New Jersey Snowmobile Case Provides Additional Commentary On “Reasonably Foreseeable Misuse”

Recently, we provided some commentary about an Alabama court’s interpretation of what is “reasonably foreseeable” with regard to the operation (or accidental operation) of a handgun.  As a quick reminder, that case involved a man who wound up shooting himself in the stomach because he carried his gun without any safeties engaged.  That court denied the gun manufacturer’s motion for summary judgment, buying the argument by the plaintiff’s lawyers that a gun manufacturer should have reasonably anticipated that a carrier of the derringer might need to fire the gun so quickly that “a pause to disengage the two safety features [of the derringer] would destroy the defensive advantage he was buying.” Today, we will continue our inquiry into what different jurisdictions perceive to be “reasonably foreseeable” in the products liability context.  Conveniently, this also continues another journey we seem to be on: the search for the stupidest plaintiff.

The case is Mohr v. Yamaha Motor Co., Ltd., A-5194-10T4 (N.J. Super. Ct. App. Div. July 19, 2013).  The plaintiff in this case lifted up the back of his friend’s Yamaha snowmobile–while the engine was running.  The track broke while the end was in the air and gave the plaintiff such a bad leg injury that the leg had to be amputated.

The plaintiff sued Yamaha on theories of products liability, “claiming that . . . Yamaha had failed to provide an adequate warning against lifting the machine while it was running.”  At trial, the jury found Yamaha liable for failure to warn.  There is some interesting commentary about the presence and adequacy of the warnings, but we find the issue of “foreseeable misuse” more interesting, in light of our recent Alabama gun case.  The court in this case provided some reminders about use and misuse under New Jersey law:

To prove that a product is dangerous and thus requires a warning, a plaintiff must address the issue of product misuse, either by proving that the product was not misused, or by proving that the misuse that occurred was foreseeable.  A defendant may still be liable when a plaintiff misused the product, if the misuse was objectively foreseeable.  The absence of misuse is part of the plaintiff’s case. Misuse is not an affirmative defense. Thus, the plaintiff has the burden of showing that there was no misuse or that the misuse was objectively foreseeable.
(internal citations and quotations omitted).  In this case, the court of appeals agreed that the misuse by the plaintiff was foreseeable.  First and foremost, as the court points out, the evidence submitted on the issue of foreseeability was entirely one sided; only the plaintiff provided any evidence on the subject.  That usually signals that the other side has conceded the issue, and therefore signaling to the court that there is “no genuine issue of material fact.”  As the Court pointed out:
In fact, in a colloquy with the court on the first day of the trial, defendants’ attorney essentially conceded that plaintiff’s misuse was foreseeable, and the judge restated his understanding that “as Yamaha’s counsel now states, there is no contention that this particular hazard or risk was not foreseeable.”
Still, it is interesting to hear the plaintiff’s argument.  First, the plaintiff presented expert testimony that it is common practice for snowmobile users to lift the machine while it’s running to perform cursory maintenance, as the plaintiff was doing on the day of his accident.  The experts also explained that handles attached to the rear of the machines were “invitations” to lift it, and that lifting it while the snowmobile’s engine was running was a “reasonably foreseeable use.” While we don’t agree that lifting a moving piece of machinery to repair it while it’s running is “reasonably foreseeable,” apparently, lawyers in New Jersey believe that a New Jersey jury would believe that argument.  That’s the only explanation we can think of.  Then again, we don’t have many snowmobiles here in South Carolina.

New Hot Coffee Case Filed In New Jersey

Here we go again. It’s another hot coffee case.

According to NorthJersey.Com, there’s a brand new McDonald’s hot coffee case brewing. (Apologies for that pun). Here’s the info:

A 54-year-old Florida man is seeking damages from McDonald’s Corporation in a lawsuit filed in Hackensack, claiming that he suffered serious burns from a spilled cup of hot coffee while dining at a McDonald’s in River Edge.

