Wouldn’t it be great to be incarcerated in the state prison system? I imagine that it would lend a great deal of structure to my day, and I could file my lawsuits for free. Perhaps some court would write about me in an opinion. Instead of identifying me by name, the court would simply start the opinion with “Plaintiff is incarcerated at Ironwood State Prison . . . .” Alas, Walter Brown, Jr. was so lucky, as shown in Brown v. Summerset, No. C 09-04764, 2010 WL 3154538 (N.D. Cal. Aug. 9, 2010).

Brown filed a products action based on the peanut products recall in 2009. Apparently, Summerset, the menu coordinator for the state prison system, also tried to punish Brown by providing him with “spoiled beef and textured vegetable protein tacos.” (This and other tidbits are available in the Complaint, which is Document 1 in the case easily found on PACER.) Although the complaint describes the injuries suffered, I’ll spare you most of the details, only to say that Plaintiff complained of an intestinal ailment that he described as “watery.”

Brown must have spent much of his time in prison studying law, as he stated claims for negligence, strict liability, warranty, and even intentional infliction of emotional distress. Brown did an excellent job pleading facts to get past Iqbal and Twombly. He alleged that the “Plaintiffs believed they would succumb to their sickness” and that the Peanut Corporation of America knowingly distributed tainted food. He also alleged damages of at least $35 million, ensuring that he would meet the amount in controversy requirement.

But woe to Brown, that in all of his legal study, the seminal case of Strawbridge v. Curtiss eluded him, and his suit was doomed from the start when he sued Ms. Summerset, a fellow California citizen, thereby destroying complete diversity among the parties. Judge Armstrong went the extra mile, even addressing whether federal question jurisdiction was available. Indeed it was not. Brown’s claim, being dismissed, may be re-filed in California state court, where it will be much harder for me to find and read his complaint on the internet. Good luck, Mr. Brown. May your next meal of beef and textured vegetable protein tacos be more appetizing.

Abnormal Use does not want to be accused of failure to warn, so here’s your warning: you might not want to read this post right after lunch. The FDA has issued a warning on the use of frozen mice sold for reptile food. (You may recall that we mentioned this very briefly in a previous Friday Links post, but you must have thought we were kidding.). Now, before you use your mouse to click directly out of Abnormal Use for the day, you might want to keep reading.

The contaminated mice, sold by Biggers and Callaham LLC, doing business as MiceDirect, may be contaminated with salmonella, a nasty little bacteria that can cause some very unpleasant symptoms. The FDA is warning those with compromised immune systems not only to avoid handling the rodents themselves, but also to avoid handling any reptiles who may have already consumed contaminated rodents. Some people have already reported symptoms.

So, if anyone in your family likes to cuddle with snakes, you might want to stop that practice. We think that might be a good idea generally, but even more so now.

As we recently reported here, this summer the Kellogg Company voluntarily recalled boxes of its Corn Pops, Honey Smacks, Froot Loops, and Apple Jacks due to “an off-flavor and odor” emanating from the cereal. We can’t believe that Toucan Sam, who always seems to be bragging about his nose, missed those foul-smelling boxes.

The FDA recently provided an update on the recall, explaining that the culprit causing the bad smell and taste appeared to be the wax paper liners in the boxes. According to the FDA, only about 50 reports of the foul smell were reported, and no one sustained a serious injury. One of the question-and-answer notes in the update caught our eye:

Are Waxed Papers Legal and Safe to Use in Food Packaging?
Yes, but only when they are manufactured and used in compliance with Federal Food, Drug and Cosmetic Act requirements and FDA regulations.

It comes as a reminder that the FDA does not only regulate the food on our shelves, but also its packaging, known in government-speak as “Food Contact Substances.” Other items with which you may be familiar in terms of the regulation of packaging that comes into contact with food include the debate that rages concerning the level of Bisphenol A, also known as “BPA,” in plastic containers and baby bottles.

More information about the regulation can be found on the FDA website page devoted to the wide world of packaging. In the meantime, we can apparently eat our favorite sugary cereal without first subjecting it to the smell test.

The Campbell recall is just one in a series of food recalls happening this month. More recently, cereal giant Kellogg issued a voluntary recall of 28 million boxes of cereal, including its Apple Jacks, Corn Pops, Froot Loops, and Honey Smacks, due to what has been called an “uncharacteristic off-flavor and smell coming from the liner in the package.” Gives the Toucan Sam “Follow Your Nose” tagline a whole new meaning.

