Bony Turkey Not What You Reasonably Expect

We have all heard tales of foreign substances found in food products. Hams glazed with syringes, sandwiches with human skin as a condiment, and bread stuffed with dead rats, to name a few. In these situations, you may expect the unfortunate diner would want his day in court. But what happens when the defective food isn’t so glaring and gross? Better yet, what if the injury-causing substance found in the product is natural to the food itself? Recently, in Estate of Pinkham v. Cargill, Inc., 2012 ME 85 (Me. July 3, 2012), the Supreme Court of Maine offered its opinion on the issue – producers of food products are liable for injuries caused by any substance the consumer would not reasonably expect to find in the product.

At issue in Pinkham is a turkey sandwich made in the kitchen of Dysart’s Truck Stop and Restaurant in Maine.  Dysart’s utilized a boneless turkey product manufactured by Cargill, Inc. for its sandwiches.  The kitchen staff occasionally found pieces of bone in the Cargill turkey.  One night, the plaintiff, a line cook at the truck stop, consumed a turkey sandwich during a work break.  Immediately thereafter, he experienced a severe pain in his abdominal area.  Thinking he was having a heart attack , he was rushed to the hospital.  After some diagnostic testing, the plaintiff was found to have an “esophageal tear or perforation.”  Doctors found small, white cartilaginous fragments that appeared to be bone fragments at the site of the injury.  Thereafter, the plaintiff filed suit against Cargill, alleging that the turkey was a “defective or unreasonably dangerous” food.  The court granted Cargill’s motion for summary judgment, concluding that average consumers would reasonably expect to find fragments of bone, a naturally occurring substance, in turkey – even of the boneless variety.

In reaching its decision, the trial court had difficulty determining the proper test to evaluate a strict product liability claim for an allegedly defective food product – an issue undecided in Maine law since the enactment of its strict liability statute in 1973.  Traditionally, Maine utilized the “foreign natural” doctrine, which provides that there is no liability if the substance is natural to the ingredients.  The modern trend applies the “reasonable expectation” test, which provides that a manufacturer is liable for injuries caused by a substance which the consumer would not reasonably expect to find in the product even if that substance is a natural ingredient thereof.  The Court of Appeals held that the “reasonable expectation” test is consistent with the Restatement (Second) of Torts – from which Maine’s strict liability statute was crafted – and, thus, should be the law of Maine.  Finding that questions on reasonable expectations are to be left to the jury, the Court reversed the grant of summary judgment in favor of Cargill and remanded the matter for further proceedings.

Regardless of the test applied, there has to be some comparative fault in this case.  Even though the product was labeled “boneless,” the truck stop kitchen staff of which the plaintiff was a member had observed bone fragments in the product.  It probably should have been a red flag that this isn’t turkey worthy of a Thanksgiving dinner. On top of that, the turkey was served at a truck stop of all places. Any reasonable court should find as a matter of law that one assumes the risk of truck stop dining – or, at least that is what one would reasonably expect.