This is not the first time McDonald’s coffee inspired a lawsuit.

Francisco Rafael Borbolla said in the lawsuit that restaurant workers gave him a cup of coffee without properly securing the lid when he ordered breakfast at the Main Street eatery in August 2011.

Borbolla’s attorney, Rosemarie Arnold, said the coffee spilled all over Borbolla’s lap as he sat down at a table, causing him “horrendous” second-degree burns that required a trip to the emergency room at the Hackensack University Medical Center.

Arnold insisted on Monday that Borbolla’s lawsuit is not frivolous.

“This is a serious case involving lack of due care on the part of McDonald’s,” she said. “If the naysayers saw the burns on my client’s genitals, they would be speechless.”

Again, let’s not confuse the issue of severe burns with liability. Simply because the coffee in question may have caused injuries, it does not mean that McDonald’s is liable.  That is a mistake that many have made in discussing the infamous Stella Liebeck McDonald’s hot coffee case. We’ve not yet  read the complaint, but if the news report is accurate, then the Plaintiff, Mr. Borbolla, took the cup of coffee from a McDonald’s employee, presumably from the front counter of the restaurant, made his way to his seat, and then spilled the hot beverage on himself as he proceeded to sit down at a table. The liability case will focus extensively on that brief journey.

We’ll keep you posted on this one. Our favorite part of the article is the following sentence, which also serves as the tagline to the AP file photograph of a McDonald’s logo: “This is not the first time McDonald’s coffee inspired a lawsuit.”

A 54-year-old Florida man is seeking damages from McDonald’s Corporation in a lawsuit filed in Hackensack, claiming that he suffered serious burns from a spilled cup of hot coffee while dining at a McDonald’s in River Edge.

This is not the first time McDonald’s coffee inspired a lawsuit.

This is not the first time McDonald’s coffee inspired a lawsuit.

Francisco Rafael Borbolla said in the lawsuit that restaurant workers gave him a cup of coffee without properly securing the lid when he ordered breakfast at the Main Street eatery in August 2011.

Borbolla’s attorney, Rosemarie Arnold, said the coffee spilled all over Borbolla’s lap as he sat down at a table, causing him “horrendous” second-degree burns that required a trip to the emergency room at the Hackensack University Medical Center.
Borbolla, of Homestead, Fla., was in Bergen County at the time to visit family, his attorney said.

- See more at:

Subway Lawsuit: Like Football, It’s A Game of Inches.

As we’ve noted in the past (see, e.g., the Fruit Rollups Lawsuit), there’s seems to be a whole niche of the law now devoted to lawsuits over false claims and advertising relating to food.  Well add a couple more lawsuits to the list.  Lawsuits in New Jersey and Illinois are now challenging Subway’s “footlong” sandwich claims.   Plaintiffs have alleged that the Subway “footlong” sandwiches they purchased really measured in at just under 12 inches, and for that egregious injury, they have chosen to go to court.  Oh, the humanity!

Nguyen Buren, the Plaintiff in the Illinois lawsuit, alleges that he visited a Subway location in mid-January of this year and purchased a “footlong” sub sandwich that measured only 11 inches.  Notably, Mr. Buren’s complaint (which is on available on PACER – Buren v. Doctor’s Assocs., Inc., No. 13-498 (U.S. Dist. Ct., N.D. Ill., filed January 22, 2013)) alleges that he was deceived on that single occasion in January.  He filed the suit against Subway’s parent company, claiming a “pattern of fraudulent, deceptive and otherwise improper advertising, sales and marketing practices.”

Mr. Buren’s attorney equated the injury to buying a dozen donuts and finding only 11.  But that’s not quite the case.  The number of donuts is different from the size of the donuts.   As a recent Forbes article noted, baking bread is not an exact science.  As bread is baked, it rises and grows, but the growth is not  the same on every occasion.  The way bread dough grows depends on a number of factors, such as temperature, humidity, and cooking time.  Remember that we are talking about bread, not airplane parts.

