A California appeals court has determined that canned tuna sold in the state does not need a mercury warning label under Proposition 65 (Prop. 65) for reproductive toxicity because the mercury is naturally occurring and thus falls within a Prop. 65 exemption. People ex rel. Brown v. Tri-Union Seafoods, LLC, No. A116792 (Cal. Ct. App., decided March 11, 2009). A trial court ruled in 2006 that the labels were not required because (i) federal law preempts state action on methylmercury in fish; (ii) the trace levels of mercury in canned tuna were too insignificant to require warnings; and (iii) the mercury is naturally occurring. Further information about that ruling appears in issue 170 of this Update. The appeals court specifically considered and based its ruling on the last basis for decision only, finding that substantial evidence supported the trial court’s determination as to the source of mercury contamination in fish.…
Category Archives State Courts
ConAgra Foods, Inc. has reportedly filed a lawsuit against its umbrella insurer, seeking coverage for the claims that were filed by people who alleged injury from a Salmonella outbreak in 2007 linked to the company’s Sylvester, Georgia, peanut butter processing facility. ConAgra Foods, Inc. v. Lexington Ins. Co., No. 09C-02-170 (Del. Super Ct., New Castle Cty., filed February 19, 2009). The complaint alleges that Lexington Insurance Co. has failed to pay for any of the 2,400 claims settled or resolved to date. ConAgra reportedly anticipates an additional 20,000 cases from the outbreak. According to a news source, the company is seeking a declaratory judgment, compensatory and punitive damages, interest, and attorney’s fees. See Product Liability Law 360, February 24, 2009.
Video footage of former Aviagen Turkeys, Inc. employees allegedly abusing birds has reportedly led to criminal indictments for animal abuse. The People for the Ethical Treatment of Animals (PETA) apparently caught three turkey farm employees in the act, and 19 counts, including 11 felony charges, for cruelty to birds have been brought against them. Alabama-based Aviagen Turkeys reportedly fired all three workers for violating company policy. They could face significant jail time and fines if convicted. See meatingplace.com, February 9, 2009.
A federal inspector who alleged that he was injured after coming into contact with an air compression machine used to harvest pig brains in a pork processing plant has apparently agreed to dismiss his claims. Kinney v. Hormel Foods & Quality Pork Processors, No. __ (Third Jud. Dist., Minn., claimed filed January 2009). Dale Kinney, a U.S. Department of Agriculture inspector, reportedly sought $50,000 in damages for injury allegedly caused by his proximity to a machine that has purportedly been linked to neurological illness in some employees. According to a news source, a state court judge entered an order dismissing the suit with prejudice. A Hormel spokesperson reportedly said, “We were pleased to receive notification that the plaintiff offered to drop the suit and that the case was dismissed.” See Meatingplace.com, February 9, 2009.
