E. Coli Plaintiffs Seek to Certify Two Classes
Plaintiffs who brought personal and economic injury claims against Topps Meat Co. for an E. coli outbreak that led to the recall of more than 20 million pounds of ground beef in 2007 have filed a motion for class certification. Patton v. Topps Meat Co., No. 07-654 (W.D.N.Y., motion filed October 15, 2009). While the proposed classes, a “consumer class” of persons who purchased ground beef subject to the recall and allege economic losses and an “injury class” of persons who consumed the ground beef and allege personal injury, are national in scope, the plaintiffs contend that New York law will apply to the case.
According to the named plaintiffs, each of whom was allegedly sickened by consuming contaminated meat, federal investigators confirmed 40 E. coli cases linked to the outbreak strain and estimate that for every reported case, 20 cases go unreported. Thus, they suggest that the number of injury class members could be as high as 800 and, with hundreds of thousands potentially members of the consumer class, argue that the class mechanism would be the most economical and efficient way to adjudicate the claims. They also argue that recovery against Topps, which declared bankruptcy, is limited to about $11 million, representing the available insurance proceeds, and claim that certification under Rule 23(b)(1)(B), for limited fund class actions, would be appropriate. The litigation includes a number of nationwide retailers, but the plaintiffs acknowledge that “a jury could assess all liability to Topps.”
Plaintiffs attempt to bolster their argument as to the suitability of the class-action device by noting that the case involves a single product, a single manufacturer and confirmation that at least some of the product was contaminated and caused injury. They also claim that the proposed classes are readily identifiable and “depend solely on existing, objective facts; whether a person purchased recalled frozen ground beef products and whether a person is claiming injury from consuming these products.”