A federal judge in California has refused to dismiss a lawsuit claiming that General Mills, Inc. was misleading consumers about the healthiness and fruit content of its ‘Fruit Roll-Ups’ and ‘Fruit by the Foot’ product lines. A California woman, Annie Lam, sued the on grounds that a “reasonable consumer” might be confused by the products’ actual fruit content.

Lam alleged that the marketing claim “made with real fruit” incorrectly described the fruit snacks’ true ingredients.  She is, of course, wrong, because the products do actually contain real fruit.  A quick flip to the back of the product reveals that it contains “pears from concentrate.”  It may not be the fruit she wants, but technically, it is “real fruit.”  We here at Abnormal Use understand the vexing frustration of having to flip a box over and read the ingredient list, but give us a break on the federal court litigation, okay?

Judge Samuel Conti, however, clearly disagrees with us.  In his decision, he held that the packaging statements “might lead a reasonable consumer to believe that [the] product is made with real strawberries, not pears from concentrate.  The names ‘Fruit Roll-Ups’ and ‘Fruit by the Foot,’ along with the fanciful depiction of these products, which resemble fruit leather, may lead to further confusion about the Fruit Snacks’ ingredients.”

The suit, which now seeks class-action status, was filed with the aid of the watchdog group Center for Science in the Public Interest.  Although there may be a time and place for pursuing companies that are trying to pull a fast one on the general public, we must be honest and say that we don’t feel much sympathy when there’s a plainly visible nutrition and ingredient label on the side of the package.  In fact, those labels are required to be by law.   Furthermore, let’s be real here . . . who in their right minds believes that Fruit Roll-Up is healthy (or, at least, as healthy as “real fruit”)?

This week, for my triumphant return to the blogosphere, I’m not going to talk about the standard fare of “stupid plaintiff” this or “dumb product” that. Instead, I’ve got a positive message about ingenuity and the virtue of inspired product engineering. I’ve got a message about Bovinova.

For those of you that don’t know, Bovinova is a massive epicurean barbecue hosted right here in Greenville, South Carolina, and it happened not too long ago on May 19. The main event of Bovinova involves a whole cow (minus the head) which is slow-roasted over an open fire for 18 hours, all while a host of goats, pigs, lambs, llama, chickens, and turkeys are being cooked. This year, more than 700 guests were served more than 1,000 pounds of meat, which makes Bovinova the leading cause of acute food coma of any event in South Carolina, including Thanksgiving.

In any event, one of the coolest things about Bovinova is the engineering and design that went into the grilling apparatuses. Instead of roasting the animals rotisserie-style, they are secured to a grilling plane. There are only a few places in the world where whole animals are cooked this way, so there’s not a whole lot of institutional knowledge out there about how to design the grilling surface, how to support the weight of a suspended cow for a long period of time, and how to rotate the cow over the fire so that both sides get heat. Obviously, these are not insubstantial questions. If the grill is designed without these aspects in mind, the cow may fall into the fire, large portions of the cow may not be cooked properly, or worst, one of Bovinova’s patrons may get physically ill from the meat.

However, thanks to some forethought and a lot of planning, the team of guys who built the grill anticipated these concerns at the outset of the design stage and engineered their way into effective solutions. What resulted is a grilling system that makes your charcoal Weber look like an easy bake oven. The entire cow can almost effortlessly be pulled off the fire, flipped 180 degrees, and returned to the fire; it can also be elevated at an angle to allow fat to render more effectively. I’m not going to go so far as to say that this is a “set and forget it” type of assembly; but it’s pretty close. As a consequence of their exceptional craftsmanship, not only are the hosts of Bovinova able to stage the biggest, most unusual cookout you’ve ever seen, more importantly, they’re able to do it in a way that minimizes the risk of injury or liability.

And that’s why Bovinova is my new favorite holiday.

Alcohol retailers in Whiteclay Nebraska, a town with a population of 11 people, sold roughly of 4 million cans of beer in 2011.   How is this possible?   Whiteclay is located about 2 miles from the Pine Ridge Reservation of the Oglala Sioux Tribe in South Dakota.  Because of widespread problems with alcohol abuse among tribe members, Pine Ridge is an alcohol free reservation.  However, alcohol abuse problems persist in spite of the alcohol ban.  Tribal leaders blame the Whiteclay retailers for selling alcohol to tribe members who in turn illegally consume it on Pine Ridge or in the streets of Whiteclay.  The tribe has filed a lawsuit against the retailers in Whiteclay, as well as the breweries and distributors, requesting that the court prohibit them from selling alcohol to Native Americans.

