The Ninth Circuit's iPod Opinion and the Warranty of Merchantability
The warranty of merchantability is a favorite tool of plaintiff's attorneys in food liability cases. We have blogged a good deal about it.
In a case that does not involve food at all, but is sure to get a lot of publicity, the Ninth Circuit yesterday ruled that the common iPod does not breach the warranty of merchantability even if it can be used to damage your ear while wearing ear buds. The decision in Birdsong v. Apple, Inc. will be very helpful in defending future claims of breach of the warranty in many areas, including in relation to food.
The plaintiffs in Birdsong did not allege any injury to themselves. Rather, they alleged that the iPod earbuds were capable of producing 115 decibels of sound, that consumers may listen at unsafe levels and that iPod batteries last 12 to 14 hours and may be recharged, meaning that a consumer may listen for a long time. The plaintiffs requested relief in the form of iPods being modified to have noise-reduction features, better warnings and a decibel meter. The court was having none of it.
The plaintiffs do not allege the iPods failed to do anything they were designed to do nor do they allege that they, or any others, have suffered or are substantially certain to suffer inevitable hearing loss or other injury from iPod use. Accordingly, the district court correctly determined that the plaintiffs failed to allege sufficiently the breach of an implied warranty of merchantability.
The court's analysis may apply equally well to many of the recent food liability cases we've examined where the plaintiffs allege no specific injury to themselves or any inevitable injury to someone consuming the food they have targetted. The warranty of merchantability does not work to protect a consumer from misuse of an item, or use of the item in an absurd, unnatural or harmful way. No one should play heavy metal music on an iPod for 14 hours straight at full volume, and should not claim a breach of the warranty of merchantability if they do. And no one who has been diagnosed with any particular health condition should expect to be able to order anything off the menu at a national chain restaurant, in any quantity, and assume it will not exacerbate that condition.
The noted New York restaurateur and curmudgeon Kenny Shopsin takes this attitude toward people who expect his restaurant to cater to their health needs:
Some people tell me they're deathly allergic to something and that I have to make sure it's not in their food. I kick them out. I don't want to be responsible for anyone's life-or-death situation. I tell them they should eat in a hospital.
Most restaurateurs, big and small, are more accommodating than Kenny (whose autobiography/cookbook has the title Eat Me for a reason). But ultimately, they are providers of food, not doctors, dieticians, the FDA or the Health Department.
Happy (and healthy) New Year, everyone.
Who Ordered the Christmas Pudding? Please Sign Here
Christmas pudding is an English delicacy with a long tradition. One of those traditions is that small coins or little silver charms are baked into the pudding, which are supposed to be sources of good luck for the coming year. Small coins and little silver charms, of course, can be swallowed or can crack teeth. This has, presumably, been going on for a long time without anyone bringing lawyers into it.
Until, that is, some lawyers started talking to the owner of High Timber Restaurant in London. High Timber is "the only restaurant in the City of London with tables on the banks of the Thames," which means that it is likely to attract a lot of lawyers as clientele, since the Inns of Court are just steps away. And some of those lawyers started advising owner Neleen Strauss about the risk of chipped tooth lawsuits. And what, in their opinion, to do about it.
So, before your server brought you Christmas Pudding at High Timber on Christmas, you were first asked to sign a waiver. The Huffington Post (or whomever they collected the article from) points out that other restaurants in the UK apparently require you to sign a waiver before eating rare meat, and that a restaurant in Chicago required waivers before serving chicken wings made from Red Savina Habanero peppers, which come in at a whopping 577,000 Scoville heat units. In some cases, it may be the waiver is used to generate publicity rather than necessarily providing legal protection.
I can't imagine anything more offputting than to be presented with a waiver to sign before being served dessert in a fine dining restaurant. This is a restaurant that doesn't have a wine list but instead suggests you make an appointment to view the cellar. Based on their online menu prices, the Christmas pudding probably cost about $12 US. For that, I'd expect a dining experience unmarred by the need to sign anything other than a credit card receipt. Would the other diners mind if I made a cell phone call to my English solicitor to have her interpret the waiver for me?
