Responding to a question certified by a federal district court, a divided Montana Supreme Court has said that obesity which is not the symptom of a physiological condition may be a “physical or mental impairment” as the terms are used in the Montana Human Rights Act. BNSF Ry. Co. v. Feit, No. OP 11-0463 (Mont., decided July 6, 2012). The issue arose after an extremely obese applicant for a conductor-trainee position was told he would not be considered for the position unless he lost 10 percent of his body weight or completed certain medical examinations, including a $1,800 sleep study, at his own expense. The applicant successfully pursued an administrative remedy through the state department of labor and industry alleging that the railway defendant had illegally discriminated against him because of perceived disability. He was awarded damages for lost wages and benefits, prejudgment interest and emotional distress. On appeal, the…
Category Archives U.S. Circuit Courts
The Maine Supreme Judicial Court has adopted the “reasonable consumer expectation” test to determine whether a boneless turkey product allegedly containing a bone was defective. Pinkham v. Cargill, Inc., No. 11-340 (Me., decided July 3, 2012). So ruling, the court vacated the lower court’s grant of summary judgment and remanded for further proceedings. Plaintiff Stanley Pinkham allegedly consumed a hot turkey sandwich during his break. The defendant allegedly manufactured the boneless turkey product in the sandwich. In the middle of or immediately after eating the sandwich, Pinkham allegedly experienced severe and sudden pain in his upper abdominal area and thought that he might be having a heart attack. His physicians later determined that in their opinion he most likely had an “esophageal tear or perforation.” Pinkham sued, alleging that this was a result of bone in the boneless turkey. The defendant moved for summary judgment, which the trial court granted while noting that Maine had…
A New York resident has filed a putative class action against Diamond Pet Foods and Amazon.com, seeking medical monitoring for pets that consumed recalled Salmonella-tainted pet food. Cohen v. Schell & Kampeter, Inc., d/b/a Diamond Pet Foods, No. 12-3299 (E.D.N.Y., filed July 2, 2012). Plaintiff Steven Cohen alleges that he fed his dogs Taste of the Wild® brand pet food, purchased from Amazon.com, and that they became ill, vomiting frequently, “which caused damage to Plaintiff’s property.” Seeking to certify a nationwide class and statewide subclass of consumers, the plaintiff alleges breach of implied and express warranty, strict products liability, violations of state consumer fraud laws, negligence, and unjust enrichment. In addition to medical monitoring, the plaintiff seeks actual damages or restitution, attorney’s fees, costs, and interest. A Canadian non-profit representing the interests of foie gras producers, a New York-based foie gras producer and a company that operates restaurants in California have…
The Wisconsin Supreme Court has decided which of the parties sued over an E. coli outbreak that sickened dozens of Sizzler Steak House patrons in 2000 and caused the death of a 3-year-old are liable for consequential damages, indemnity and costs under various supply chain and insurance contracts. Kriefall v. Sizzler USA Franchise, Inc., Nos. 2009AP1212 & 2010AP491 (Wis., decided June 29, 2012). Among other matters, the court ruled that Sizzler was entitled to (i) recover consequential damages for the meat supplier’s breach of implied warranties despite limiting language in the continuing guaranty provision of their contract, and (ii) indemnity from the meat supplier for Sizzler’s advance partial payment to the family of the deceased child “because the payment was not voluntary and the jury found that Sizzler was zero percent liable for the E. coli contamination.” The court also ruled that Sizzler could not recover its attorney’s fees despite a jury finding…
According to a news source, Whole Foods Market Inc. is seeking to stop its deposition in consumer fraud litigation filed against Skinny Girl Cocktails LLC, arguing that it does not own or operate Whole Foods retail stores nor does it “decide which suppliers, food brokers or distributors are to be used by Whole Foods Market retail locations.” Greene v. Skinny Girl Cocktails LLC, 12-550 (W.D. Tex., motion to quash filed June 22, 2012). A number of putative class actions alleging that the defendants falsely market margaritas as “all natural” were filed in district courts around the country after Whole Foods stores pulled the product from their shelves upon learning that it contains sodium benzoate as a preservative. An effort to have the actions consolidated before a multidistrict litigation court failed; additional details about that ruling appear in Issue 422 of this Update. See Law360, June 25, 2012.
