Competitor v. Competitor: Deceptive Packaging Reaches New Level

Not too long ago, we reported on a suit against Unilever in which the Orange County (CA) District Attorney’s Office accused the company of fudging the packing of its AXE line of male grooming products. Now, a new product finds itself the target of a deceptive packaging lawsuit, and the plaintiff bringing the action may surprise you.  Rather than a disgruntled consumer or, as in the Unilever case, an entity acting on behalf of consumers, the plaintiff is the target defendant’s competitor.

According to a report from the Star Tribune, Watkins, Inc., a Minnesota-based manufacturer of a variety of baking products including pepper and vanilla extract, filed suit against McCormick & Co. alleging that the spice giant is deceiving consumers. Specifically, Watkins alleges that McCormick decreased the amount of black pepper in its tins by 25 percent without shrinking its containers or lowering its prices. According to the complaint, McCormick’s and Watkins’ black pepper tins appear similar in size while maintaining different quantities of product. As such, McCormick’s packaging has allegedly led to confusion in the marketplace.

Reducing the quantity of product contained in a package is a common practice of manufacturers looking for alternatives to raising prices.  Nonetheless, we here at Abnormal Use can see how such a practice might possibly be viewed as deceptive. That said, we question whether Watkins is the appropriate plaintiff to file such a grievance.  If a consumers buys six ounces of a product under the reasonable belief that her or she is actually purchasing eight ounces., isn’t it the consumer who has been damaged?  In fact, Watkins seems to acknowledge as much as its complaint is littered with references to the deceived “consumer.”

Obviously, Watkins’ real beef is its belief that McCormick’s alleged deceptive packaging has damaged its share of the marketplace. Even if true, such damage is trivial.  McCormick has a 43 percent share of the U.S. black pepper market. Its next biggest competitor, Tone’s, has a 9 percent share.  Watkins’ current share is marginal at best.

With that said, this picture embedded in the Complaint (with insets provided by The Consumerist) tells an interesting story:


As you can see, the two McCormick tins appear to be the same size, but the quantities have decreased from eight ounces to six ounces.  The Watkins’ tin on the right contains six ounces of black pepper. Even though McCormick’s tin is clearly marked, we can see Watkins’ issue.  But, the real question is how many consumers actually purchase black pepper based on quantity versus the name brand to which they are accustomed? People know the McCormick name. We doubt Watkins has the same brand recognition. We question how many people faced with the perilous task of buying pepper, if any, have ever been torn with the choice between McCormick and Watkins and elected to buy McCormick because of the bigger tin? Certainly not us, as we are still trying to finish off the tin we bought many moons ago.

Hot Dogs: New Standard for Food Purity

When we here at Abnormal Use think of “pure” food products, we think of mountain spring water or fresh fruits and vegetables.  Never do we think of hot dogs. Never (despite our love of hot dogs). However, the Hebrew National brand of hot dogs claims to be just that. Kosher beef. No fillers. No byproducts. No artificial flavors. In other words, Hebrew National claims to be as “pure” as a hot dog can get. We have nothing against the brand, but we still are skeptical about placing “pure” and “hot dog” in the same sentence. A class of consumers has taken such skepticism a step further and filed suit against ConAgra Foods, Inc., the manufacturer of the Hebrew National brand, claiming that these hot dogs were not, in fact, “kosher.” Last year, a federal district court in Minnesota dismissed the suit on the grounds that the First Amendment barred him from addressing the underlying religious questions. Recently, the Eighth Circuit nixed the dismissal and remanded the case back to the Minnesota court. The case is captioned Wallace v. ConAgra Foods Inc., No. 13-1485 (8th April 4, 2014).

It will be interesting to see what becomes of this suit now that it has gained new life. As we discussed above, we understand the skepticism surrounding claims of hot dog purity. But, these plaintiffs have taken things beyond mere skepticism and actually challenged the religious nature of the process. Here, the plaintiffs take issue with whether ConAgra followed proper religious procedures, despite packaging that claims to “meet a higher standard,” being made by people who “answer to a higher authority.” Interestingly, according to the Chicago Tribune, the plaintiffs do not claim to eat kosher themselves. We guess they are just looking out for those that do. Or, just want a better hot dog.