Alcohol abuse is undoubtedly a serious problem for the Oglala Sioux Tribe.  As noted in the linked AP article, nearly a quarter of all children born on the reservation suffer from fetal alcohol syndrome or fetal alcohol spectrum disorder.  Moreover, the average life expectancy for tribe members is estimated to be less than 52 years, which is about 25 years shorter than for average Americans.  As such, the lawsuit seeks damages for health care costs and other alcohol-related problems on the Pine Ridge Indian Reservation.  The tribe also wants a judge to prohibit alcohol sales to Native Americans in Whiteclay.

It is certainly interesting that the Tribe has taken the position that alcohol retailers in Whiteclay should discriminate against Native Americans who seek to legally purchase their products.  One can assume that most of the alcohol sold is being illegally smuggled by the purchasers back onto the reservation for consumption.  But do the retailers, distributors, or manufacturers have a legal duty to ensure the products are consumed off of the tribe’s reservation?  And how far would such a duty extend?  If tribe members started driving to the next closest town, would that town’s retailers also be required to refuse sales to Native Americans?

The defendants in the case have moved for summary judgment.  However, if the case is allowed to proceed it has the potential for far reaching problems in the future for beer companies.  As one of the attorneys pointed out in the AP article, if the lawsuit is successful it could force the beer manufacturers to analyze the sales data of all of its distributors and retailers to ensure that none are selling a disproportionate amount if its product.   Small college towns come to mind as other places where the quantity of alcohol sold could likely far exceed the amount expected based on the number of residents who are of drinking age.

This certainly seems to be a hot button issue in Nebraska.  There’s even been a documentary about the retailers and the problems in Whiteclay.  You can watch it here.

Recently, the Associated Press reported that a New Zealand woman died as a result of a Coke habit. Hearing reports of someone dying because of coke is nothing new, but this time we aren’t talking about the powdery white stuff.  Rather, this time a woman has died after regularly consuming 2 gallons of Coca-Cola per day.

After the 30-year old mother of eight died of a heart attack in February 2010, an inquest was held to investigate the unusual death. According to the AP, pathologist Dr. Dan Mornin testified that Harris most likely suffered from hypokalemia caused by the excessive consumption of Coke (between 2.1 and 2.6 gallons daily) and overall poor nutrition.  Further, Dr. Mornin indicated that toxic levels of caffeine may have contributed to her death.  That, and the fact that she ate little and smoked 30 cigarettes per day.

While we have never thought of soda as necessarily healthy, we have also never considered it a killer. Even though this incident has earned our (and certainly the Coca-Cola Company’s) attention, we don’t expect Coca-Cola do be worried about any potential litigation. First, there are clearly factors other than mere ingestion of Coke at play here. Harris’ consumption was far beyond the realm of reasonable use. As Coca-Cola Oceania was quick to point out, even water can be dangerous in excessive amounts. Couple her excessive consumption with her poor appetite and pack-and-a-half per day smoking habit, and you have a recipe for disaster.

Second, the risk of heart attack after drinking two gallons of Coke daily is not a risk of which Coca-Cola has a duty to warn. The hazards of caffeine are well-documented. Therefore, it should go without saying that the risks of drinking a soda swimming pool should be open and obvious.

This incident is not about Coca-Cola, Pepsi, or any other soda manufacturer. This is about over-consumption and an otherwise unhealthy lifestyle. Even the fast food litigation has more merit than dragging a soda manufacturer into court after super-saturating oneself with the product.

We here at Abnormal Use love checking out product warning labels. Such labels, while serving a necessary purpose, can sometimes seem like a bit of overkill. Must we really warn that sleeping pills may cause drowsiness? Or, better yet, that a beach ball should not be used as a life saving device? The truth is that companies have a reason for these labels – to protect themselves from potential litigation even from the most over-zealous consumers.