The U.S. Supreme Court has denied a petition seeking review of a California Supreme Court ruling that allowed plaintiffs to pursue putative class claims alleging that grocery stores failed to inform California consumers about the artificial coloring used in the farm-raised salmon they sold. Albertson’s Inc. v. Kanter, No. 07-1327 (U.S., certiorari denied January 12, 2009). The retailers had asked the Court to find the claims preempted by the Food, Drug, and Cosmetic Act. The case should now proceed to trial. Food and Drug Administration regulations allow salmon farmers to augment the normally grayish pigment of farm-raised fish with chemicals, but also require that the use of coloring be indicated on product labels. Federal law does not allow individuals to enforce the law through litigation, but it does not, according to attorneys involved in the case, bar civil lawsuits for violations of state law. The litigation was brought on both federal and…
A California appeals court has determined that a misreading of prior case law led a trial court judge to erroneously overturn a jury verdict in favor of a plaintiff who alleged that she was made ill from exposure to campylobacter at defendant’s restaurant. Sarti v. Salt Creek Ltd., No. G037818 (Cal. Ct. App., 4th App. Dist., Div. 3, decided October 27, 2008). So ruling, the court reinstated $725,000 in economic damages and $2.5 million in noneconomic damages and allowed the plaintiff to recover her costs on appeal. The trial court granted the defendant’s motion for judgment notwithstanding the verdict, after determining, under a heightened causation standard, that reasonable inferences alone cannot prove a food poisoning case. The appeals court exhaustively analyzes the court’s reasoning in Minder v. Cielito Lindo Restaurant, 67 Cal.App.3d 1003 (1977), and shows how the court in that case misread prior case law “to preclude the use…
A microwave popcorn consumer who allegedly developed a lung injury from her exposure to diacetyl, the chemical responsible for the butter flavoring in the product, has sued popcorn manufacturers, retailers and flavoring companies in a Missouri state court, alleging product liability and negligence. Khoury v. ConAgra Foods Inc., No. 0816-CV31620 (Jackson County Circuit Court, Missouri, filed October 10, 2008). Represented by plaintiffs’ lawyer Kenneth McClain, who brought diacetyl-related litigation against employers on behalf of exposed workers with bronchiolitis obliterans and has also sued cigarette manufacturers on behalf of sick smokers, the plaintiff alleges that defendants failed to warn consumers that inhaling the “buttery aroma of Act II” microwave popcorn could cause respiratory damage.
A California jury has reportedly awarded an organic farm in Santa Cruz $1 million for the contamination of its edible herbs by pesticides applied on neighboring farms. Jacobs Farm/Del Cabo v. W. Farm Serv., Inc., No. ___ (Cal. Dist. Ct., Santa Cruz Cty., September 29, 2008). Pesticide drift from aerial spraying allegedly made it impossible for the plaintiff to sell large portions of its sage, rosemary and dill harvests in 2006 and 2007. The defendant, a pesticide application company, has reportedly indicated that it intends to appeal the verdict; a spokesperson was quoted as saying that the verdict “raises concerns about future use of organophosphates in California.” The company apparently claims that it followed all product labeling standards and county agricultural permits when it applied the pesticides and that decisions about the uses and risks of pesticides should rest in the hands of government regulators and not juries. The company also…
Identifying themselves as “observant Jews,” three named plaintiffs have filed a putative class action lawsuit against a hot dog producer in Cook County, Illinois, alleging that its 100 percent beef claims breach an express warranty, violate the Uniform Commercial Code’s provisions on conforming goods, and constitute consumer and common law fraud. Gershengorin v. Vienna Beef, Ltd., No. 06CH25277 (Cook County, Illinois, filed Nov. 20, 2006). According to the complaint, “Vienna Beef knowingly omits informing the consumer public that Vienna Beef is using pork intestine as casing for its Natural Casing Beef hotdogs.” The plaintiffs, who claim they have been injured emotionally by the company’s fraudulent advertising campaign, are bringing the action on behalf of all U.S. residents who consumed a “Natural Casing Beef” hot dog manufactured by Vienna Beef that actually contained pork intestine casing. The complaint asserts that questions of law and fact common to the class members include…
After a two-month trial, San Francisco Superior Court Judge Robert Dondero late last week ruled that California cannot require the manufacturers of Chicken of the Sea, StarKist and Bumble Bee tuna to warn consumers that their products contain mercury and mercury compounds. California Attorney General Bill Lockyer filed the lawsuit in June 2004 under the state antitoxics law Proposition 65, which requires businesses to warn the public about exposure to chemicals “known to the state to cause cancer or reproductive toxicity.” The law does not apply to chemicals that occur naturally in food. Press reports indicate the court ruled that (i) Prop. 65 is preempted by a March 2004 Food and Drug Administration joint consumer advisory on methylmercury in fish and shellfish; (ii) low levels of mercury contained in tuna products do not merit warnings; and (iii) tuna is exempt from Prop. 65 requirements because mercury in fish is naturally occurring.…
