Mass Tort Litigation Blog

Bill Marler on Legal Issues for Food Safety

Bill Marler has posted his brief article, Legal Issues for Food Safety, on Marler Blog.

BGS

Nestle Not Completely Cooperative with FDA Inspections Prior to E. Coli Outbreak

Article in the Wall Street Journal -- Nestlé Unit Denied FDA Requests, by Jane Zhang.  Here's an excerpt:

The Nestlé USA plant at the center of a federal probe into an E. coli outbreak involving cookie dough refused to give inspectors access to pest-control records, environmental-testing programs and other information, according to newly released inspection reports covering the past five years.

In a September 2006 visit, for example, managers at the Danville, Va., plant refused to allow a Food and Drug Administration inspector to review consumer complaints or inspect its program designed to prevent food contamination. The inspector found dirty equipment and "three live ant-like insects" on a ledge but nothing severe enough to give the plant a failing grade.

A year earlier, officials at the Nestlé plant presented another FDA inspector with a list of things it wouldn't do. "Among these are the refusal to review the firm's consumer complaint file, refusal to permit photography, refusal to sign affidavits or receipts and refusal to provide specific information on interstate commerce," the inspector wrote.

BGS

Split FDA into Separate Food Administration and Drug Administration?

According to this article in today's L.A. Times, pharmaceutical companies are quietly pushing to break up the FDA into separate entitites, in hopes of speedier drug approvals.  President Obama yesterday appointed a group to reassess the FDA, so there may be an opportunity for change.

BGS

Tainted Milk Suits Given the Go-Ahead in China

Apparently no legal system can escape the mass tort juggernaut -- for good or ill.  The Highest Court in China has recently given the green light to suits arising out of the distribution of tainted milk.  See the article on the Associated Press here.  One interesting aspect is the numbers of families who have refused government compensatio because it is too small, electing instead to sue. 

ADL

Peanut Company Officials Take 5th Amendment Self-Incrimination Protection Before Congress

Article on cnn.com -- Peanut company officials spurn Congress' questions.  Here's an excerpt:

The president of a peanut company and a plant manager accused of knowingly distributing contaminated food refused to answer questions posed by members of Congress on Wednesday, citing their Fifth Amendment protection against self-incrimination.

The testimony of Stewart Parnell, president of the Peanut Corp. of America, and Sammy Lightsey, manager of the company's Blakely, Georgia, plant, before a House Energy and Commerce subcommittee lasted less than 10 minutes.

Neither man had an opening statement. Asked whether it was their intention to cite constitutional protection in refusing to answer all the questions posed by the committee, both men said it was.

It was the only question they answered; Parnell cited constitutional protection even when asked whether he had heard members of a previous panel testify.

BGS

The Hartford Files a Declaratory Judgment Action Against Peanut Corp. of America

Illustrating another angle in the complicated relationship between insurance and mass torts, the Hartford has filed a declaratory judgment action against the Peanut Corporation of America, presumably to avoid paying out on claims arising out of the spate of lawsuits we are about to see arising out of salmonella poisoning in peanut butter products.  As Bill Marler points out in his blog, the complaint does not actually tell us what the Hartford's position is with respect to paying out on any salmonella related claims, but it is hard to imagine why an insurance company would take the trouble to file a declaratory judgment action unless it was trying to avoid payment.  For more information, see the Marler Blog .  You can download the suit from there.

The insurance issues in the Asbestos context are well studied -  I imagine we're likely to see more fights with insurance in other mass tort contexts.

ADL

Peanut Plant Closes

The Associated Press reports that the peanut plant in Blakely, Georgia, The Peanut Corp. of America, has closed its doors after salmonella investigations. To date, there are reports of 486 people becoming sick and six deaths.

ECB

Peanut Butter Lawsuits Begin

As posted on the Marler Blog, the first lawsuit arising out of the recent nation-wide outbreak of Salmonella in Peanut Butter has been filed in Georgia.  The post is here.  Marler reports that there are more than 485 infected people in 43 states so far and that numerous products have been recalled.  A list of products is here. 

ADL

Guilty Plea Entered in Chinese Tainted Milk Case

The New York Times reports this morning that Tian Wenhua, the former chairwoman of one of China's largest dairy producers, pleaded guilty to selling baby formula tainted with melamine and to knowing about the problem months before reporting it. Here's an excerpt:

Since September, when the scandal became public, investigations have shown how widespread the problem of tainted milk is in China, with watered-down milk being doctored with a chemical used in plastics and fertilizer to falsely raise its protein count. The chemical, melamine, can cause kidney stones and other ailments, and the tainted formula sickened nearly 300,000 children and killed 6.