You know what I’d do if I ordered a dozen donuts and got 11 donuts, or ordered a footlong sandwich and got 11 inches ?  I would go back and ask for a refund or a remedy of the situation.  Alternatively, I might stop eating at that establishment.   You’re buying a meal, not a compact car.  There’s no indication that Mr. Buren ever asked Subway to remedy his sandwich or asked for a refund.  But why go to such extremes when you can simply file a lawsuit over a sandwich short by one inch?

Given the obesity problem in this country, Subway would probably be doing us all a favor by giving us a little less sandwich.  I mean, who really needs a to be eating a foot long sandwich?   Nevertheless, Subway has pledged to remedy the situation.   According to a spokesperson, Subway will “redouble [its] effort to ensure consistency and correct length in every sandwich [it] serves.”  Next time you go to Subway, just remember to take your tape measure to be sure.  Good grief.

Baseball Bat Manufacturer Has Good Day in Court, At Last

Over the last few years, Hillerich and Bradsby, the manufacturer of Louisville Slugger baseball bats, has endured much litigation.  In 2009, a Montana jury awarded a family $850,000 after their son was killed by a ball struck by the aluminum bats.  Last month, the company settled the claims of a New Jersey teenager severely injured in a similar accident for $14.5 million.  The multi-million dollar settlement came on the heels of another $951,000 verdict from an Oklahoma federal jury.

Things weren’t looking too good for the bat manufacturer, to say the least.

In a twist of fate, however, an Oklahoma court tossed the $951,000 jury verdict just days after the massive New Jersey settlement.

The jury had awarded a 15-year old boy and his parents nearly $1 million after he was struck in the face by a line drive, causing severe facial injuries.  In reaching its decision, the jury determined that the aluminum bat was defective and unreasonably dangerous because it could hit a ball faster than its wooden counterparts – a condition for which Louisville Slugger failed to warn.  Moreover, it determined that the boy did not assume the risk of injury when electing to play baseball.

On Hillerich’s post-trial motions, the court held that there was “no basis for a reasonable jury to find that the bat had ‘dangerous characteristics.’” Certainly an aluminum bat can create increased bat speed, but does this necessarily mean it is more dangerous than its wooden counterpart?  As Forbes writer Dan Fisher, noted:

[T]he experts who testify about the supposedly dangerous characteristics of aluminum bats are talking about a relative scale. Fewer players would be injured if Little Leaguers used foam-rubber bats, but it doesn’t reasonably follow that manufacturers of wooden bats would then be liable for imparting “increased exit speed” to the ball.

Apparently, the plaintiff also never established that the bat - and not some other extraneous factor (i.e. a good hitter) - was to blame for the injuries.  As the judge noted, a “verdict may not be based on this kind of conjecture.”

The theory behind these Louisville Slugger suits is an interesting one.  Undoubtedly, an expert of some sort can testify as to the increased bat speed created by aluminum bats.  We imagine, however, that even a well-struck ball by a wooden bat could cause facial injuries.  The only way to prevent such injuries is to use baseball equipment manufactured exclusively by NERF.  Unfortunately, sport and injury often go hand-in-hand regardless of the equipment used.

The more intriguing question may be the tremendous discrepancy between the jury awards and the multi-million dollar New Jersey settlement.  While every case and jury is different, damages may not be the issue – the “smallest” verdict involved a child that was killed.  As Ted Frank at the  Point of Law blog notes:

The fact that Oklahoma caps noneconomic damages surely made a difference here: without the threat of jackpot justice, the defendant could defend itself without fear of disproportionate liability.

A factor, to be sure.

