Presentation on theme: "LITIGATION RISKS ASSOCIATED WITH FOODS THAT POSE A CHOKING HAZARD MWFPA Food Science & Technology Committee July 25, 2012 Michael Best & Friedrich has."— Presentation transcript:
1LITIGATION RISKS ASSOCIATED WITH FOODS THAT POSE A CHOKING HAZARD MWFPA Food Science & Technology Committee July 25, 2012Michael Best & Friedrich has [200+] attorneys in 4 offices in Wisconsin, and 1 office in Illinois.Food, Beverage and Agribusiness Industry GroupMichael Best & Friedrich LLP100 East Wisconsin Avenue, Suite 3300Milwaukee, WIPaul E. Benson(414)
2Choking Hazards – The Litigation Perspective Overview of Litigation RiskBackground on Choking RisksLegal Theories Plaintiffs May PursueStrict LiabilityImplied WarrantyNegligenceScenariosFailure to Warn (“I had no idea I could choke on that”)“Foreign” ObjectThe discussion will focus on litigation risks – not regulatory requirements
3Litigation 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.
4Background on Choking Risks American Academy of Pediatrics – Policy Statement (Feb. 2010)Choking is a leading cause of child mortalityChild development (particularly < 3 years old) is a factorSmaller diameter airwayUndeveloped molars (for grinding food) and/or chewing habitsFood shape and consistency are factors
5Background on Choking Risks (cont.) Food Shape/Consistency Factors (AAP Statement)CylindricalAirway sizedCompressible (can conform to the airway shape and completely block the passage)Examples of “High-Risk” FoodsHot dogsSausagesHard candyPeanuts/nutsSeedsWhole grapesRaw CarrotsApplesPopcornChunks of peanut butterMarshmallows
6Legal 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 - § 402AA defective condition is one not contemplated by the ultimate consumerUnreasonably dangerous means dangerous to an extent not contemplated by the ordinary consumer who purchases it.
7Legal Theory – Strict Liability (cont.) The presence of unreasonably dangerous foreign substances can result in strict liability.E.g., bits of glass in a food itemCourts have had a harder time dealing with dangerous natural substancesBones in meat products (chicken pie, enchilada, ‘boneless’ turkey breast)Pecan shells in caramel/pecan candiesGrain of corn in box of corn flakesAt 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.
8Legal 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.
9Failure To Warn Types of failure to warn claims Inherent danger to intended consumers (young children)Danger not obvious (marshmallows)
10Elements 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).
11Failure to Warn – Safeguards American Academy of Pediatrics Policy Statement RecommendationFDA 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 StrategiesEvaluate foods against the characteristics that define “high risk” foods – cylindrical, airway-sized, compressible
12Are 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).
15Legal Theory - Negligence The “catch all” claim – can survive even in the absence of a viable strict liability or implied warranty claimConsider the “natural substance” issueNatural feature of the substance may eliminate strict liabilityCourt could conclude that the food processor was nevertheless negligent for failing to look for and eliminate the natural substanceFour Elements to Establish Negligence:Duty of CareBreach of that DutyProximate Cause of the InjuryDamages
16Legal Theory – Negligence (cont.) Industry Standards can Establish the Duty of CareIf/when labeling becomes more standard, the failure to provide a warning label could be found to be substandard.Increased Knowledge = Greater Duty to the ConsumerA 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.
17Possible Action StepsEvaluate food products against the high-risk factorsSize, shape and consistencyDocument steps taken to minimize inherent choking risksExample: Baby carrots – can be processed at a size that is large enough to induce chewing/cuttingExample: Grapes – likely not much that can be done from a processing standpointConsider warning labels