The government has accused Sanlu and other big Chinese companies of failing to monitor the quality of their powdered baby formula, and in some cases covering up knowledge that their products contained high levels of melamine. The scandal, which follows others in China’s food and drug industries, has devastated the country’s dairy industry, prompted global recalls of suspect food products, and forced the Chinese authorities to try to demonstrate a new seriousness in enforcement.

Ms. Tian’s plea came on the first day of a trial that involves three other Sanlu executives. The court said that consumer complaints about Sanlu’s milk came in as early as December 2007. Ms. Tian said she knew the company was selling contaminated formula by May 2008, but did not report the problem to local government officials until August. Between May and September, when Sanlu stopped production, prosecutors said the company made more than 900 tons of melamine-contaminated powdered formula.

ECB

Interested in Food Poisoning?

Bill Marler, a leading plaintiff-side attorney specializing in food poisoning litigation has this fascinating blog providing commentary about his work and related subjects:  http://www.marlerblog.com/

I saw him speak at the recent Class Actions/Mass Tort symposium put on by the Louisiana Bar Association.  One of the most interesting things he said is that he often speaks to companies trying to prevent epidemics of food poisoning and to protect themselves against litigation - once he's able to get their attention that is.  This is an aspect of the trial lawyer's role that I'd never thought of before: educating potential tortfeasors on how to avoid the tort.  It underscores the lawyer and tort system's role in deterrence in addition to compensating victims.

The blog is worth checking out; I'll resist the obvious jokes.  ADL

FDA Says Small Amount of Melamine Not Harmful to Adults

Article on cnn.com -- FDA: Tiny amount of melamine not harmful to adults.  Here's an excerpt:

Eating a tiny bit of a melamine, the chemical responsible for a global food safety scare, is not harmful except when it's in baby formula, U.S. food safety officials said Friday.

Melamine-tainted formula has sickened more than 54,000 children in China and is being blamed for the deaths of at least four tots. The chemical has also turned up in products sold across Asia, ranging from candies, to chocolates, to coffee drinks, that used dairy ingredients from China. Authorities in California and Connecticut have found melamine in White Rabbit candies imported from China.

But infant formula made in the U.S. is safe, because manufacturers do not use any ingredients from China.

BGS

Cadbury Recalls Candy Because of Melamine Contamination

Article on cnn.com -- 'High level of melamine' in two Cadbury products.  Here's an excerpt:

Hong Kong authorities Sunday announced that two recalled candy products made by British confectioner Cadbury had high levels of melamine.

The industrial chemical has recently been found in Chinese-made milk products that have sickened nearly 53,000 children in China, killing four.

Countries around the world have since banned the import of Chinese products containing milk, or have withdrawn products that contain milk from China -- such as candy -- amid worries they contain melamine.

BGS

Unilever Recalls Lipton Milk Tea After Finding Melamine

Article on cnn.com -- Manufacturing giant recalls melamine tainted tea.  Here's an excerpt:

Unilever is recalling four batches of Lipton Milk Tea sold in Hong Kong and Macau after finding traces of the chemical melamine in the product, the company said Tuesday.

Unilever Hong Kong Limited described it as a precautionary measure and said no other Lipton Milk Tea Powder products were affected.

The announcement came a day after British confectioner Cadbury said it has recalled all of its Chinese-made candy products after preliminary tests showed they contained trace amounts of melamine. Some of the products were exported to Taiwan, Hong Kong, Australia, Nauru and Christmas Island, according to the company.

They are the latest companies to get caught up in China's tainted milk scandal, which began earlier this month when authorities discovered melamine in powdered infant formula.

Contaminated milk has sickened nearly 53,000 children in China, killing four.

BGS

FDA Says Salmonella Outbreak Over -- Blaming Jalapenos, Not Tomatoes

Article in the Wall Street Journal -- Salmonella Outbreak Is Over, Federal Health Officials Say, by the Associated Press.  Now I can stop worrying about what to add to my Subway sandwiches.

BGS

FDA Focuses on Hot Peppers in Salmonella Investigation, Lifts Tomato Warning

Article in the Wall Street Journal -- Hot Peppers Are Focus Of Salmonella Probe, by Jane Zhang.  Here's an excerpt:

The Food and Drug Administration declared tomatoes safe to eat, saying it is focusing on hot peppers in its hunt for the source of a salmonella outbreak that has sickened more than 1,200 people in the U.S. and Canada.

The agency has sent investigators to look into a Mexico packer of jalapeño and Serrano peppers, though it can't say that facility is the source of the contamination, said David Acheson, the FDA's associate commissioner for foods, in a conference call with reporters Thursday.

The FDA, which originally blamed tomatoes for the outbreak that started April 10, says it is focusing on jalapeño peppers, which it said have caused illnesses, as well as Serrano peppers, which can be confused with jalapeños.

