A California man has filed a legal malpractice claim against lawyers who allegedly failed to represent him adequately in his suit against fruit processor Townsend Farms, in which he claimed he contracted hepatitis A after eating the company’s Organic Antioxidant Blend. Durrell v. Taylor, Sullivan & Mondorf, No. BC667419 (Cal. Sup. Ct., Los Angeles Cty., filed July 6, 2017). In 2013, the U.S. Food and Drug Administration announced that it was working with the Centers for Disease Control and Prevention as well as state and local officials to investigate a multistate outbreak of hepatitis A and confirmed that 162 people had become ill after eating the product. In 2014, Durrell sued Townsend Farms in Yolo County, California, and his case was later consolidated with others in Los Angeles County. The complaint alleges that his attorney failed to respond to discovery requests or motions to compel, resulting in the levy of…
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Food & Water Watch, a consumer advocacy group, has filed suit against the U.S. Department of Agriculture (USDA) and the Food Safety and Inspection Service over the agencies’ denial of the group’s Freedom of Information Act (FOIA) requests asking for the names of companies that opted to participate in the New Poultry Inspection System (NPIS). Food & Water Watch, Inc. v. U.S. Dep’t of Agric., No. 17-1133 (D.D.C., filed June 9, 2017). USDA implemented the optional NPIS in an effort to reduce rates of foodborne illness attributable to chicken and turkey contaminated with Salmonella and Campylobacter. Food & Water Watch requested the identities of the companies that chose to participate in NPIS, but their FOIA requests were denied on the grounds that “the responsive records consist solely of confidential future business plans.” Alleging violations of FOIA, the plaintiff is seeking an order for disclosure of the requested records and attorney’s…
A Colorado federal court has dismissed a shareholder derivative action against Chipotle alleging the company’s officers and directors of food-safety oversight failed to take action to prevent outbreaks of foodborne illness. Gubricky v. Ells, No. 16-2011 (D. Colo., order entered June 7, 2017). The plaintiff claimed the defendants had failed to implement and enforce effective food-safety procedures, monitor compliance with food-safety laws or commit necessary resources to store audits and risk assessment after a series of foodborne illness outbreaks. The complaint further alleged that the board failed to take action or offer sick employees paid leave until 2015, seven years after the outbreaks began. In a shareholder derivative suit, plaintiffs must plead “with particularity” why demanding the corporate board to take corrective action would be futile, the court said, but the plaintiff failed to plead facts specific to each director establishing a “substantial likelihood of personal liability.” The plaintiff must…
The U.S. Supreme Court has denied certiorari in a six-state coalition's attempt to block enforcement of a California law requiring egg-production facilities to provide hens enough space to extend their limbs and turn around. Missouri v. Becerra, No. 16-1015 (U.S., denial of certiorari entered May 30, 2017). The rule affects private egg producers within each state, but the U.S. Court of Appeals for the Ninth Circuit found that this interest did not convey standing upon the states. Additional details on the circuit court's decision appear in Issue 623 of this Update. The high court also denied certiorari to Austin "Jack" DeCoster and his son Peter, who sought to appeal the prison sentences they received for their roles in a 2010 Salmonella outbreak that sickened thousands across the United States. DeCoster v. United States, No. 16-877 (U.S., denial of certiorari entered May 18, 2017). The men, former executives of Quality Egg…
The American Academy of Pediatrics (AAP) has announced new recommendations limiting the amount of fruit juice that children consume to reduce the risk of obesity and dental caries. Whole fruit is preferable to fruit juice for nutrition and healthy weight gain, the group stated, because 100 percent juice is mostly water, with small amounts of vitamins and minerals and no fiber. The recommendations further specify that infants should not have fruit juice at all during their first year, and toddlers should be limited to 4 ounces a day. AAP also recommends that juices be pasteurized to reduce the risk of E. coli, Salmonella and Cryptosporidium. Issue 636
