The Peanut Butter Products Liability Litigation Blues

As a defense lawyer, we are often place in the strange position of having to prove a negative. Sure, it’s supposed to be the plaintiffs’ burden to prove his or her case, and in theory, at least, everyone is innocent, er, not liable unless proven otherwise.

But we all know it doesn’t happen that way sometimes.

Take the recent case of the contaminated and recalled peanut butter. You remember all that, right? In 2007, ConAgra Foods peanut butter, marketed under the national brand Peter Pan and Wal-Mart store brand Great Value, were linked to several hundred cases of salmonella poisoning, and a massive recall was issued for the spreads. [Read more about that recall here.]

What followed this recall, dear readers? You guessed it! Massive amounts of litigation! So much, in fact, that it was all consolidated by the MDL Panel, at least for pretrial proceedings.

Since 2007, the slow wheels of justice have been turning. On March 23, the Northern District of Georgia ruled on ConAgra’s motion for summary judgment in In re ConAgra Peanut Butter Products Liability Litigation, 2011 WL 1060990 (N.D. Ga. March 23, 2011).

Not to get too graphic, but there are only a few ways to prove if a person has in fact contracted salmonella poisoning, or if they just have a nasty case of the stomach bug. You guessed it: they test one’s blood and other bodily fluids. The Court officially noted: “[T]hese samples are important in determining causation.” So, a number of plaintiffs stepped up to the proverbial plate and supplied samples. When some samples came up negative for salmonella poisoning, ConAgra moved for summary judgment based on lack of causation. Slam dunk, right?

Apparently not.

The Court denied the motion for summary judgment without prejudice because “without the plaintiffs’ individual medical records, it is unclear when the sample was taken and whether there is a scientific or medical explanation–other than another illness–for a negative test. Therefore, ConAgra is not entitled to summary judgment before individual discovery on plaintiffs’ medical records is complete.”

We’re not sure exactly what the parties have been doing for the four years since this whole thing started, but apparently, the plaintiffs have not been trying to gather medical records or retain experts to satisfy their burden. Nevertheless, the Court granted them additional time to hold ConAgra hostage – otherwise known as “satisfy their burden” – in these cases.