We mention this as way of backdrop for an interesting situation that arose last week at The Heart Attack Grill in Las Vegas. According to Yahoo! News, a man recently suffered a heart attack while eating the Grill’s “triple bypass” burger. Fortunately, the man survived the attack, and by all accounts, should make a full recovery. While there is no indication of any potential lawsuits rising out of these events, we here at Abnormal Use had to question whether there could be.

While restaurants have been sued for causing obesity, we are not aware of any restaurants being sued for causing heart attacks. Obviously, the isolated consumption of a burger is not enough on its own to cause an attack. Eating similar foods, however, over a period of time can reek havoc on one’s arteries. Knowing as much, what should the Heart Attack Grill do to protect itself from future lawsuits?

To the restaurant’s credit, it has taken measures to provide adequate warning. If its name was not enough, a sign on its door warns that its food may be hazardous to your health. The Grill’s servers are known as “nurses” and its owner, “Doctor.” With menu items like the “triple bypass” burger and “flatliner” fries, customers should have fair warning the meal would not win the approval of “The Biggest Loser.”

It should be noted that while the restaurant jokingly warns its consumers, it also entices them with its slogan, “Taste worth dying for.” To make matters worse, anyone over 350 pounds eats at the restaurant for free. Unlike the lure of a forbidden fruit, however, a consumer must assume the risk before partaking in a butterfat milkshake. (Yes, it is on the menu).

While this may seem absurd, don’t be surprised to see a restaurant promoting unhealthy food show up on the litigation radar in the future. Fortunately for the Heart Attack Grill, no one can say they didn’t provide fair warning.

One would think that food poisoning, especially the serious E coli type, might not be that difficult to establish in litigation.  The plaintiff eats food, winds up shortly thereafter with difficult symptoms, rushes to the hospital for treatment, and to top it off, garners a diagnosis of E coli.  Relatively straightforward, right? Apparently, it’s not so simple in Florida.

In Colson v. Tampa Hotel-VEF IV Operator, Inc., 8:10-CV-9-T-30TBM, 2011 WL 5553840 (M.D. Fla. Nov. 15, 2011), the sole issue before the court on the defendant’s motion for summary judgment was causation.  Could the plaintiff, who claimed she contracted E coli after eating a tainted cheeseburger at a hotel, prove that the cheeseburger was, in fact, the culprit?

The answer: no. According to the Florida federal court, “[i]n food poisoning cases, while a plaintiff may establish causation by either direct or circumstantial evidence, courts have routinely found that a mere showing that a person became sick subsequent to eating food is insufficient.”  Instead, the plaintiff must provide some evidence that the food in question was actually contaminated or tainted, either through evidence of a food recall, evidence that others became sick after eating the same food, or that the food smelled or tasted funny at the time of consumpton.

So what did the Plaintiff argue in this case?  The court summarizes her case as follows:

Here, Plaintiff contends that she has presented sufficient evidence showing that she contracted E coli from consuming Defendants’ cheeseburger. First, she points out that she started to feel ill approximately twenty-two hours after consuming the burger, which is approximately within the accepted one to nine day incubation period for E coli. Second, Colson’s expert witness testified in his deposition that the cheeseburger was more likely than not the source from which Plaintiff contracted E coli. Asked to explain the basis of his opinion, Dr. Delaportas stated that since Colson “had a cheeseburger in the time frame of incubation, and that is more often the implicating food in these cases than not…I believe it’s more likely than not it was that cheeseburger. I cannot rule out other sources.” (Depo. Of Delaportes, 47-48). Based on this evidence, Plaintiff contends that she has presented sufficient evidence of causation in order to survive a motion for summary judgment.

The court didn’t buy it.

The plaintiff’s expert certainly didn’t help her out very much, testifying that while he believed that the cheeseburger caused her illness, he could not rule out other causes.  Thanks, doc.

In the end, without further proof of a causal link between the cheeseburger and the plaintiff’s E coli, the defendant’s motion for summary judgment was granted.

Religion has yet to become a central element in our product liability practice.  However, with the prevalence of religion in this country, there must be somewhere we can find a spiritual product liability claim.  Maybe Georgia?  Texas, perhaps?  Try New Jersey.

