Peppermint Pattie: with or without insect larvae? Which would you choose?

Hopefully your answer to that question was without; however, for one consumer in Tennessee, she was a little too late to make that choice. Recently, the United States District Court of Tennessee was asked to decide whether the manufacturer, distributor, and retailer of a peppermint pattie was liable to a consumer who bit into candy which was infested with insect larvae. Gentry v. The Hershey Co., No. 2:08-0123, 2010 WL 457538 (M.D. Tenn. Feb. 3, 2010).

While Kim Gentry was shopping at Petco Animal Supplies, Inc., she picked up a York Peppermint Pattie that was for sale and bit into it. I know what you are all thinking: Yes, it is another issue that candy is sold at Petco and that people eat it in the store. After Ms. Gentry discovered that there was larvae inside the candy, she was treated for food poisoning. Since the event, she had undergone psychological counseling. Gentry filed a lawsuit against the manufacturer, The Hershey Company; the distributor, Liberty Distribution, L.L.C.; and the retailer, Petco, for strict liability, breach of implied and express warranties, negligence, and negligence se.

All three defendants filed motions for summary judgment. The Court considered Hershey’s and Liberty’s motions together, finding in favor of Hershey and Liberty on all causes of action. The Court found no evidence that the candy was in a defective condition or unreasonably dangerous when in the possession of Hershey or Liberty, relying on the opinions of all the experts in the case, which found that the pattie was contaminated while in the possession and control of Petco. Petco did not submit an expert to the contrary. Further, the Court stated that Liberty could rely upon the closed container doctrine because it received the pattie in a sealed corrugated cardboard box, stored it in a temperature-controlled environment, and had no ability to inspect the patties.

On Petco’s motion for summary judgment, the Court agreed with Petco on Gentry’s negligence per se claim as Gentry did not point to any statutory provision other than those under the Federal Food, Drug, and Cosmetic Act and Tennessee Food, Drug, and Cosmetic Act, which have been held to have no private action attached. The Court also found that Petco was not liable for strict liability because the applicable statute in Tennessee only permits a strict liability action against a seller when the seller is also the manufacturer or when the manufacturer cannot be located or is insolvent.

On the other hand, the Court found that it would allow Gentry’s breach of implied warranty claim to go to the jury reasoning that even though Gentry bit into the candy before she purchased it and even though Petco was primarily a merchant of animal food, nevertheless there was a “sale” and Petco was a “merchant.” Accordingly, Gentry’s claim fell within the applicable warranty statute. Finally, the Court found that there was an issue of fact with respect to Petco’s use of the sealed container doctrine as a defense to Gentry’s negligence claim. The Court found that there was a question whether Petco had a reasonable opportunity to inspect the candy before it was consumed by Gentry as the doctrine is not intended to protect a “seller from all liability to the consumer when the seller causes or allows the product to become adulterated.”

This case again shows the importance of expert testimony, as the use of expert testimony was instrumental in absolving Hershey and Liberty from strict product liability. As a result of this decision, Ms. Gentry will be able to present her case on implied warranty and negligence to a jury.