New Jersey Court: No Dice on “Innovator Liability”

A basic principle of products liability law is that liability follows the product in the chain of distribution. In other words, if the manufacturer did not make the product, it cannot be held liable.  But precedent and legal principles be damned, plaintiffs’ attorneys have been pushing a new theory of  liability called “innovator liability.” Under this theory, brand-name drug manufacturers (the “innovators”) may be liable for injuries to plaintiffs who only ingested generic versions of their drugs.  In other words, it requires brand-name manufacturers to answer for injuries allegedly caused by drugs they did not manufacture.  Sounds a bit ridiculous, right?  Fortunately, a New Jersey court recently said “no dice” to innovator liability in the case of Coundouris v. Wyeth, et al., No. ATL-L-1940-10, 2012 WL 2401776 (N.J. Super. Jun. 26, 2012) [PDF].

The plaintiffs  alleged that the brand-name defendants were liable for injuries caused by generic versions Reglan/metoclopramide.   Specifically, they alleged that that the defendants owed a duty to exercise reasonable care to adequately warn doctors and users about the risks of metoclopramide.  The defendants argued that under the New Jersey Products Liability Act (“PLA”), brand-name drug manufacturers could not be held liable for injuries allegedly caused by the use of a generic drug manufactured by another company. The plaintiffs asserted that their claims were not governed by the PLA and were instead negligence claims governed by common law.

The court concluded that the PLA governed the plaintiffs’ claims, noting that the focus of plaintiffs’ claims was the defendants’ failure to warn about metoclopramide’s dangers and that the state legislature’s intent was for such claims to fall under the PLA.  The court further noted that it is well-established that product identification (proof that the product that allegedly harmed the plaintiff is actually the defendant’s product) is an essential element of a plaintiff’s prima facie product liability action.  As such, the court held that the plaintiffs’ claims must fail under the PLA to the extent that the plaintiffs never ingested products sold or manufactured by the brand-name manufacturers.

The court’s  decision seems based on sound legal precedent and is in line with the decisions of other states that have evaluated the viability of innovator liability.  In case you’re counting home, so far California is the only state to adopt the theory of innovator liability.  It did so in the case Conte v. Wyeth, Inc., 168 Cal. App. 4th 89 (2008).  We’re every bit as shocked as you are that California would be on the outside looking on any legal issue (insert sarcasm here).

(Hat tip to John J. Sullivan at the Drug and Device Law blog).

WARNING: Don’t let your kid eat dog food.

There’s certainly nothing out of the ordinary about a contaminated food lawsuit.  Unless the food in question is dog food.  That’s exactly what went down May 25 when a New Jersey father filed suit against Diamond Pet Foods in federal court claiming his two month old infant was sickened by salmonella-contaminated dog food.  This lawsuit comes on the heels of Diamond’s May 5 pet food recall due to salmonella contamination. The lawsuit alleges that the dog food, manufactured by Diamond, infected the infant with a rare strain of salmonella infantis.  That’s the same  strain identified in another outbreak allegedly caused by Diamond’s contaminated pet food.  That instance is claimed to have sickened 15 people in 9 states.

One key question left unaddressed by the complaint is how the child was exposed to the allegedly contaminated dog food.  We can safely assume, since the child was only two months old, that he did not ingest the food on his own.  It would appear that the most likely culprit was a parent failing to wash his or her hands after handling the dog food.  As Diamond’s recall notice says, people can become infected with salmonella by handling contaminated food “especially if they have not thoroughly washed their hands after having contact with surfaces exposed to this product.”

Another key issue in this case is whether the Diamond pet food purchased by the plaintiff was even contaminated with salmonella.  Samples of the dog food purchased by the family were sent to a Monmouth County laboratory for analysis but did not test positive for salmonella.  The plaintiffs’ attorney has suggested that the contamination could have come from an earlier batch of Diamond dog food purchased by the plaintiffs.  However, the plaintiffs were supposedly buying Diamond’s dog food for months and neither of their two dogs became ill.