We are no experts on kosher foods and do not know exactly which part of the hot dog-making process to which these plaintiffs object.  We do know that these issues are to be taken seriously. Had these plaintiffs actually followed kosher practices, then we would find some merit behind the claims and understand the trial judge’s reasons for dismissing the matter on religious grounds. But that is not what we have here. What we have are plaintiffs that must have some other standard for their hot dogs. Even if Hebrew National’s claims are not 100 percent accurate (and we have no reason to believe they are not accurate, despite our general hot dog purity skepticism), where have these non-kosher practicing plaintiffs been damaged? Certainly, a 75 percent kosher hot dog must be better than any other hot dog. When it comes to hot dogs, standards are low, anyway, right?

We imagine the plaintiffs are claiming that they paid a premium for the kosher hot dogs. Even if they did, let the plaintiffs tour any other company’s hot dog making plants and they will see that they still got a bargain.

Vice Squad: Dopamine Agonist Agony

It was a slow news day at the world headquarters of Abnormal Use. Oh sure, the global economy was in the process of melting down. Washington had just created a super-Congress. And Tiger Woods was making a triumphant, yet underwhelming, return to professional golf. Yawn. But as the bureau chief for Abnormal Use: Vice Squad, I was looking for some fresh, products-based inspiration that toed the thin gray line between entertainment and decency. It’s a dirty job down here in the trenches, but there’s nowhere else I’d rather be. So as I’m sitting at the Vice Squad desk, I happened across a pharmaceutical litigation discussion board. I’d thought I’d stop in, just to see what I could see. Happily, what I saw was my inspiration for this post . . . .

Let’s take a quick poll. Imagine you have a condition that requires you to take medication that may cause certain side-effects. How far down the following list of side-effects would you go before you declined the medication, knowing – obviously – that you can’t pick and choose which side-effects you want?

(1) May cause depression.
(2) May cause compulsory shopping.
(3) May cause compulsory eating.
(4) May cause pathological gambling.
(5) May cause hypersexuality or sexually risky behavior.

Based on this list, some folks may choose to stay away from the meds. Others may look at the list of side-effects and think, all things considered, it’s not so bad. Personally, I can name eight people off the top of my head that have more than half of these side-effects and don’t even take medication. I’ll bet you can too. (Feel free to post their names in the comments.)

The side-effects listed above are alleged to occur in connection with drugs that use “dopamine agonists.” To be honest, I don’t understand what a dopamine agonist is; I don’t know what they do; I certainly don’t know how they work; and frankly, I don’t care to know. If you want to know, the best I can do is give you a link to the Wikipedia page and wish you good luck.

Based on my otherwise extensive research, meds that include dopamine agonists are commonly used to treat Parkinson’s Disease and – of all things – Restless Leg Syndrome. If the critics of dopamine agonists are right, a person could go to the doctor to get treatment for his jimmy legs and walk out with an unhealthy sex addiction, an urge to eat at Golden Corral, and the need to let it all ride on 17 black. This, of course, has prompted litigation.

One plaintiff claims that as a result of dopamine agonists, he developed a shopping compulsion and an eating disorder, went to Vegas without telling his wife, began adulterous relationships, and forged checks from his wife’s account. Other plaintiffs have made similar allegations a la that they began using dopamine agonists, that they began committing adultery, and that they would go gambling for days without telling their spouses where they were. See, e.g., Sweet v. Pfizer, 232 F.R.D. 360 (C.D. Cal. 2005). Again, this sounds exactly like people we already know.

A class action involving dopamine agonists and compulsive behavior was filed in Minnesota in 2006. The first case to be tried out of that litigation resulted in a jury verdict of $8.2 million. Charbonneau v. Boehringer Ingelheim Pharma., Inc., C.A. No. 0:06–CV–1215 (D. Minn. 2006) (Note: Since there was no written order regarding the verdict, I’ve included just the case name and docket number, if you want to do more research.  Or you can just take my word for it.). The other cases in the class were settled soon thereafter. Other litigation has sprung up around the country, and in many jurisdictions, is still pending.

