According to a news source, a New Jersey court has dismissed fraud-related claims filed against Denny’s Corp. alleging that the company failed to disclose the amount of sodium in its menu items. DeBenedetto v. Denny’s Corp., No. __ (N.J. Super. Ct., dismissed November 10, 2009). Additional details about the litigation appear in issue 312 of this Update. The company reportedly indicated in a statement that the suit was dismissed because the plaintiff failed to and could not establish a physical injury under state product liability law. The named plaintiff in this putative class action reportedly alleged that he had consumed Denny’s foods for more than 20 years and was shocked when he learned how much sodium was in his favorite menu items. While he did not allege any link between the company’s foods and his alleged high blood pressure, the plaintiff claimed that he would not have selected the high-sodium…
Category Archives State Courts
Connecticut residents have filed a putative class action in state court against several fast food companies alleging that they violated consumer protection laws by selling grilled chicken products containing a carcinogenic chemical without providing warnings. Delio v. McDonald’s Corp., No. __ (Conn. Super. Ct., Hartford Cty., filed October 21, 2009). They seek to represent a class of all individuals who purchased and ingested these products in Connecticut and allege that the defendants knew or should have known that PhIP is formed when chicken is grilled and that it “has no safe level for ingestion.” The named plaintiffs, who are represented by The Cancer Project, a Washington, D.C.-based nonprofit organization, seek warning signs, actual damages, punitive damages, and attorney’s fees. The complaint refers to scientific research on PhIP and notes that California placed it on its list of chemicals known to the state to cause cancer in 1994 and that the…
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.
The Center for Science in the Public Interest (CSPI) has filed a putative class-action lawsuit in a Connecticut court on behalf of an Arizona woman who allegedly had a severe allergic reaction from eating artificial chicken patties made with a Quorn Foods, Inc. fungus. Cardinale v. Quorn Foods, Inc., No. __ (Conn. Super. Ct., filed September 15, 2009). CSPI participated in another lawsuit raising similar allegations against the Connecticut-based company and Whole Foods Markets, Inc. in Texas, but those claims were apparently dismissed. According to CSPI, more than 1,000 consumers have contacted it to complain that eating foods containing the meat substitute, described in the complaint as “a proprietary processed, vat-grown, soil fungus, combined with flavorings, binders, and other substances,” causes nausea, vomiting, diarrhea, hives, difficulty breathing, or anaphylactic reactions. A CSPI press release characterizes the product as a “fibrous, proteinaceous paste.” The named plaintiff in the Connecticut litigation purportedly…
The Physicians Committee for Responsible Medicine (PCRM) has sued KFC Corp. and its parent Yum! Brands, Inc. in a California court, alleging that they have failed to comply with Proposition 65 (Prop. 65) by selling grilled chicken without warning consumers that it contains a substance, PhIP, known to the state to cause cancer. PCRM v. KFC Corp., No. __ (Cal. Super. Ct., San Francisco Cty., filed September 23, 2009). According to a news source, the allegations are nearly identical to litigation PCRM filed in 2008 against other fast-food restaurants. A court dismissed that complaint, citing the preemption of Prop. 65 claims by federal law which requires chicken to be cooked to food-safe temperatures. PCRM has reportedly appealed the court’s ruling, arguing that the food-safe temperature requirement is merely U.S. Department of Agriculture policy and that states traditionally govern public health and safety issues. KFC was not apparently included in the earlier…
A putative class action was reportedly filed in a California state court against Nestlé, alleging that the company falsely advertises its “Juicy Juice Brain Development Fruit Juice” as a product that will improve toddlers’ brain function. Plaintiff Alexis Farmer, who then dismissed the complaint without prejudice several days later, reportedly claimed that she purchased the company’s juice relying on labeling and advertisements stating that it contained DHA Omega-3, a “fatty acid especially important for brain development in children under two years old.” Farmer was seeking damages and injunctive relief; her complaint apparently alleged false and misleading advertising, unjust enrichment, fraud, and civil code violations. See Courthouse News, September 23, 2009. In a related development, Health Canada has apparently decided not to stop infant-formula manufacturers from claiming that DHA, in any amount, will support normal brain and eye development, particularly for children under two. The Canadian Food Inspection Agency asked the…
A California trial court has determined that the insurer of the nation’s largest seller of bagged fresh spinach must pay for its losses from the 2006 nationwide E. coli outbreak that led to a Food and Drug Administration (FDA) advisory against eating any fresh spinach. Fresh Express, Inc. v. Beazley Syndicate 2623/623 at Lloyd’s, No. M88545 (Cal. Super. Ct., Monterey Cty., decided August 18, 2009). The outbreak was ultimately traced to a different producer, and the insurer denied coverage. Following a bench trial, the court determined that (i) the produce company introduced sufficient evidence to establish that it committed “errors” within the policy’s meaning by failing, before purchasing spinach, to conduct a food safety audit of the field where it was grown to verify that the growers had complied with good agricultural practices; (ii) this verification of good practices compliance “was an integral and inseparable part of its safe manufacturing practices”;…
Illinois Attorney General Lisa Madigan has filed lawsuits against companies that make, market or supply açai berry products, touted as weight loss dietary supplements, charging that they are scamming consumers with aggressive marketing campaigns, prematurely billing their credit cards, not always supplying the product ordered, and making it nearly impossible to cancel once a “free trial” has been implemented. The product ads purportedly feature images of celebrities such as Rachel Ray, Oprah Winfrey, Mehmet Oz, M.D., Gwyeth Paltrow or Courtney Love, despite their alleged lack of a promotional contract with the companies. The complaints seek injunctive relief, restitution and civil penalties.
A California state judge has reportedly issued a tentative ruling on the styrene industry’s request to enjoin Proposition 65 (Prop. 65) regulators from listing styrene as a chemical known to the state to cause cancer. Styrene Info. & Research Ctr. v. OEHHA, No. 09-53089 (Cal. Super. Ct., Sacramento Cty., decided August 12, 2009). Further details about the litigation appear in issue 313 of this Update. According to a news source, Superior Court Judge Shelleyanne Chang found no “known” evidence that styrene is a carcinogen and that the designation would likely have a devastating and stigmatizing effect on the product’s use. Widely used in food packaging, styrene plastics are apparently crucial to the transportation and sale of strawberries, raspberries and blueberries, state industries worth $1.6 billion. California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed listing styrene as a Prop. 65 substance, which would require public warnings, based on “possibly…
South Carolina poultry production line workers have reportedly sued their employer, claiming they are not paid for the time they spend donning and removing safety gear. According to a news source, the complaint alleges that this can extend a worker’s shift by some 75 minutes each day. The employees also alleged that they are required to stand in line before clocking in to start their shifts so they can purchase the protective gear they need, such as gloves, hair nets, face masks, earplugs, and arm sleeves. Apparently, this gear is damaged regularly while in use, so the workers must buy the supplies at the worksite with a company debit card several times each week. The employer has reportedly countered that it “does not consider time spent in line for supplies and time donning and doffing the minimal gear as compensable time.” According to the company, which was recently indicted for…
