The multidistrict litigation (MDL) court before which cases alleging a failure to disclose the possible harmful effects of plastic bottles containing bisphenol A (BPA) have been consolidated for pretrial proceedings has granted in part and denied in part the plaintiffs’ discovery motion. In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., order entered May 26, 2010). The plaintiffs apparently sought to compel the disclosure of information relating to products other than plastic bottles, such as “plastic eating utensils, plastic plates and other food contact items,” and to non-health related information from more than five years before the lawsuit was filed. The court determined that it was too late to amend the complaint to include the manufacturers of the additional products, emphasizing that “this case was not intended to—and will not—become an all-encompassing ‘BPA case.’” The court also found that the burden on defendants of complying with these…
Category Archives 8th Circuit
A Minnesota company that produces cheese has filed a complaint in federal court against an ingredients and flavorings company, alleging that it supplied a flavoring ingredient with phenolic compounds that “caused the cheese in which it was used to have a taste repugnant to certain of the customers who consumed the cheese.” Bongards’ Creameries v. Kerry Ingredients & Flavours, No. 10-2058 (D. Minn., filed May 14, 2010). According to the complaint, flavoring company representatives agreed that the cheese contained unacceptable levels of “off” flavors but refused to pay the cheese maker’s losses in excess of $1.3 million associated with the recall of 800,000 pounds of “contaminated cheese.” Alleging breach of implied warranties of merchantability and fitness for a particular purpose and breach of contract, the plaintiff seeks compensatory damages, attorney’s fees and costs.
Some two years after a raid on a Postville, Iowa, kosher slaughterhouse for the employment of hundreds of illegal immigrants, charges of child-labor law violations are apparently about to be tried in state court against former executive Sholom Rubashkin. Prosecutors reportedly dropped many related charges against other individuals on the eve of trial. Rubashkin, who was also charged with bank, mail and wire fraud and violations of the Packers & Stockyards Act, appeared at a federal court sentencing hearing in late April 2010, facing a potential life sentence in prison. According to news sources, the court will hand down a sentencing order sometime in May; a number of former U.S. attorneys general and U.S. attorneys submitted a letter to the court to express concern about the imposition of a life sentence on a first-time, non-violent offender. See National Law Journal and The Blog of Legal Times, April 26, 2010; Feedstuffs.com,…
After less than two hours of deliberation, an Arkansas jury has reportedly awarded 12 rice farmers nearly $48 million in compensatory and punitive damages for the 2006 contamination of conventional rice stocks with a genetically modified (GM) strain. The farmers alleged that Europe and Japan stopped importing U.S. rice after the contamination became known, causing a precipitous drop in the price for their crops. Most of the award against Bayer CropScience was punitive; litigation against the company is pending in a number of other states. This jury verdict, reached on April 15, 2010, tops a $1 million award rendered against the company by another Alabama jury in March. Information about that verdict can be found in issue 341 of this Update. See Associated Press, April 15, 2010.
The Eighth Circuit Court of Appeals has determined that certain business expense claims and a personal property claim made by a poultry processor for damages sustained during a break in electrical service caused by an ice storm were not covered by the processor’s insurance policy. George’s Inc. v. Allianz Global Risks US Ins. Co., No. 09-2220 (8th Cir., decided March 9, 2010). The insurer paid the processor’s claims for lost business income and extra expenses totaling more than $300,000, but refused to pay $155,000 in fixed labor and overhead costs and $30,000 for chickens that died in the processor’s holding shed. The court agreed with the insurer that the refused claims were subject to exclusions under the insurance policy, rejecting the processor’s contentions that (i) its labor and overhead costs were extra expenses because the processor experienced an increase in cost-per-pound when the business disruption caused it to process less chicken…
Cargill, Inc. has reportedly responded to a $100 million lawsuit by admitting that a beef patty it manufactured contained E. coli and caused plaintiff Stephanie Smith’s debilitating injuries. While not contesting strict liability, the company is denying that it was negligent. Its suppliers apparently certified that the product had been tested for E. coli and that all the tests were negative. The company also reportedly included in its response that its products are inspected by the U.S. Department of Agriculture and that federal law requires meat products to be labeled with warnings that meat may contain bacteria that will cause illness if not properly cooked. Smith, who is confined to a wheelchair and was profiled in a New York Times article, is represented by food lawyer William Marler. He was quoted as saying, “Never in my 23 years have I seen a food company admit liability out of the box…
A federal multidistrict litigation (MDL) court in Missouri has issued an order and opinion disposing of defendants’ motion that it reconsider its prior rulings refusing to dismiss some of the bisphenol A-related claims in the case on the basis of federal preemption and primary jurisdiction. In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., decided January 19, 2010). Details about the court’s prior ruling appear in issue 327 of this Update. The court also denied defendants’ motion to certify the issues for immediate interlocutory appeal. In its opinion, the court clarifies its holding allowing plaintiffs to proceed with their unjust enrichment claims, acknowledging that its prior holding may not have been clear. “The Court did not intend to suggest that all Plaintiffs automatically and necessarily have a valid claim for unjust enrichment. . . . [T]he Court cannot conclude that no purchaser can assert a claim…
According to a news source, a federal jury has awarded conventional rice farmers about $2 million in compensatory damages for the economic losses they allegedly experienced when European markets closed to U.S. rice imports that were found to be contaminated with genetically modified (GM) rice. In re: Genetically Modified Rice Litig., MDL No. 1811 (E.D. Mo., verdict reached December 4, 2009). The verdict was reached in the first bellwether cases to be tried. The next bellwether trial is apparently scheduled to begin in January and involves farmers from Arkansas and Mississippi. Defendant Bayer AG apparently indicated that it was pleased the jury did not award punitive damages and was preparing for the upcoming trials, which “will be different from these initial cases.” See Product Liability Law 360, December 4, 2009. In a related development, the MDL court has entered an order disposing of pre-trial motions related to the second bellwether trial. Among…
A multidistrict litigation (MDL) court in western Missouri has issued orders disposing of a number of motions in the dozens of cases transferred to it in litigation involving claims of fraud against companies that make baby bottles and sippy cups, reusable drink containers, and baby formula sold in metal cans lined with a substance containing bisphenol A (BPA). In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., orders entered November 9, 2009). The court has dismissed breach of express warranty claims and claims that depend on misrepresentations (as opposed to omissions) for insufficient pleading under Ashcroft v. Iqbal; and breach of implied warranty of fitness for a particular purpose. Remaining are claims for fraudulent omissions, violation of state consumer protection statutes, breach of implied warranty of merchantability, and unjust enrichment. The court denied defendants’ motion to dismiss on the ground of primary jurisdiction, which applies when a…
Kentucky and Texas residents have filed a putative class action in federal court against SIGG Switzerland (USA), Inc. claiming that the company misrepresented that its aluminum reusable bottles were free of bisphenol A (BPA). Johnson v. SIGG Switzerland (USA), Inc., 09-669 (W.D. Ky., filed August 28, 2009). The complaint cites actions the company’s CEO took in recent years to counter claims that the bottle’s resin liner contained BPA, including issuing press releases asserting that the products had no BPA, while actually working to reformulate the liner to rid it of the chemical. Seeking to represent a nationwide class of consumers “who purchased SIGG bottles that contained BPA,” the named plaintiffs allege breach of contract, breach of express and implied warranties, and violation of the Kentucky Consumer Protection Act. They seek a class certification order; compensatory, punitive and statutory damages; restitution and disgorgement of profits; attorney’s fees and costs; prejudgment interest; and…
