The multidistrict litigation (MDL) court before which cases alleging a failure to disclose the possible harmful effects of plastic bottles containing bisphenol A (BPA) have been consolidated for pretrial proceedings has granted in part and denied in part the plaintiffs’ discovery motion. In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., order entered May 26, 2010). The plaintiffs apparently sought to compel the disclosure of information relating to products other than plastic bottles, such as “plastic eating utensils, plastic plates and other food contact items,” and to non-health related information from more than five years before the lawsuit was filed. The court determined that it was too late to amend the complaint to include the manufacturers of the additional products, emphasizing that “this case was not intended to—and will not—become an all-encompassing ‘BPA case.’” The court also found that the burden on defendants of complying with these…
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A federal multidistrict litigation (MDL) court in Missouri has issued an order and opinion disposing of defendants’ motion that it reconsider its prior rulings refusing to dismiss some of the bisphenol A-related claims in the case on the basis of federal preemption and primary jurisdiction. In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., decided January 19, 2010). Details about the court’s prior ruling appear in issue 327 of this Update. The court also denied defendants’ motion to certify the issues for immediate interlocutory appeal. In its opinion, the court clarifies its holding allowing plaintiffs to proceed with their unjust enrichment claims, acknowledging that its prior holding may not have been clear. “The Court did not intend to suggest that all Plaintiffs automatically and necessarily have a valid claim for unjust enrichment. . . . [T]he Court cannot conclude that no purchaser can assert a claim…
According to a news source, a federal jury has awarded conventional rice farmers about $2 million in compensatory damages for the economic losses they allegedly experienced when European markets closed to U.S. rice imports that were found to be contaminated with genetically modified (GM) rice. In re: Genetically Modified Rice Litig., MDL No. 1811 (E.D. Mo., verdict reached December 4, 2009). The verdict was reached in the first bellwether cases to be tried. The next bellwether trial is apparently scheduled to begin in January and involves farmers from Arkansas and Mississippi. Defendant Bayer AG apparently indicated that it was pleased the jury did not award punitive damages and was preparing for the upcoming trials, which “will be different from these initial cases.” See Product Liability Law 360, December 4, 2009. In a related development, the MDL court has entered an order disposing of pre-trial motions related to the second bellwether trial. Among…
A multidistrict litigation (MDL) court in western Missouri has issued orders disposing of a number of motions in the dozens of cases transferred to it in litigation involving claims of fraud against companies that make baby bottles and sippy cups, reusable drink containers, and baby formula sold in metal cans lined with a substance containing bisphenol A (BPA). In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., orders entered November 9, 2009). The court has dismissed breach of express warranty claims and claims that depend on misrepresentations (as opposed to omissions) for insufficient pleading under Ashcroft v. Iqbal; and breach of implied warranty of fitness for a particular purpose. Remaining are claims for fraudulent omissions, violation of state consumer protection statutes, breach of implied warranty of merchantability, and unjust enrichment. The court denied defendants’ motion to dismiss on the ground of primary jurisdiction, which applies when a…
Multidistrict litigation plaintiffs who sued Aurora Dairy Corp., an accredited organic certifying agent and a number of food retailers have appealed the district court decision dismissing their claims to the Eighth Circuit Court of Appeals. In re: Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., MDL No. 08-1907 (E.D. Mo., appeal noticed July 2, 2009). As noted in the June 5, 2009, issue of this Update, the district court concluded that the claims, which involved allegations that Aurora Dairy sold its milk as organic while violating national organic program requirements, were preempted by federal law and regulations. In their list of issues on appeal, the plaintiffs question the validity of this determination.
According to a news source, a Las Vegas-based company and its co-owners have agreed to plead guilty to charges that they imported from China melamine-tainted wheat gluten used to make the pet food that purportedly sickened and killed thousands of cats and dogs in the United States and Canada in 2007. More details about the criminal indictments appear in issue 247 of this Update. ChemNutra, Inc. and its co-owners, Stephen and Sally Miller, have apparently reached an agreement with federal prosecutors and will enter their pleas during a June 16, 2009, hearing. The export broker, a Chinese company, allegedly mislabeled 800 metric tons of wheat gluten to avoid inspection in China and did not properly declare the contaminated product when it was shipped to the United States for use in pet food. ChemNutra took delivery of the wheat gluten in Kansas City and then sold it to various pet food manufacturers.…
The multitdistrict litigation (MDL) court in Missouri before which nearly 20 putative class actions against Aurora Dairy Corp., an accredited organic certifying agent and several retailers had been consolidated for pre-trial proceedings, has dismissed the lawsuits with prejudice finding that federal organic food laws preempt the claims. In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., MDL NO. 08-1907 (E.D. Mo., decided June 3, 2009). Relying on a U.S. Department of Agriculture (USDA) investigation that found the dairy in violation of national organic program requirements relating to pasturing and organic management, the plaintiffs alleged violations of various state consumer protection laws, breaches of express and implied warrantees, negligence per se, negligent misrepresentation, and unjust enrichment. The court discusses at length the program under which Aurora Dairy conducted its operations with the overall supervision and control of USDA. While the court found that the litigation claims were not expressly…
A federal magistrate in Colorado has consolidated two lawsuits that address whether Aurora Dairy Corp.’s insurers are required to defend or indemnify the organic dairy in a host of consumer class actions alleging that the company falsely certified its milk as organic. ACE Am. Ins. Corp. v. Aurora Organic Dairy Corp., No. 08-1236 (D. Colo., order entered May 20, 2009). The putative class actions, consolidated before a multidistrict court in Missouri, claim that Aurora’s milk products do not conform to organic standards, citing a U.S. Department of Agriculture report that purportedly found shortcomings in Aurora’s organic operations. Among other matters, the claimants seek disgorgement for unjust enrichment. Aurora sued Nationwide Agribusiness Insurance Co. seeking a declaration that the insurer was required to defend it in at least one of the pending class actions. The dairy also sued for bad faith, breach of contract and related claims. A group of insurers…
A federal court in Missouri has determined that Texas plaintiffs alleging injury from the contamination of conventional rice crops with genetically modified (GM) rice had no reasonable basis to join non-diverse defendants and thus denied their motion to remand to state court. In re Genetically Modified Rice Litig., MDL No. 1811 (E.D. Mo., decided March 24, 2009). The 34 cases at issue were transferred from Texas to the Missouri court along with some 200 others from four other states as part of a multidistrict litigation proceeding. Rice farmers allege that the GM rice contamination adversely affected the global market for their products. The Texas plaintiffs sued the GM seed rice company and its affiliates, citizens of states other than Texas, and also sued a Texas rice grower and his affiliated companies alleging that he negligently grew the GM rice and contaminated neighboring fields or sold them GM seed rice. Plaintiffs…
Plaintiffs in multidistrict litigation against Aurora Dairy Corp. over claims that its “organic” milk products do not meet federal certification requirements have reportedly filed an unopposed notice of voluntary dismissal requesting that the court dismiss Whole Foods Market Group, Inc. from the case without prejudice. In re: Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., MDL No. 08-1907 (E.D. Mo., motion filed December 13, 2008). While Whole Foods apparently did not sell Aurora’s organic milk, the company was named as successor-in-interest to Wild Oats, Inc., the chain acquired by Whole Foods in August 2007 and alleged to have sold the products. Whole Foods has reportedly argued that Wild Oats retained its assets and liabilities after the merger and has agreed to provide plaintiffs with discovery on that issue. According to plaintiffs’ counsel, “If, after that discovery, we agree with your analysis, we will move the court to strike Whole…
