1. LITIGATION RISKS ASSOCIATED WITH FOODS THAT POSE A CHOKING HAZARD MWFPA Food Science & Technology Committee July 25, 2012
Michael Best & Friedrich has [200+] attorneys in 4 offices in Wisconsin, and 1 office in Illinois.
Food, Beverage and Agribusiness Industry Group
Michael Best & Friedrich LLP
100 East Wisconsin Avenue, Suite 3300
Milwaukee, WI
Paul E. Benson
(414)

2. Choking Hazards – The Litigation Perspective
Overview of Litigation Risk
Background on Choking Risks
Legal Theories Plaintiffs May Pursue
Strict Liability
Implied Warranty
Negligence
Scenarios
Failure to Warn (“I had no idea I could choke on that”)
“Foreign” Object
The discussion will focus on litigation risks – not regulatory requirements

3. Litigation Risk Overview
When severe injuries or death occur, parties frequently look for a deep pocket to sue.
The very fact that food is intended to be ingested creates a choking risk.
Being named in a lawsuit brings costs:
Litigation is time consuming and expensive.
The litigation can create a stigma.
The very fact that food products are intended to be ingested creates a risk that a severe injury or death could result in a lawsuit against the food processor.
Even if successfully defended, litigation is time consuming and expensive.
The stigma associated with being sued can have long term implications.

4. Background on Choking Risks
American Academy of Pediatrics – Policy Statement (Feb. 2010)
Choking is a leading cause of child mortality
Child development (particularly < 3 years old) is a factor
Smaller diameter airway
Undeveloped molars (for grinding food) and/or chewing habits
Food shape and consistency are factors

5. Background on Choking Risks (cont.)
Food Shape/Consistency Factors (AAP Statement)
Cylindrical
Airway sized
Compressible (can conform to the airway shape and completely block the passage)
Examples of “High-Risk” Foods
Hot dogs
Sausages
Hard candy
Peanuts/nuts
Seeds
Whole grapes
Raw Carrots
Apples
Popcorn
Chunks of peanut butter
Marshmallows

6. Legal Theory – Strict Liability
Strict liability can be imposed for food products that are sold in a defective condition and unreasonably dangerous to the user or consumer.
Restatement (Second) of Torts - § 402A
A defective condition is one not contemplated by the ultimate consumer
Unreasonably dangerous means dangerous to an extent not contemplated by the ordinary consumer who purchases it.

7. Legal Theory – Strict Liability (cont.)
The presence of unreasonably dangerous foreign substances can result in strict liability.
E.g., bits of glass in a food item
Courts have had a harder time dealing with dangerous natural substances
Bones in meat products (chicken pie, enchilada, ‘boneless’ turkey breast)
Pecan shells in caramel/pecan candies
Grain of corn in box of corn flakes
At one time, strict liability claims could not survive if based on natural substances – but that distinction has been eroding in favor of a “reasonable expectation” test.

8. Legal Theory – Implied Warranty
A strict liability analysis is very similar to the analysis that the food product is so defective that the producer violated the implied warranty of merchantability.
Such claims focus on the reasonable expectations of the consumer and relate to a failure to warn of potential dangers.

9. Failure To Warn Types of failure to warn claims
Inherent danger to intended consumers (young children)
Danger not obvious (marshmallows)

10. Elements of a Failure to Warn Claim
A failure to warn claim is a narrower claim than one that alleges a defective product. Wyeth v. Levine, 555 U.S. 555, 565 (2009).
Such claims are based on the premise that “the failure to warn of an injury-causing risk associated with the use of a technically pure and fit product can render the product unreasonably dangerous.” Emery v. Federated Foods, 863 P.2d 426, 431 (Mont. 1993).

11. Failure to Warn – Safeguards
American Academy of Pediatrics Policy Statement Recommendation
FDA should require warning labels “on foods that pose a high choking risk to children.”
Notes that Sweden introduced age labeling on foods for infants and young children since 1979 and warning labels on peanuts since 1981.
Possible Strategies
Evaluate foods against the characteristics that define “high risk” foods – cylindrical, airway-sized, compressible

12. Are Warning Labels Effective?
[R]equiring a manufacturer to warn against obvious dangers could greatly increase the number of warnings accompanying certain products. If a manufacturer must warn against even obvious dangers, “the list of foolish practices warned against would be so long, it would fill a volume.” Requiring too many warnings trivializes and undermines the entire purpose of the rule, drowning out cautions against latent dangers of which a user might not otherwise be aware. Such a requirement would neutralize the effectiveness of warnings as an inexpensive way to allow consumers to adjust their behavior based on knowledge of a product’s inherent dangers. Liriano v. Hobart Corp., 700 N.E.2d 303, 308 (N.Y. 1998), quoting Kerr v. Koemm, 557 F. Supp. 283, 288 (S.D.N.Y. 1983).

13. Are Warning Labels Effective? (cont.)

14. Are Warning Labels Effective? (cont.)

15. Legal Theory - Negligence
The “catch all” claim – can survive even in the absence of a viable strict liability or implied warranty claim
Consider the “natural substance” issue
Natural feature of the substance may eliminate strict liability
Court could conclude that the food processor was nevertheless negligent for failing to look for and eliminate the natural substance
Four Elements to Establish Negligence:
Duty of Care
Breach of that Duty
Proximate Cause of the Injury
Damages

16. Legal Theory – Negligence (cont.)
Industry Standards can Establish the Duty of Care
If/when labeling becomes more standard, the failure to provide a warning label could be found to be substandard.
Increased Knowledge = Greater Duty to the Consumer
A greater understanding of the physics and physiology of child choking hazards can heighten the standard.
Note that one of the reasons courts began abandoning the foreign-natural distinction in strict liability cases was that technological advances made it much easier to identify and remove naturally occurring choking hazards.

17. Possible Action Steps
Evaluate food products against the high-risk factors
Size, shape and consistency
Document steps taken to minimize inherent choking risks
Example: Baby carrots – can be processed at a size that is large enough to induce chewing/cutting
Example: Grapes – likely not much that can be done from a processing standpoint
Consider warning labels

18. Questions?