The Natural Resources Defense Council (NRDC) has filed a lawsuit against the Food and Drug Administration (FDA) and the Center for Veterinary Medicine (CVM) alleging that they have failed, in response to a Freedom of Information Act (FOIA) request, to produce documents pertaining to risk assessments for antibiotics used in livestock production. NRDC v. FDA, No. 12-4757 (S.D.N.Y., filed June 18, 2012). Seeking a declaration that the defendants violated FOIA and an order that they disclose “all responsive, non-exempt records to plaintiff within fifteen days,” NRDC refers to industry guidance that FDA issued in 2003 on “assessing the safety of antimicrobial new animal drugs with regard to the microbiological effects on bacteria of human health concern” and actions the defendants have taken since then relying on the guidance. After FDA acknowledged in a December 2011 Federal Register notice that it had begun “to look at the safety of some .…
The Federal Circuit Court of Appeals, in a divided ruling, has determined that Wrigley’s 2000 patent for menthol chewing gum was invalid because prior patents made Wrigley’s claimed invention obvious; thus, the court determined that Cadbury did not infringe Wrigley’s patent when it reformulated its chewing gum to include the compound claimed in Wrigley’s patent. Wm. Wrigley Jr. Co. v. Cadbury Adams USA LLC, Nos. 2011-1140, -1150 (Fed. Cir., decided June 22, 2012). The court also determined that Wrigley did not infringe Cadbury’s 1989 patent for menthol chewing gum because the compound used by Wrigley is not the equivalent of the compound described in Cadbury’s patent. A dissenting judge argued that the majority applied the incorrect legal standard and improperly shifted the burden of proving the validity of Wrigley’s patent to Wrigley and erred in how it assessed the evidence of commercial success and copying by others in its determination…
Several Louisville, Kentucky, residents and a business owner have filed a putative class action against Diageo Americas Supply, Inc., alleging that one of its distilling operations has caused an accumulation of “the fungus Baudoinia compniacensis, colloquially referred to as ‘whiskey fungus,’” on their real and personal property. Merrick v. Diageo Americas Supply, Inc., No. 12-334 (W.D. Ky., filed Jun 15, 2012). They allege that the ethanol emissions which occur during the “aging/ warehousing stage of alcoholic beverage production” catalyze and promote the growth of whiskey fungus, a black, sooty substance that purportedly accumulates on metal, vinyl, concrete, and wood and requires “extreme cleaning measures such as a high-pressure washing or the application of caustic chemicals such as chlorine bleach.” These measures allegedly “cause early weathering of surfaces affected by the fungus,” such as gutters, siding, roofing, fencing, and vehicles. Seeking to certify a class of all persons and entities owning or…
The Judicial Panel on Multidistrict Litigation (JPML) has consolidated before a multidistrict litigation (MDL) court in New Jersey six lawsuits alleging that Tropicana deceptively markets its not-from-concentrate orange juice as “100% Pure & Natural,” despite extensive processing. In re: Tropicana Orange Juice Mktg. & Sales Practices Litig., MDL No. 2353 (J.P.M.L., order entered June 11, 2012). New Jersey was selected as the appropriate venue because plaintiff’s counsel in the case filed there “appear to have significantly investigated and developed the factual issues underpinning their complaint.” Other plaintiffs apparently dismissed their complaints to join the New Jersey action, and JPML found that the court there had the resources to devote to the litigation and an experienced judge not currently overseeing an MDL. The panel refused to include a potential tag-along case brought by a plaintiff who argued for “industry-wide centralization,” that is, an MDL that would include all orange juice manufacturers…
In advance of a July 9, 2012, hearing before a federal court in New Jersey to approve the settlement of claims that Ferrero USA, Inc. misled consumers about nutritive value in its ads for Nutella®, a hazelnut spread purportedly containing high fat and sugar levels, a number of class members have filed objections that challenge class notice, most of the settlement terms and the fee award to plaintiffs’ counsel. In re: Nutella Mktg. & Sales Practices Litig., No. 11-1086 (D.N.J.). Additional details about the proposed settlement appear in Issue 437 of this Update. Class member Clark Hampe, for example, complains that the settlement fund “has a claims procedure that caps the total number of claims that can be made and the maximum amount of compensation for class members. Then, if these arbitrary maximums are satisfied, the settlement is vague about what happens next. Either funds will be paid to a…