LITIGATION RISKS ASSOCIATED WITH FOODS THAT POSE A CHOKING HAZARD

MWFPA Food Science & Technology CommitteeJuly 25, 2012

Michael Best & Friedrich LLP100 East Wisconsin Avenue, Suite 3300Milwaukee, WI 53202

Paul E. Benson(414) 225-2757pebenson@michaelbest.com

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

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.

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

Types of failure to warn claims Inherent danger to intended consumers (young

children) Danger not obvious (marshmallows)

Failure To Warn

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?