Kroger grocery stores recently issued a recall of its Deluxe Chocolate Paradise Ice Cream because the packaging fails to specify that the product may contain tree nuts. Only specific stores reportedly were affected by this recall, including a number of stores in our home state of South Carolina. Marie Callender Cheesy Chicken and Rice frozen meals have been recalled following a salmonella outbreak that has reportedly sickened at least eight people. The Marie Callender recall reportedly affects approximately 800,000 of the single-serve dinners. Finally, 67,000 bags of packaged fresh spinach sold in several states along the East Coast, under names including Krisp-Pak, Lancaster Fresh, Giant, and America’s Choice, have been recalled due to a possible Listeria contamination.

Not only are these tasty treats two of my favorite indulgences, but they are the subjects of two pending products liability actions.

On May 13, 2010, New York resident Mirko Carrea (“Carrea“) filed a lawsuit in the U.S. District Court for the Northern District of California. Carrea, on behalf of himself and a nationwide class of consumers, alleged that Dreyer’s Grand Ice Cream labels are misleading and could deceive a reasonable consumer into believing that their products are healthier than they truly are. Carrea v. Dreyer’s Ice Cream, No. 3:10-1044, amended complaint filed (N.D. Cal. May 13, 2010). The Federal Drug Administration provided that a product with more than 13 grams of total fat or 4 grams of saturated fat cannot claim to be trans-fat-free. Carrea takes issue with the fact that nothing on the Dreyer’s Drumstick ice cream cone directs a consumer to the nutritional information, even though it contains 19 grams of fat and 10 grams of saturated fat. Carrea also takes issue with the fact that the label uses the work “original” and the ingredients when this product was first made differs from the ingredients used today. Carrea seeks restitution of funds gained through this alleged “false advertising” and an injunction to stop marketing in this manner.

Another interesting suit was filed on May 3, 2010 by Agnes Mercado (“Mercado”), a New York women, who asserted that she ate two to three bags of popcorn a day for about 16 years and, as a result, developed severe lung disease that may require a lung transplant. Mercado v. ConAgra Foods Inc., et al., No. 11069/10, complaint filed (N.Y. Supreme Ct., Queens County May 3, 2010). Mercado filed suit against ConAgra and Givaudan Flavors Corp., manufacturers of the butter flavoring diacetyl added to the popcorn. She alleges that the diacetyl causes “serious debilitating” respiratory illnesses. Mercado’s complaint alleges negligence, defective design, failure to warn and breach of warranty. She is seeking $100 million in compensatory damages and punitive damages.

Two thoughts – ice cream is not “healthy” in any form and 2 to 3 bags of popcorn a day for 16 years, she must be acquaintances with the Plaintiff we wrote about in our A Can of Tuna a Day post. Both of these action will be interesting to follow to see how at least two courts address claims by Plaintiffs seeking damages for what likely are open and obvious risks?

Defendant moved to dismiss the action on the grounds that (1) Plaintiff’s claims under the New Jersey Consumer Fraud Act (“CFA“) were subsumed by her claims under the New Jersey Products Liability Act (“PLA“), (2) Plaintiff had failed to state her claims with sufficient particularity, (3) Defendant had no duty to warn, and (4) public policy considerations warranted dismissal of the action. The Court granted Tri-Union’s motion on the first ground, but denied on the other grounds.

On Tri-Union’s first ground, the Court agreed with Tri-Union that Fellner’s claims under the CFA are subsumed by the PLA because the mere fact that Fellner sought economic damages to reimburse her for the cost of the product, did not negate the fact that her underlying claim was that the tuna was defective. A contrary finding would nullify the intended purpose of the PLA to “unify products liability causes of action into a single claim.”

Tri-Union’s third ground for dismissal was that it had no duty to warn of the potential danger of mercury in its tuna products. Tri-Union first argued that the dangers of mercury are obvious, operating as a complete defense to a failure to warn action. The Court found that level of consumer knowledge was relevant but that this determination could not be made at this stage of the pleadings. Next, Tri-Union argued that Fellner misused the product by consuming the product in “abnormal” quantities and, therefore, the danger caused by such misuse was unforeseeable. The Court again found that while her consumption may be relevant, this determination could not be resolved on a motion to dismiss. Finally, the Court rejected Tri-Union’s argument that since mercury is naturally occurring, no warning was necessary. The Court stated that this was not a per rule.

The Court’s ruling merely dismissed Fellner’s claim under the CFA but allowed her claim under the PLA for failure to warn to move forward. Therefore, it would be in the jury’s hands whether the dangers of consuming approximately 4,380 cans of tuna was knowledge a typical consumer possesses and whether this level of consumption was an unforeseeable misuse.

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.

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.

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.