Recently, in Gupta v. Asha Enterprises, No. A-3059-09T2 (N.J. Ct. App. July 18, 2011), the Appellate Division of the New Jersey Superior Court affirmed in part and reversed in part a trial court’s grant of summary judgment in favor of an Edison, New Jersey restaurant that allegedly served meat-filled samosas to sixteen Hindu vegetarians.  As part of an India Day celebration in 2009, the plaintiffs placed an order at the Indo-Pak restaurant for vegetarian samosas, informing the restaurant that the food was being purchased for a group of strict vegetarians.  The restaurant filled the order and assured the plaintiffs that the food did not contain meat.  After consuming some of the samosas, the plaintiffs returned the remaining samosas to the restaurant and were advised that the food was, in fact, filled with meat.  As a result, the plaintiffs claimed spiritual damage and asserted a number of causes of action against the restaurant, including product liability and breach of express warranty.  The Court found prima facie evidence of an express warranty by the restaurant employees and reversed the grant of summary judgment as to that claim.  However, the Court affirmed summary judgment on the product liability claim, holding that, while the plaintiffs were supplied the wrong product, the food was safe, edible, and fit for human consumption.  Alas, religion and products liability remain divided.

As practitioners of the Swaminarayan principles of Hinduism,the plaintiffs believe that by eating meat they “become involved in the sinful cycle of pain, injury and death on God’s creatures, and that it affects the karma and dharma, or purity of the soul.”  While the food may have been physically safe, for the plaintiffs, meat is hardly fit for human consumption.

If the plaintiffs prevail on their express warranty claim on remand, the jury may have their hands full when calculating damages.  The plaintiffs are seeking compensation for emotional distress and economic damages in connection with a purification ritual they must now undergo to cleanse themselves.  According to Swaminarayan principles, the souls of those who eat meat can never go to God after death.  What dollar amount can be placed on eternal damnation?  After violating this principle, knowingly or unknowingly, the plaintiffs must travel to the River Ganges in Haridwar, Uttranchal, India to undergo a purification ritual which can last up to 30 days.  As the Court noted, in order to be awarded consequential damages, the damages must have been foreseeable at the time of the sale.  While that might not be the case with a fast food joint, perhaps a restaurant focusing on Indian cuisine could be charged with such knowledge.

In an increasingly pluralistic society, restaurants and manufacturers cannot reasonably be expected to produce their products in accordance with the plethora of religious principles.  However, there are some express statements here that will soon be litigated. We will have to wait and see what happens.

We recently reported here that a South Carolina family-owned tomato farm had sued the United States Food and Drug Administration (FDA) in South Carolina federal court in Beaufort, alleging that the agency was negligent in its issuing of a 2008 nationwide tomato recall.  Seaside Farm, Inc. v. United States, C.A. No. 9:11-cv-1199-CWH (D.S.C. May 2011).  The FDA issued that recall over fears that tomatoes were the source of salmonella contamination, though, ultimately, the outbreak was traced to a source other than tomatoes.  Well, another tomato farm has since joined in filing suit.

Law360.com reports that Williams Farms Produce Sales, Inc., which grows more than 500 acres of tomatoes in South Carolina and Florida every year, filed suit alleging that it lost $11 million as a result of the recall that later proved to be unnecessary.  The latest suit, which was filed less than one month after the Seaside Farm’s complaint, was filed in federal court in Charleston.  Williams Farms Produce Sales, Inc. v. United States, C.A. No. 2:2011-cv-1399 (D.S.C. June 2011).  Lexology.com reports hat the latest complaint includes causes of action of negligence, defamation, slander of title, product disparagement, unconstitutional taking, and violation of unfair trade practices law, for which the tomato grower seeks actual damages in excess of $11 million, special damages, compensatory damages, treble damages, attorneys’ fees, and costs.

These two lawsuits could be the firsts of many, and they certainly demonstrate that the amount of potential damages alleged against the FDA could be staggering.  MiamiHerald.com and FloridaFarmers.org have reported that Florida farmers estimated they lost $60 million as a result of the recall, and that national numbers could be $140 million or more.  They also report that previous attempts in 2008 to acquire voluntary compensation from the government to offset the losses failed, and as such, litigation was almost certain to follow.