As someone who normally practices corporate defense litigation, I began wondering what kinds of affirmative defenses were raised in these cases. I had a feeling they could be entertaining. I was right. I’ve set my favorite affirmative defenses out below:

(5) Proximity to Gambling Outlets. This defense is obviously designed to attack causation: “The drugs didn’t make your no-good father / husband / son / boyfriend gamble; it was the fact he lived next to Caesar’s Palace.” It’s at least plausible.

(4) Personal Susceptibility. “Plaintiff has always been depressed / been overweight / had a gambling problem / been a womanizer.” This seems to tread awfully close to inadmissible propensity evidence, but for an answer to the complaint, that’s a non-issue.

(3) Utility. “The benefits of using dopamine agonists outweigh any negative side-effects that may occur.” This seems like a hard sell when the condition is something like jimmy legs and the consequence is something like bankruptcy, adult-onset diabetes, and a no-expenses paid trip to a sexual rehabilitation clinic where the best you can hope for is sharing a lunch table with David Duchovny.

(2) Bad Gambler. There are no bad gamblers; only bad luck. Motion to strike this defense granted.

(1) Act of God. Act of God? Are you serious?  Isn’t this the same God that condemns avarice, lust, AND gluttony? Is this for real? Yes, this is for real. If you don’t believe me, check out this document: 2006 WL 1829496 (Affirmative Defense No. 5). I would pay to see this defense in action. “And therefore, Ladies and Gentlemen of the Jury, it was not dopamine agonists that caused the plaintiff to have illicit, extramarital sex and to bet on horses; it was God!” Statistically, you’d have 90 percent of Americans ready to punish you for even suggesting that God was the proximate cause of the plaintiff’s injuries. The other 10% would be ready to commit you for suggesting that a figment of humanity’s imagination was responsible. It’s a losing proposition. But it does remind me of the seminal case, United States ex rel. Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D. Pa. 1971), which I’ve linked here for your reading pleasure.

I have two last observations. A quick bit of research on Westlaw yielded a number of decisions involving dopamine agonists, none of which came out of Nevada, which of course has legalized gambling and prostitution. How, if at all, this would affect the usefulness of “proximity to temptation” as an affirmative defense, who knows? But I thought it was an interesting bit of trivia.

Finally, in a number of the cases I looked at in preparing for this article, I couldn’t help but notice an interesting trend. Many plaintiffs alleged that as a consequence of using drugs with dopamine agonists, they developed hypersexual compulsions. In those same cases, there would usually be a spouse claiming loss of consortium. Go figure.

Manufacturer’s Duty to Warn Does Not Include Duty to Train Airline Pilots

In Glorvigen v. Cirrus Design Corp., 2011 WL 1466393 (Ct. App. Minn. April 19, 2011) [PDF], the Minnesota Court of Appeals considered how far a manufacturer’s duty to warn extends in the context of piloting an aircraft. In so doing, the court found that any such duty does not extend so far as to require the manufacturer to provide pilot training.

The facts were these: In 2001, Gary Prokop received his pilot’s license, training mostly on an aircraft manufactured by Cessna and logging most of his hours in that plane, as well. He had a visual-flight-rules certification, which meant that he was not permitted to fly when weather conditions might require the use of instruments. He subsequently completed all of the training he needed to take the test to be instrument-certified, but he had not yet taken the test.
In 2002, Prokop bought a new plane, a Cirrus SR22. He was provided a Pilot’s Operating Handbook and FAA Approved Airplane Flight Manual for that aircraft. Also included in the purchase price of the plane was two days of “transition training.” Not to be confused with classes on how to actually fly a plane, this “transition training” was designed simply to show a pilot how the new aircraft differed from the plane the purchasing pilot had previously flown. In this case, the transition training was supposed to have included training on the autopilot system of the Cirrus plane, a feature Prokop’s original Cessna lacked. In addition to this two days of transition training, Prokop purchased and attended an additional day and a half of training.
Following these training sessions, the instructor was supposed to grade the pilot on specific maneuvers on an evaluation sheet, leaving blank those maneuvers which had not been performed by the pilot. Following his training, Prokop received “S” for “satisfactory” on all maneuvers except one that involved the use of autopilot in switching between flying visually and flying with the use of instruments. That part of the evaluation form remained blank.
On January 18, 2003, after being cleared to fly, Prokop and a friend, Jamed Kosak, took off from Grand Rapids, Michigan on their way to St. Cloud for their sons’ hockey game. A few minutes later, the plane struck the ground and both men were killed in the accident. The trustees for the decedents’ next of kin sued Cirrus; the trustee for Kosak’s next of kin also sued Prokop’s estate. The Kosak complaint alleged that “Cirrus undertook a duty to provide Prokop with flight training, that Cirrus breached an implied warranty of merchantability by omitting a flight lesson [concerning switching from visual to instrument flying using autopilot], and that Prokop was negligent in piloting the aircraft.” The Prokop complaint alleged that Cirrus was negligent in the “designing, testing, manufacturing, sale, distribution, maintenance, warnings, pilot training, and instructions given regarding the aircraft.”
Much of the ensuing trial focused on the “transition training” – what specifically was taught by the instructor, whether or not that one training session in question was actually performed or not, and whether or not the crash would have happened if the training had been performed properly or differently. Following the trial, the jury awarded both trustees damages.
On appeal, however, the appellate court focused not on the adequacy of the transition training, but whether or not the manufacturer, Cirrus, owed a duty to train Prokop at all. The issue, as framed by the appeals court, was, “Does an airplane manufacturer’s duty to warn by providing adequate instructions for the safe use of its aircraft include a duty to provide pilot training?”
The appellate court concluded that it does not, for two reasons. The first focused on the purpose of the transition training, and whether or not it had anything to do with the manufacturer’s duty to warn:

Respondents assert that Cirrus offered transition training as a means of satisfying its duty to warn by providing adequate instructions for safe use. But the record indicates that the purpose of transition training was to assist Prokop to be proficient in the use of an unfamiliar aircraft. Although proficiency training undoubtedly promoted the safe use of the SR22, we find no support in the law for respondents’ proposition that Currus’s duty to warn included an obligation to train Prokop to proficiently pilot the SR22–which is the crux of respondents’ claims.

Second, the court focused on the fact that at the time he purchased the aircraft, Cirrus provided Prokop with two sets of written instructions: the Pilot’s Operating Handbook and FAA Approved Airplane Flight Manual for the Cirrus Design SR22.

Therefore, the court held, “any liability based on appellant’s failure to provide adequate transition training cannot be sustained under a product-liability theory.”

This is the right decision for a few reasons. First, the transition training was not mandatory, nor was it a prerequisite for buying the plane from Cirrus in the first place. If Prokop had never availed himself of the training offered, then the adequacy of the training would never have been put under the microscope. Secondly, there was never any allegation that the training Prokop did receive was performed negligently. And, finally, the liability waves from a finding that Cirrus did owe a duty to train Prokop could have turned into tidal waves, leading to de facto requirements that chainsaw manufacturers provide training to every person who buys their product from a Home Depot, car manufacturers give driving lessons, ad infinitum. But for now, the floodgates remain closed on this issue, thanks to the Minnesota Court of Appeals.

Of Lawn Mowers and Industry Standards in Minnesota

Today is not a day of lighter fare, but it is a day to examine the notion of industry standards determining safety and other matters. The opening sentence in Sobolik v. Briggs & Stratton Power Products Group, LLC, No. 09-1785, 2011 WL 1258503 (D. Minn. March 30, 2011) gives the main operative fact: a lawn tractor user was killed when the lawn tractor rolled over near a ditch. The complaint stated claims on design defect and failure to warn, and that the lawn tractor should have had some device protecting against rollover.

Before we get started, feel free to search for “lawn mower rollover protective device” and see the number of law firms that specialize in lawn mower accidents. You’ll notice that the plaintiff’s attorney in this case has a website advocating the use of roll over protective devices and YouTube videos showing how evil all the manufacturers of lawn tractors are for not using these devices.

These type of sites feed the theory that big corporations are out to make dangerous products as cheaply as possible to sell them and take advantage of an uneducated public. Necessarily, all the big corporations conspire to make sure that some company that doesn’t care about profit can’t make its products any safer than the rest. In the lawn tractor industry, it is not the norm to require some roll over protective device. Surely there are enough players in the lawn tractor market that prevent this industry standard from arising out of some massive conspiracy to sell lawn tractors as cheaply as possible to the detriment of consumer safety. There must be some sound business principle for not mandating a roll over protective device. In looking to the industry standard, I am not advocating that the standard be given some preclusive effect. But I think that the industry standard is more than merely some evidence that any particular design is not defective. While juries usually ferret out the truth, I am a little skittish about a jury being able to say that an entire industry is wrong and all of their respective designs are defective and could be made safer. That reminds me slightly of Homer Simpson’s car design that was to be the epitome of everyman’s desire.

