texas rice farmers who allege that contamination of the U.S. rice supply with genetically modified (GM) rice caused a precipitous decline in prices for their crops on world markets. In re Genetically Modified Rice Litig., MDL No. 1811 (E.D. Mo., decided October 4, 2010). The court’s pre-trial rulings are similar to its rulings in previous bellwether trials involving farmers in Arkansas, Louisiana, Mississippi, and Missouri. The court determined, among other matters, that (i) the Texas farmers could not sue for violation of a North Carolina statute; (ii) the economic loss doctrine did not bar the plaintiffs’ claims; (iii) the plaintiffs could pursue claims for private nuisance but not for public nuisance; (iv) the defendants cannot assert as a defense that…
Category Archives 6th Circuit
The Sixth Circuit Court of Appeals has determined that parts of an Ohio law regulating the use of labeling on dairy products from cows not treated with growth hormones violate the First Amendment. Int’l Dairy Foods Ass’n v. Boggs, Nos. 09-3515/3526 (6th Cir., decided September 30, 2010). The court also upheld other provisions and remanded parts of the rule relating to antibiotics and pesticides for further proceedings. Thus, the court overturned, in part, a district court determination that upheld most of the rule’s provisions. The Ohio Director of Agriculture adopted a rule in May 2008 that (i) prohibited dairy producers from claiming their milk was hormone-free (a composition claim) and (ii) placed stringent restrictions on the use of the claim “this milk is from cows not supplemented with rbST [recombinant bovine somatotropin or recombinant bovine growth hormone (rbGH)]” (a production claim). Among other matters, the latter require verification, and contiguous…
A Kentucky man accused of murdering his wife reportedly notified the court that he would defend himself by claiming that a high caffeine intake, from soft drinks, energy drinks and diet pills, made him temporarily insane and unable to form the requisite criminal intent to kill his wife. During opening statements, however, his attorney apparently stated that Woody Will Smith did not murder his wife, but provided a false confession to police because of high stress from large amounts of caffeine and a lack of sleep. According to news sources, the caffeine defense has been used before and was successful in the case of an Idaho man who allegedly injured two pedestrians with a car. A judge reportedly concluded that this man could not form the mental intent to commit the crime after consuming two large cups of coffee following a restless night and weeks of hard work. Experts have…
A federal court in Kentucky has determined as a matter of law that a company which tested, developed and approved paper packaging for customers buying KFC Popcorn chicken breached its contract because the containers caught fire while being microwaved. KFC U.S. Props., Inc. v. Paris Packaging, Inc., No. 09-00249 (W.D. Ky., decided February 25, 2010). So ruling, the court granted KFC’s motion for partial summary judgment. Additional details about the lawsuit appear in issue 299 of this Update. According to the court, the parties’ contract specified that the packaging company would be responsible for ensuring the product was safe regardless of any standards, specifications or other information KFC provided. Because it was reasonably foreseeable that customers would microwave their KFC chicken in the paper box in which they took it home, the court held that the defendant breached its contract by providing unsafe packaging that was unfit for its intended…
After a federal court in Ohio preliminarily approved the settlement of claims that The Dannon Co. deceived consumers by advertising the purported digestive health benefits of its Activia® and DanActive® products, class notification was initiated. Gemelas v. The Dannon Co., Inc., No. 08-236 (N.D. Ohio, order filed January 27, 2010). Without admitting liability, Dannon has agreed to create a $35 million fund for the settlement, which was discussed in detail in issue 320 of this Update. Claims must be submitted by October 1, 2010, and objections to the proposed settlement must be filed by May 24. The court has scheduled a June 23 hearing to consider any objections; to decide whether the settlement is fair, reasonable and adequate; and to determine what the plaintiffs’ lawyers will be paid.
Federal courts in Ohio and Kentucky have remanded putative class claims alleging that Applebee’s International, Inc., DineEquity, Inc. and Weight Watchers International, Inc. misrepresented the calorie and nutritional information on the Weight Watchers menu items available in Applebee’s restaurants. Curry v. Applebee’s Int’l, Inc., No. 09-505 (S.D. Ohio, filed November 17, 2009); Kramer v. Applebee’s Int’l, Inc., No. 09-131 (E.D. Ky., filed November 17, 2009). Each plaintiff filed her complaint in state court and sought to certify a class of statewide residents. In July 2009, more than ten months after the complaints had been filed and after some discovery and an unsuccessful mediation had occurred, the defendants removed the cases to their respective federal courts. Writing for both courts, the Ohio district court determined that the defendants had filed for removal too late under the Class Action Fairness Act, which requires that a notice of removal be filed within 30 days…
An Ohio appeals court has dismissed negligence, product liability, fraudulent concealment, and civil conspiracy claims filed against companies that supplied diacetyl to a flavoring company that employed two workers who allegedly contracted bronchiolitis obliterans, a debilitating lung disease, from exposure to the butter-flavoring chemical. Doane v. Givaudan Flavors Corp., No. C-080928 (Ohio Ct. App., decided September 25, 2009). Affirming the trial court’s grant of defendants’ motions for summary judgment, the appeals court found, among other matters, that the claims were barred by the statute of limitations and because the employer was a sophisticated purchaser with greater knowledge about the “dangers of diacetyl” than its suppliers.
Without admitting liability for alleged misleading advertising involving its probiotic yogurt products, The Dannon Co. has agreed to settle claims in seven putative class actions for $35 million. Gemelas v. The Dannon Co., Inc., No. 08-00236 (N.D. Ohio, stipulation of settlement filed September 18, 2009). If approved by the court, the settlement would also require the company to modify the advertising and labeling for its Activia® and DanActive® products to explain how they “regulate the digestive system” and to modify promotional statements about the products’ effects on the digestive tract’s immune system. Under the proposed settlement, class claimants can obtain $15 by submitting a claim form, $15-$30 by submitting a claim form signed under penalty of perjury, and $30-$100 by submitting a claim form signed under penalty of perjury and register receipts or other sufficient proofs of purchase. The amount ultimately paid to claimants will depend on the number of…
KFC U.S. Properties, Inc. has filed a lawsuit in federal court against the company that allegedly supplied defective food containers for the sale of Popcorn Chicken® to KFC customers; the containers apparently burst into flames when the product is reheated in a microwave. KFC U.S. Props., Inc. v. Paris Packaging, Inc., No. 09-00249 (W.D. Ky., filed April 3, 2009). According to the complaint, in February 2009, the defendant began using an ink with high carbon content for the graphics printed on the containers. After receiving customer complaints, KFC tested the containers and established that they “spontaneously combusted in a microwave within 13-20 seconds of reheating.” While no personal injuries have been alleged, the company is seeking damages in excess of $75,000 for breach of contract.
Seeking “substantial damages,” a company that makes wild bird food has filed a lawsuit against a supplier that allegedly sold it peanut by-products originating from the Georgia facility linked to the Salmonella contamination outbreak. The Scotts Co., LLC v. Cereal Byproducts Co., No. 09-108 (S.D. Ohio, filed February 17, 2009). According to the complaint, the defendant sold and shipped peanut by-products to the plaintiff in December 2008 and January 2009, after it was known that the outbreak originated in the Blakely, Georgia, facility owned and operated by the Peanut Corp. of America (PCA), and repeatedly “made false representations” that the by-products did not come from a potentially contaminated PCA facility. The plaintiff was allegedly forced to recall its suet wild bird food products and incurred unspecified costs and injury to goodwill. The complaint alleges breach of contract, negligent misrepresentation and violations of Ohio’s deceptive trade practices law.
