A New Jersey women got the age-old saying a bit wrong and instead of an apple a day, consumed a can of tuna per day for 12 years, resulting in severe mercury poisoning. As a result of her injuries, she asked the United States District Court for the District of New Jersey to find the manufacturer of canned albacore tuna liable for “canning and distributing albacore tuna containing harmful mercury compounds, while failing to warn and disclose the harms associated with the mercury contained in its albacore tuna products.” Fellner v. Tri-Union Seafoods, LLC, No. 06-0688, 2010 WL 1490927 (D.N.J. Apr. 13, 2010).
Defendant moved to dismiss the action on the grounds that (1) Plaintiff’s claims under the New Jersey Consumer Fraud Act (“CFA“) were subsumed by her claims under the New Jersey Products Liability Act (“PLA“), (2) Plaintiff had failed to state her claims with sufficient particularity, (3) Defendant had no duty to warn, and (4) public policy considerations warranted dismissal of the action. The Court granted Tri-Union’s motion on the first ground, but denied on the other grounds.
Plaintiff, Deborah Fellner (“Fellner“), consumed approximately one can of Chicken of the Sea albacore tuna products per day for approximately 12 years. As a result, Fellner “contracted severe mercury poisoning and suffered extreme physical and emotional injuries.” Fellner then brought this action against Tri-Union Seafoods, LLC (“Tri-Union”) who manufactures, processes, tests, cans, markets and sells tuna products. Fellner asserted claims against Tri-Union under the PLA, the CFA and for punitive damages based on their failure to warn about the presence of mercury in their tuna products.
On Tri-Union’s first ground, the Court agreed with Tri-Union that Fellner’s claims under the CFA are subsumed by the PLA because the mere fact that Fellner sought economic damages to reimburse her for the cost of the product, did not negate the fact that her underlying claim was that the tuna was defective. A contrary finding would nullify the intended purpose of the PLA to “unify products liability causes of action into a single claim.”
Tri-Union’s second ground for dismissal was that Fellner failed to sufficiently plead her claim under the PLA. The Court first recognized that there is a rebuttable presumption that warning labels are not required where the company is in compliance with FDA requirements. However, this presumption can be overcome in the appropriate circumstances. Tri-Union asserted that Fellner could not rebut this presumption with her allegations that Tri-Union “concealed, suppressed, omitted, and/or failed to disclose material information regarding the presence of methylmercury and/or other harmful compounds in its Tuna Products.” The Court disagreed and found that, although Fellner’s pleadings were minimal, they were sufficient to survive a motion to dismiss as if accurate, could potentially rebut the presumption of the warning’s adequacy.
Tri-Union’s third ground for dismissal was that it had no duty to warn of the potential danger of mercury in its tuna products. Tri-Union first argued that the dangers of mercury are obvious, operating as a complete defense to a failure to warn action. The Court found that level of consumer knowledge was relevant but that this determination could not be made at this stage of the pleadings. Next, Tri-Union argued that Fellner misused the product by consuming the product in “abnormal” quantities and, therefore, the danger caused by such misuse was unforeseeable. The Court again found that while her consumption may be relevant, this determination could not be resolved on a motion to dismiss. Finally, the Court rejected Tri-Union’s argument that since mercury is naturally occurring, no warning was necessary. The Court stated that this was not a per rule.
Tri-Union’s final ground for dismissal was a public policy argument that permitting Fellner’s claim would reduce the consumption of health quantities of fish. The Court disagreed and stated that there was no indication that warning labels regarding mercury content would cease consumption of fish at healthy levels.
The Court’s ruling merely dismissed Fellner’s claim under the CFA but allowed her claim under the PLA for failure to warn to move forward. Therefore, it would be in the jury’s hands whether the dangers of consuming approximately 4,380 cans of tuna was knowledge a typical consumer possesses and whether this level of consumption was an unforeseeable misuse.