It should be interesting to see if the plaintiffs are able to convince a jury that there is causal connection between the illness and the dog food.  Either way, you know a pet food company is having a rough go of things when they are getting sued for making a human sick.

Call Ghostbusters . . . and give me my security deposit back!

Sometimes, we here at Abnormal Use feel like we’ve seen it all, as far as crazy lawsuits go.  However, every now and then, a lawsuit comes along that makes us do a serious double take.  This is one of those cases.  A New Jersey couple fled their rental home just one week after moving in and is now suing for the return of their security $2,500 deposit.  The reason?  They claim the home is haunted.

Apparently, Josue Chinchilla and his fiancé, Michele Callan, thought they rented Jersey’s version of the Amityville Horror house. They claimed to have heard bizarre sounds and seen flickering lights. The couple also alleges that a voice whispered, presumably in an ominous fashion, “Let it burn!”  But it gets better (or worse depending on your viewpoint). Chinchilla says that once, a “shapeless dark apparition” tugged at the sheets when he was in bed and grabbed his arm.  The couple left the home one week after moving in, though they had paid a full month’s rent along with the security deposit.

In prosecuting the suit, the plaintiffs hired two sets of paranormal investigators.  These supernatural detectives say something is amiss at the home but disagree whether Chinchilla and Callan are plagued by a “residual haunting or an active haunting.” Now that’s a battle of the experts. I wonder if Plaintiff’s counsel will be able to get these two qualified under Daubert?

The landlord, orthodontist Richard Lopez, counter-claimed against the couple for breaking the lease.  Mr. Lopez’s attorney, David Semanchik, said his client has been renting the house to tenants for more than 10 years and this is the first time anyone has claimed the house is haunted. He thinks Callan and Chinchilla can’t afford the rent and are using the ghost story as cover.

We have to wonder if Mr. Semanchik considered counter claiming for the plaintiffs bringing the ghosts with them to the property?

New Jersey v. Henderson: A Self-Critical Look at the American Judicial System

Late last week, the New Jersey Supreme Court introduced a revised standard for the admissibility of eyewitness identifications in criminal prosecutions. State v. Henderson, — A. 3d —-, 2011 WL 3715028 (N.J. Aug. 24, 2011). We here at Abnormal Use have not forgotten that we are products liability blawg. But the New Jersey court’s opinion deserves our consideration because it shakes the bedrock of the American judicial system.

Science occupies a strange place in American culture. By and large, Americans love science when the fruit of scientific endeavors yields technology that accommodates our lives. No one seriously questions the virtue of science insofar as we have acquired nearly absolute advantages in communications, defense, and health care. By contrast, Americans tend to hate science when we are forced to confront our personal or social beliefs. The most apparent of these tensions is in the conflict between science and religion. In the battle for supremacy, the ardent supporters of either science or religion typically charge their rhetoric with fire, brimstone, and fervor that would inspire even the most Southern charismatic preachers. In these debates, there is little room for rational discourse. Between these warring camps is the storied silent majority of Americans, not sure of what to think, who to trust, or what to believe.

We say all this to honor the intellectual courage and integrity of the New Jersey Supreme Court. Its opinion in Henderson will likely open a new front in the war on science; this time, a civil war within the American legal system. The Henderson opinion is 134 pages, and many of those pages detail scientific studies that question the usefulness of one of America’s most sacred institutions: the trial by jury. Make no mistake, New Jersey is not advocating that we abolish the jury trial; far from. But what New Jersey has done is to take the lead in forcing American legal scholars and professionals to ask ourselves, is there a better way? For decades, this question has been presented outside the formal structures of America’s governing institutions. New Jersey could have left it there. It chose not to; and now, Americans must examine our personal beliefs about jury trials in light of statistics and data. This will not be an easy self-critical analysis; in fact, it could very likely become a polarizing political issue. But if the effectiveness of the jury trial is questionable, as scientific research suggests, then better we address the matter sooner rather than later.