BGS

Continuing Salmonella Investigation Moves Beyond Tomatoes

Article in the Wall Street Journal -- Salmonella Probe Looks Beyond Tomatoes, by Jane Zhang and Julie Jargon.  Here's an excerpt:

With the number of salmonella victims still climbing, federal regulators are widening their investigation to include other fresh produce commonly consumed with tomatoes.

David Acheson, the Food and Drug Administration's associate commissioner for foods, said the agency is enlisting help from state and local labs to test a wider range of foods for the rare, virulent salmonella strain dubbed Saintpaul. He declined to specify which new products the FDA is focusing on.

The agency's move comes as the FDA is under growing pressure to step up efforts to trace the source of the contamination. Last week, the agency said it might not be able to pinpoint the source given the complexity of the nation's food-supply chain, frustrating industry groups representing the produce, supermarket and restaurant industries.

BGS

Judge Grants Initial Approval to Pet Food Class Settlement

Article in the Associated Press -- Recalled pet food settlement gets initial approval, by Geoff Mulvihill.  Here's an excerpt:

A judge granted initial approval Friday to a settlement in which companies that manufactured or sold contaminated pet food would compensate pet owners for all costs related to the death or illness of their dogs and cats.

Under the deal, granted initial approval by U.S. District Judge Noel Hillman, pet owners in the United States and Canada would be notified of the settlement by June 16 and would have until early December to submit claims. A final hearing on the $24 million settlement is scheduled for Oct. 14.

The settlement doesn't pay pet owners for pain and suffering from injuries to their pets.

BGS

$24 Million Pet-Food Settlement

Article in the L.A. Times -- Pet food companies OK $24-million settlement, by the Associated Press.  Here's an excerpt:

Companies that were sued over contaminated pet food linked to the deaths of perhaps thousands of dogs and cats have agreed to pay $24 million to pet owners in the United States and Canada.

The settlement is detailed in papers filed late Thursday in U.S. District Court in Camden, N.J. It still needs a judge's approval; a court hearing is set for May 30.

"The settlement attempts to reimburse pet owners for all of their economic damages," said Russell Paul, a lawyer for the plaintiffs.

AmLaw Daily provides more detail in its post, Massive Pet Food Recall Lawsuit Settles, by Andrew Longstreth.  Here's a link to the joint motion filed for certification and approval of the class settlement.

BGS

Government Report Says U.S. Soldiers in Iraq Sickened at Bases With Questionable Water Supplied By Contractor

Article on cnn.com -- Troops sickened at Iraq bases using KBR water, by the Associated Press.  The story evokes memories of the Agent Orange class action litigation involving Vietnam Veterans suing for illnesses allegedly caused by exposure to the Agent Orange defoliant sprayed in Vietnam.  As with Agent Orange, which settled, any lawsuits by soldiers from Iraq would likely face a vigorous military-contractor defense.  Here's an excerpt from the article:

Dozens of U.S. troops in Iraq fell sick at bases using "unmonitored and potentially unsafe" water supplied by the military and a contractor once owned by Vice President Dick Cheney's former company, the Pentagon's internal watchdog says.

A report obtained by The Associated Press said soldiers experienced skin abscesses, cellulitis, skin infections, diarrhea and other illnesses after using discolored, smelly water for personal hygiene and laundry at five U.S. military sites in Iraq.

The Defense Department's inspector general's report, which could be released as early as Monday, found water quality problems between March 2004 and February 2006 at three sites run by contractor KBR Inc., and between January 2004 and December 2006 at two military-operated locations.

It was impossible to link the dirty water definitively to all the illnesses, according to the report. But it said KBR's water quality "was not maintained in accordance with field water sanitary standards" and the military-run sites "were not performing all required quality control tests."

BGS

USA-China Product Safety Pact

Article in the Wall Street Journal -- Product-Safety Pacts Put Greater Burden on Beijing, by Jason Leow and Jane Zhang.  Here's an excerpt:

The Bush administration signed product-safety agreements with China that place a greater burden on Beijing to regulate exports of food, animal feed, drugs and medical devices.

The agreements require exporters of those products to register with the Chinese government, which will issue certificates stating they meet U.S. Food and Drug Administration standards. The agreements are aimed at closing some loopholes that let Chinese companies export unsafe food, drugs and other products.

Mike Leavitt, secretary of health and human services, signed the two agreements yesterday with Chinese officials in Beijing as part of three days of trade talks with China. "The agreements satisfy our firm principle that any country that desires to produce goods for American consumers must do so in accordance with American standards of quality and safety," he said in a statement.

The agreements cover such products as olives and canned mushrooms, pet food, raw materials for processed foods, farm-raised fish, drugs and medical devices. Drugs covered include: human-growth hormone; oseltamivir, an antiviral drug; and gentamicin sulfate, an antibiotic. The limited list of covered products is an initial step, U.S. officials said, suggesting Washington wants to gain confidence in the Chinese system before expanding the program.

BGS