Maine High Court Adopts Strict Liability Standard for Defective Food Products

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 not yet established which test to use when evaluating a strict liability claim for an allegedly defective food product under the state’s strict liability statute, 14 M.R.S. § 221. According to the court, before the statute was enacted, courts used a test similar to the “foreign-natural” doctrine when addressing an injury caused by a food product in an implied warranty of merchantability case. Under this doctrine, a food producer is generally not liable for anything found in the food product that naturally exists in the ingredients. An alternative test more recently applied by other courts is he “reasonable expectation” test, which provides that regardless of whether a substance in a food product is natural to an ingredient thereof, liability will lie for injuries caused by the substance where the consumer of the product would not reasonably have expected to find the substance in the product.

Evaluating the summary-judgment motion under both the traditional
“foreign-natural” doctrine and the more recent “reasonable expectation” test,
the trial court concluded that, because bone is naturally found in turkey and
because the average consumer would reasonably expect to find bone fragments
up to two millimeters in size in processed “boneless” turkey product
(which the physician had), the contents of the food bolus discovered in
plaintiff’s esophagus did not demonstrate that the product was defective, as a
matter of law.

Noting that the state’s strict liability approach was rooted in the Restatement (Second) of Torts, the supreme court observed that the Restatement comments define “[d]efective condition” in part as a product that is “in a condition not contemplated by the ultimate consumer.” The comments also define “[u]nreasonably dangerous”: “The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” According to the court, the reasonable expectation test is consistent with the Restatement comments.

Applying that standard, the supreme court ruled that the plaintiff
had provided sufficient evidence that an alleged defect in the boneless turkey
product he consumed might have caused his surgery-requiring injury, thus
creating a genuine issue of material fact as to whether the turkey product
caused the injury. One physician testified that he believed the injury was a
“perforation secondary to a foreign body,” and there was direct evidence of
the presence of the smaller pieces of bone or cartilage. While direct evidence
of a larger piece of bone had not been presented, the court thought a jury
could conclude that a larger piece of bone could have been in the turkey
product Pinkham consumed, but may have passed, undetected, from
Pinkham’s throat.

Whether a consumer would reasonably expect to find a particular item in a food product is normally a question of fact left to a jury. The court concluded that the trial court could not find as a matter of law that a food bolus containing one-to-two-millimeter bone fragments is not defective. “[W]hether a consumer would reasonably expect to find a turkey bone or a bone fragment large and/or sharp enough to cause an esophageal perforation in a ‘boneless’ turkey product is one best left to the fact-finder,” said the court.

SHB Partner Sean Wajert, a Philadelphia-based member of the firm’s Agribusiness & Food Safety Practice, posted a more-detailed version of this summary on his Mass Tort Defense Blog. For more information about this issue, contact him at swajert@shb.com or (215) 278-2594.