The U.S. Department of Justice (DOJ) has obtained a consent decree against Valley Milk Products LLC prohibiting the sale of more than four million pounds of milk powder products and preventing the company from manufacturing the products in the future. U.S. v. All 50 pound high heat nonfat dry milk powder (Grade A), No. 16-0076, (W.D. Va., order entered March 17, 2017). DOJ seized dry milk and dry buttermilk products at the company’s Strasburg, Virginia, facility in November 2016 after FDA inspections found unsanitary conditions and confirmed samples of Salmonella and Listeria. According to the U.S. Food and Drug Administration, the Salmonella strains were “nearly identical” to strains found at Strasburg in 2010, 2011 and 2013, indicating “the existence of persistent/resident strain and harborage” of the bacteria at the facility. DOJ also alleged the products were “contaminated with filth” after inspectors found dark brown droplets forming on metal surfaces of…
A New York federal court has dismissed a putative class action against Chipotle Mexican Grill Inc. alleging the burrito chain violated the Securities and Exchange Act of 1934 by making material misrepresentations about the company’s response to food-borne illnesses linked to its stores. Ong v. Chipotle Mexican Grill, Inc., No. 160141 (S.D.N.Y., order entered March 8, 2017). The court has granted the plaintiffs, led by Metzler Investment GmbH and Construction Laborers Pension Trust of Greater St. Louis, leave to amend. Chipotle’s stock price dropped in 2015 after outbreaks of foodborne illnesses, including norovirus, E. coli and Salmonella, were linked to its stores. As a result, Chipotle profits declined by 95 percent in 2016 as compared to the year before. The plaintiffs alleged that Chipotle and three of its executives misled shareholders and the public in the statements and reports it released about the outbreaks, although Chipotle predicted poor performance in…
The widow of a Vermont man who died after eating rawmilk cheese allegedly contaminated with Listeria monocytogenes has filed suit against the manufacturer of the cheese, Vulto Creamery. Friedman v. Vulto Creamery LLC, No. 17-0283 (N.D.N.Y., filed March 10, 2017). Vulto issued a recall of its Ouleout, Miranda, Heinennellie and Willowemoc raw-milk cheeses in March 2017 after the U.S. Food and Drug Administration identified Ouleout as the source of a Listeria outbreak that began in September 2016. The complaint asserts that multiple people became ill or died after eating Vulto’s Ouleout. For alleged strict liability, breach of warranty, negligence and negligence per se, the plaintiff is seeking damages and attorney’s fees. Issue 627
The U.S. Food and Drug Administration (FDA) has denied a February 9, 2012, petition filed by the Center for Science in the Public Interest (CSPI) that requested “a performance standard of non-detectable as determined by the best available method of detection for Vibrio vulnificus in molluscan shellfish intended for raw or processed raw consumption.” Citing V. vulnificus as “the leading cause of seafood-associated deaths in the United States,” the petition notes that FDA already enforces a zero tolerance standard for V. vulnificus in ready-to-eat fish and a non-detectable standard of less than 30 most probable numbers per gram (MPN/g) for post-harvest processed shellfish. According to CSPI, the Food Safety Modernization Act directs the agency to set performance standards for significant foodborne contaminants. In rejecting the petition, FDA notes that other strategies—including state adherence to and federal oversight of control measures designed to manage V. vulnificus risk—have effectively reduced oyster-associated V.…
The Fourth Circuit Court of Appeals has upheld a lower court’s determination that the U.S. Food and Drug Administration (FDA) had the discretion to issue an incorrect contamination warning about Salmonella-tainted tomatoes, which devalued a tomato farmer’s crop by $15 million. Seaside Farm v. United States, No. 15-2562 (4th Cir., order entered December 2, 2016). Details about the lower court’s decision appear in Issue 588 of this Update. The lawsuit stemmed from FDA’s warning against eating raw tomatoes in 2008 following an outbreak of Salmonella that was later traced to jalapeno and Serrano peppers. Seaside Farm filed suit alleging FDA negligently issued the warning, impairing the value of its crop. The trial court found that FDA was acting within its discretion to issue the warning. Seaside argued that FDA’s warning was overly broad and based on insufficient evidence, noting that the agency failed to test any tomatoes before issuing its…