Furthermore, in an effort to generate some comment, let me state that the use of such devices would not necessarily make anything safer. Please refer to the Peltzman effect to see what I mean. I don’t mean to imply that I am up to date on seat belt design data, and that you should not wear seat belts, but, for a while, there were some questions regarding whether seat belts lower risk or merely redistribute it in response to the perceived safety benefit of the seat belts. If you really wanted to make people drive more safely, you would make cars less safe and accidents more expensive. Wouldn’t you drive more safely if a manufacturer installed an axe blade in the steering wheel, and that was part of the safety features of the car? Obviously you couldn’t do this, because safety on the roads depends in part on the choices of all of the other people on the road that you interact with. I’m not willing to increase my risk of serious accident because there are others on the road who may not value my life or theirs as much as I do. But I am unsure if line of reasoning holds true with products that are mostly used in isolation, i.e., a lawn tractor.

I’m not sure you would or could make the argument that the lack of a roll over protective device on a lawn mower increases safety. Certainly when I’ve used a mower near an embankment, I am conscious of the roll over risk, and I change my behaviour in response to that risk. I think it’s certainly arguable that, at least in theory, that if you mandate installation of a roll over protective device you may merely redistribute risk into some other form of accident rather than reducing it. While alternate designs are considered by business, unfortunately, in cases such as the above, that involve serious injury or death, arguing that a roll over protective device doesn’t necessarily increase safety probably doesn’t play well in front of a jury. Which is why allowing a company to rely on industry standards is important. A jury may not be able to hear that the installation of a safety device is a bad idea, but it may be more receptive to the argument that this particular company designed their product in accordance with industry standards. As shown by this District of Minnesota opinion, conforming with the industry standard, is merely evidence that the design was not defective, and perhaps in a jury case that is the best that can be done.

Harsh Punishment on the Horizon for Company, and Perhaps its Executives, Who Failed to Warn

A federal judge in Minnesota has rejected a proposed plea agreement between the federal government and Guidant Corporation, in which Guidant had agreed to plead guilty to two criminal misdemeanors and to pay a $296 million fine for continuing to sell heart defibrillators after discovering that some might short-circuit and fail, The New York Times reports. Federal Judge Donovan W. Frank said, in his 37-page opinion [PDF], that provisions of the agreement were not in the best interest of justice and do not serve the public’s interest because they do not adequately address Guidant’s history and the criminal conduct at issue.”

The problems associated with Guidant’s defibrillators, which have reportedly been associated with 6 deaths, came to light in 2005 when The New York Times published an article based on interviews of two Minneapolis cardiologists who treated Joshua Oukrup, a 21-year-old college student who reportedly died when his Guidant defibrillator short-circuited as it was charging to send out its life-saving jolt. Although Guidant had reportedly become aware of the defect associated with its product, its representatives merely fixed the flaw in new devices without warning doctors or regulators about the problem. As such, patients continued to get the potentially flawed older devices because the company did not pull them from hospital shelves.

Guidant’s chief medical officer explained that “the company had not seen a compelling reason to issue an alert to physicians about the defibrillators because the failure rate was very low and replacing the devices might pose greater patient risks.”

Mr. Oukrup’s treating cardiologist said that this was “a statistical argument that has little to do with real people.” In fact, prior to Judge Frank’s April 27 ruling, Mr. Oukrup’s two treating cardiologists wrote a letter [PDF] to the court urging the judge to reject the plea agreement. The doctors wrote that they were “extremely dismayed” with the decision to enter such an agreement with the company rather than to “prosecute the company and the individuals responsible for this egregious act.”

Judge Frank noted in his ruling that it is up to prosecutors, not the court, to decide who should be prosecuted. But his rebuke of the proffered plea deal certainly calls into question: “Who should be held accountable when a company sells a flawed product that can injure or kill patients? Is it the company or the people who run it?”