A South Carolina family-owned tomato farm recently sued the United States Food and Drug Administration under the Federal Tort Claims Act  seeking to recoup damages it suffered from the 2008 nationwide tomato recall over fears of salmonella contamination.  Seaside Farm, Inc. of St. Helena Island filed suit in federal court in the U.S. District Court for the District of South Carolina.   The complaint alleges causes of action of negligence, violation of the takings clause, violations of the South Carolina Unfair Trade Practices Act, and defamation.  Seaside Farm, Inc. v. United States, C.A. No. 9:11-cv-1199-CWH (D.S.C. May 2011).

According to the complaint, Seaside Farm cooperated with and and assisted in all audits and inspections of its operation prior to the start of the tomato season in 2008 and passed all inspections.  Then, in June of 2008, “at the precise time when South Carolina tomatoes are coming to market, the FDA announced a national recall of all tomatoes in the U.S.” (See South Carolina news coverage of the 2008 recall here ).  The complaint goes on to say that the FDA “improperly assumed” that tomatoes were the source of the curent salmonella outbreak, though following the recall, the FDA ultimately conceded that tomatoes were not the source the salmonella contamination.  At that point, however, Seaside Farm says the damage was done.  It seeks compensation for loss of its property, in the form of its 2008 tomato crop, as well as other general and special damages.

The FDA Law Blog reports that though the FDA issued a nationwide warning in June of 2008 for consumers to refrain from eating tomatoes, later, certain types of peppers were identified as the likely culprit of the salmonella outbreak.  The FDA thus lifted its tomato ban, but not before significant damage was done.  There was significant fallout, with some predicting that litigation likely would most certainly ensue.   According to FDA Law Blog, statutory law directs the Government Accountability Office to submit a report to Congress that reviews “new or existing mechanisms available to compensate persons for general and specific recall-related costs when a recall is subsequently determined by the relevant agency to have been an error,” and that “considers models for farmer restitution implemented in other nations in cases of erroneous recalls.”  Such provisions may fall short of the expectations of small businesses like Seaside Farm, who took the brunt of the error.

We are pleased to announce that Selective Insurance Company of South Carolina was bold enough to write coverage for Phusion Projects, LLC, the company that formerly manufactured Four Loko as we once knew it.  Four Loko took all the hard work out of mixing alcohol and caffeine at the bar by combining the two in the  manufacturing process.  Yet Law 360 informs us Selective filed a DJ  action in Illinois to clarify that there are certain suits it will not defend, based on a defense that the policy was not in force when the “bodily injury” alleged in several lawsuits occurred.

There seems to be very little of interest (at least at first glance) in the declaratory judgment complaint other than what we have previously blogged about in a prior Four Loko related post.  Namely, Selective probably thought it was pretty safe (okay, somewhat safe) insuring this company since the beverage was merely a manufacturing of an aftermarket process.    Moreover, although a DJ is always a good idea, as it puts lawyers to work who were previously not occupied, it remains to be seen whether this DJ will be effective.  After all, Selective insured Phusion while it was manufacturing Four Loko and placing it in the stream of commerce.  The dates of bodily injury in these cases may not be determinative.  There certainly will have to be some scintillating discovery on dates of manufacture, lot numbers and dates of distribution before the lawyers reach the salacious details of surrounding the consumption of the Four Loko.

We don’t claim to be actuaries (Oh, that we had made that choice), but we would be interested to know from our legion of actuary readers how one would price products liability insurance for products such as Four Loko.  We imagine the underwriter would gather some documents and get some input from actuarial and legal departments and the following exchange takes place:

UW: So, what are the chances for a lawsuit coming into being here?  I mean, this seems to be a pretty safe product.  Caffeine.  Alcohol.  There’s some kind of tagline about “blackout in a can” that’s somewhat troubling though.

Actuarial: [Speaking unintelligible secret mathy language]

In-house Lawyer: [Wearing a polo shirt, chinos, and no socks] I would put our chances at being sued at greater than 90%.  Actuary, can you account for that in your pricing?

Actuarial: [Emitting a series of beeps]

In-house Lawyer: Don’t forget to account for the irresponsibility co-efficient of drunk young adults.

And eventually, a premium is settled upon that becomes a second-guessed business decision, and indirectly punishes innovation in the alcoholic energy drink market.  Perhaps this is a good thing.