The narrow question in Henderson is whether there were appropriate safeguards in New Jersey to ensure that eyewitness identifications of criminal defendants had been validly obtained. As a matter of constitutional law, the United States Supreme Court had previously established a set of five factors to guide judges in passing upon the admissibility of eyewitness identifications. Manson v. Brathwaite, 432 U.S. 98 (1977). By subsequent opinion, New Jersey followed the United States Supreme Court’s lead. New Jersey v. Madison, 109 N.J. 223 (1988). These five factors were each intended to guage the subjective perceptions of eyewitnesses and to determine whether such witnesses could reasonably have made later identifications of criminal suspects (e.g., as from police line-ups). These factors were to be balanced against any evidence that the witness’s identification had been corrupted, inadvertently or otherwise, by suggestive comments or conduct by the police or other third-parties. Ultimately, the court used Henderson to refine this process and to clarify additional procedural steps.

To some extent, we are surprised that the court will continue to allow eyewitness identifications to be admissible at trial. In its opinion, the court states that “it has been estimated that approximately 7500 of every 1.5 million annual convictions for serious offenses may be based on misidentifications.” Furthermore, “of all investigative procedures employed by police in criminal cases, probably none is less reliable than the eyewitness identification.” The opinion cites the International Association of Chiefs of Police as the source of the preceding quote. If eyewitness identifications are not reliable, and they are actively causing wrongful convictions, we have to wonder whether they should be admissible at all. Perhaps it would be best to let eyewitness identifications go the way of polygraphs and confine such identifications to investigative tools.

But this is not why Henderson is important. More broadly, the court used Henderson to explore the scientific data and research regarding witness perception and memory. What it found was troubling. If there is any theme throughout the opinion, it is the court’s recurring statement that “memory is malleable.” What does this mean? To be blunt, it means that witnesses are generally not sure of what they saw, and they become less sure as time goes by.

This isn’t necessarily surprising. But consider this: the court relied on live-data studies from Sacramento and London for eyewitness identifications. The Sacramento studies involved roughly 500 people who were eyewitnesses to criminal conduct and participated in a later identification. Of the 500, 33 percent could not make an identification. Of the ones who did make an identification, 24 percent identified the “filler” (an innocent person in a police line-up). Of the ones who correctly identified the suspect, there was no data on whether the suspect was actually guilty of the crime committed. The London studies involved more than 2100 people. Of those, 41 percent could not make an identification. And of the ones who made an identification, 33 percent identified the filler.

The court also relied on controlled studies. In one study, the researchers sent an individual to have conversations of a few minutes each with store clerks. Five hundred clerks were involved, and they were not advised up front that they were participating in a study. Between two and 24 hours later, an undercover researcher would talk with the clerk about the individual they had had a conversation with and ask the clerk to pick the person out of a line-up. Seventeen percent of clerks could not identify the individual; of the ones who made an identification, 41 percent picked the filler. Perhaps more troubling, in some cases, the line-ups shown to clerks did not contain the individual they had talked with. In those cases, 36 percent of clerks still made an identification.

These problems with perception and memory are not limited to police line-ups. Research suggests they are more pervasive. In another experiment cited by the court, researchers asked participants in their study to watch a video of a car driving along a country road. The participants were first asked to estimate the speed of the vehicle. Then they were asked if they remembered seeing a barn in the video. There was no barn, but 17 percent of participants remembered seeing one.

The court also cited data from research that, not surprisingly, demonstrated how the way in which questions were asked-as in, the difference in the choice of even one word-substantially affected each witness’s perception and memory of the same event. When we apply the results of this research to the process of our judicial system, we have good reason to be concerned. Fact witnesses form the basis of any claim. But this research suggests that fact witnesses do not necessarily accurately perceive the facts they witness; and even if they do, over time, the recollection of the facts they perceived (as distinguished from the facts that happened) breaks down. Memory is malleable.

