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…
Category Archives U.S. Circuit Courts
According to a news source, a putative class action has been filed against E&J Gallo Winery alleging that it falsely labeled and sold its Red Bicyclette® wine as Pinot Noir when the wine was “illegally cut with cheaper Syrah and Merlot grapes.” The action, reportedly filed in Los Angeles Superior Court, follows news that wine makers in France were sentenced for selling the cheaper wine to the company as pinot noir. Additional details about the French scam appear in issue 338 of this Update. Meanwhile, the U.S. Alcohol and Tobacco Tax and Trade Bureau (TTB) has reportedly been investigating the matter with French authorities and may also take action against U.S. wine importers. The bureau was quoted as saying, “TTB is waiting for an official translation of the court documents and has begun investigations to determine the appropriate course of action to take regarding the American importers of these mislabeled…
A putative class action has been filed in a Madison County, Illinois, court alleging that a fast food chain has fraudulently advertised its Super Stacked™ sub sandwiches “as containing ‘double portions of meat’” compared with its standard sandwiches, when they do not have double the meat. Williams v. Kahala Corp., No. 10-L-166 (Ill. Cir. Ct., Madison Cty., filed February 12, 2010). According to the complaint, while defendant charges a premium for its Super Stacked™ sandwiches, they “do not have double the protein” because “they do not have double the meat.” The plaintiffs allege that a 12-inch BLIMPIE Best™ sandwich has 50 grams of protein, while its Super Stacked™ counterpart “contains only 73 grams of protein.” They also allege that some Super Stacked™ sandwiches have no “regular” counterpart with which consumers can compare. Seeking to certify a class of all persons who purchased a Super Stacked™ sandwich from Blimpie restaurants in…
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.
A federal court in Washington has reportedly denied a feedlot company’s request to invalidate or delay implementation of the country-of-origin labeling (COOL) regulations adopted by the U.S. Department of Agriculture (USDA) in 2008. Easterday Ranches, Inc. v. USDA, No. __ (E.D. Wash., decided February 5, 2010). According to news sources, the company argued that the COOL regulations, which do not allow beef imported from Canada or Mexico and slaughtered in the United States to be labeled as a U.S. product, conflicted with U.S. Treasury Department rules, would raise its recordkeeping and operational costs, and deter packers from paying fair prices for Canadian cattle. The Treasury rules apparently provide that beef is deemed a U.S. product if it undergoes “substantial transformation,” e.g., slaughter, within this country. The court refused to postpone USDA’s rules and further declined to order the agency to create an exception to COOL allowing cattle imported from Canada and…
A putative class action has been filed in a federal court in Louisiana against CVS Caremark Corp., alleging that the company “has a long history of selling out-of-date medications, baby formula, and food.” Cooper v. CVS Caremark Corp., No. 10-331 (E.D. La., filed February 5, 2010). The named plaintiff, who claims she purchased an expired over-the-counter (OTC) medication from a CVS store, seeks to certify a nationwide class of persons who likewise purchased expired products and asks the court for injunctive relief and compensatory damages. The complaint alleges that the expired OTC medications are “adulterated” under Food and Drug Administration guidelines and that their sale violates the Food, Drug, and Cosmetic Act. The plaintiff also claims that expired OTC drugs, food and baby formula “are unmerchantable and unfit for ordinary use.”
A U.S. magistrate judge has sentenced to three years of probation the couple who owned the company that imported melamine-tainted pet food ingredients into the United States from China. Sally Qing Miller, a Chinese national, and her husband, Stephen Miller, were also barred from importing pet food ingredients and were each ordered to pay a $5,000 fine. According to a press release, no further restitution was required “in light of a $24 million settlement in a related civil suit reached in the U.S. District Court for the District of New Jersey.” Their company, ChemNutra, Inc. was ordered to pay a $25,000 fine. The Food and Drug Administration has reportedly estimated that 1,950 cats and 2,200 dogs died after eating the contaminated food in 2007. Sally Miller was quoted as saying, “I’m really, really sorry this happened. I hope through this tragic, unfortunate event, the whole industry can learn from us, from…
The Third Circuit Court of Appeals has upheld a district court’s decision not to allow a flavoring company to file cross claims in litigation between an insurance carrier and the company that supplied vanilla beans tainted with mercury to the flavoring company. The Travelers Ins. Co. v. Dammann & Co., Inc., No. 09-1225 (3d Cir., decided February 5, 2010). The flavoring company sought to hold the vanilla bean supplier liable under contract, tort and indemnification theories, and the district court held that the proposed cross claims were time-barred or failed to state a claim. The Third Circuit agreed. The flavoring company’s request to file cross claims occurred more than four years after it received the vanilla beans, and its breach of warranty claims were thus untimely under the Uniform Commercial Code. Because New Jersey law applied to the case, the appeals court then discussed at length why it believed New…
According to a news source, some 120 of those purportedly sickened by Salmonella-contaminated peanut butter and their attorneys should soon begin receiving a share of a $12 million Hartford Insurance Co. policy held by the Peanut Corp. of America. Those sharing the settlement filed claims by October 31, 2009, as part of the company’s bankruptcy proceeding. The outbreak reportedly took the lives of nine people and sickened 700 who apparently ate peanuts and peanut paste traced to a company plant in Blakely, Georgia. See The Columbus Dispatch, February 2, 2010.
A number of microwave popcorn workers and their spouses have reportedly filed a complaint against a flavoring company in a federal court in Illinois, alleging personal injuries, loss of consortium and wrongful death from exposure to the butter flavoring diacetyl. Barker v. Int’l Flavors & Fragrances, Inc., No. 10-48 (S.D. Ill., filed January 21, 2010). The workers were apparently employed by AgriLink, a microwave popcorn manufacturer; they claim that diacetyl exposure can cause the lung disease bronchiolitis obliterans. According to the complaint, the defendant misrepresented the chemical’s safety and hid research on its risks from users. The plaintiffs apparently allege negligence and products liability and are seeking compensatory damages, attorney’s fees and costs. See Mealey’s Food Liability, February 2, 2010.