But wait; there’s more. Research further demonstrates that fact witnesses are not the only ones who experience misperception and corrupted memory. Jurors do, too. In another experiment cited by the court, researchers found that jurors (who obviously hear the same information) have different perceptions of the information heard, which leads them to have different recollections of the same set of facts.

To recap, let’s assume that an event happens in front of several witnesses. Research suggests that each of those witnesses will perceive different “facts” about that event. At trial, months or years after the event, each witness’s recollection of the “facts” perceived about the event will have changed. Each member of the jury will perceive different information about the testimony presented, and even that information will have changed by the time the jury gets to deliberation.

You must be asking yourselves by now whether there is any good news to come out of this. There’s not. It actually gets worse. If you’re wondering what the most important aspect of a juror’s decision-making process is, here’s your answer: research shows that the single most important factor for any given juror’s decision-making is whether he or she perceived a witness as “confident.” Assuming that jurors are trying to determine the truth of a matter, research demonstrates that jurors equate truthfulness with confidence. Therefore, juries are not deciding facts so much as they are deciding which witnesses are more confidently reporting the facts they perceived (whether those facts actually happened or not).

All this suggests that we may have something very, very wrong with our judicial system. Churchill famously quipped that democracy is the worst form of government except all the others that have been tried. Perhaps the same can be said about the American judicial system and the notion of trial by jury. However, we have to believe that the New Jersey Supreme Court intended its opinion in Henderson to spark a debate about how to craft a more perfect legal system. Let’s pray that the same intellectual courage and integrity that drove the court’s opinion will characterize the discussions that follow.

Religion and Products Liability Square Off in New Jersey

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.

New Jersey Sodium Lawsuit Dismissal Affirmed Yesterday

We’ve blogged in the past about the necessity of an actual injury to maintain a lawsuit, and just yesterday, the New Jersey Appellate Division again reminded us that there must be some damage sustained before the law will permit recovery. In DeBenedetto v. Denny’s, Inc., No. A-4135-09T1, 2011 WL 67258 (N.J. App. Div. Jan. 11, 2011) [PDF], the Plaintiff sued Denny’s under the state Consumer Fraud Act [CFA], alleging that the restaurant chain failed to disclose the high sodium content in his typical breakfast of ham, bacon, sausage, and hash browns. Although the Plaintiff framed the action under the CFA (ostensibly because neither he nor his purported class had any injury), the court affirmed a dismissal and stated that crux of the claim was products liability, and, therefore, there must be some injury alleged.

Avid readers our site might predict that we will spend the next few paragraphs poking fun at the Plaintiff’s attorney’s inability to properly frame the cause of action or to understand what the word “damage” really means. But today we take a different tack and offer some litigation planning tips to our friends in the plaintiff’s bar. It’s no secret that excess sodium in the diet is bad for you [PDF]. But like a lot of other ingredients, sodium has some benefits, like extending the shelf-life of food. However, sodium may head the way of the trans fat, as there is an increasing awareness and governmental pressure to force reduction of sodium in food.

DeBenedetto may merely have been a test case to see how the courts would react to such claims. Perhaps the courts would not have been so quick to dismiss the case if the evils of excess sodium had gotten some more media attention over the past ten years. Sodium can cause problems with blood pressure and kidney function, but because causation of high blood pressure is multifactorial, causation may be difficult to prove, even given an injury. Maybe a few years from now, in a different state, a consumer fraud action might be more tolerable. Or maybe there is some political aspiration. Perhaps Mr. Wolf, the Plaintiff’s attorney, sees himself as a future sodium czar, helping to craft some FDA regulations. There’s nothing like being in front of an issue to add credibility to a position.

Nevertheless, it would not surprise me if excess dietary sodium quickly became a mainline issue, and whether it means a future tort suit or some other kind of remuneration, I am hard-pressed to believe that this New Jersey suit doesn’t fit in to some other larger litigation plan.