Food isn't the only place where the movement to turn every transaction into a legal confrontation is evident. Some years ago, consumer groups advocated that there be a required explanation for the fine print in every consumer lease transaction. Rental car companies pointed out that, in order to comply with such a requirement, they would have to show a fifteen minute video before allowing you to leave with your rental car. That quashed that movement pretty quickly.
One of J.R.R. Tolkien's lesser-known but quite delightful works is Smith of Wooton Major. In the town of Wooton Major, the Master Baker, as the culmination of his career, makes a "Great Cake" to be shared by 24 children. In each slice of cake is baked a surprise, one for each child. One child, Smith, does not find a surprise in his slice; instead he swallows it. The surprise, though, is a special star that, having been swallowed, appears on Smith's forehead, and that star is his passport to meeting the king and queen of Faery.
I worry that if this trend keeps up, and I read this story to my as yet unborn grandchilden, one of them will ask, "Did the children have to sign a waiver before they could eat the cake?"
Food Liability 2010: More of the Same and Landmark Change?
We’re in the “crystal-ball” season—time to look forward and assess what’s coming in 2010 and beyond. The most likely scenario: more of the same and landmark change.
More of the Same
The last few years have seen growth in both the number of food-borne illnesses detected and the variety of foods affected. This is because more resources are being put into detection (though the CDC recently reported an overall decline in epidemiological capacity by the states) and technology is continuing to advance (think Next Generation Sequencing). There’s little reason to believe these trends will abate in 2010. Expect more outbreaks. Expect to hear about recalls of products not previously implicated in food-borne illness.
Landmark Change
Nobody doubts that we’re in the midst of the most significant legislative and regulatory changes in food safety in generations. Most believe that Congress will pass some form of food safety legislation (e.g., S 510 or HR 2749) in the new year. It will likely include the most comprehensive food safety reform in decades. Among other things, this legislation is likely to give FDA mandatory recall power and great authority for risk-based inspections, and require FDA to create a traceability program.
FDA and USDA are already pushing the boundaries of their current authority to become more aggressive on food safety and labeling enforcement. Examples include USDA moving toward classification of Salmonella as an adulterant, more aggressive rules on ground beef safety, and increased retail enforcement. FDA is already studying how traceability could work, being more aggressive in identifying products and retailers in the event of recalls, reexamining the effectiveness of current nutritional labeling requirements, and investigating whether front of pack nutrition labeling (FOP) practices need to be regulated.
And on the heels of legislative reform and increased regulatory enforcement come the lawyers. Action by the government creates new avenues for the plaintiffs’ bar. Food litigation will likely increase in prevalence both in product liability claims (i.e., food contamination) and in putative consumer fraud class claims into 2010 and beyond.
New Reporting Requirements For Companies That Make Payments to Medicare Recipients in Personal Injury Lawsuits or Workers' Compensation Claims
By Guest Blogger Emily Grande
A few weeks ago, I attended the Grocery Manufacturer Association’s webinar on Consumer Complaint Management – Current Issues and Effective Procedures. One important topic covered was the new Medicare reporting requirements for self-insured companies that are defendants in personal injury lawsuits or that are paying workers’ compensation claims. If a company satisfies a judgment or settles with a personal injury plaintiff who is a Medicare recipient, the company must report the payment to Medicare, as required by Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007. These new reporting requirements were enacted to save the government’s health care programs money by arming them with the information needed to recover payments made to Medicare recipients for medical expenses in personal injury and workers’ compensation cases. In such cases, the defendant, not Medicare, is responsible for the plaintiff’s health care bills. The eye-popping penalty for a company’s failure to report payments to Medicare recipients is $1,000 per day per claim. In addition, Medicare can pursue legal action against the settling company if it fails to ensure that Medicare is reimbursed regardless of whether the company has already paid the plaintiff. As if that weren’t enough, Medicare can pursue double damages.
The registration deadline for the program was September 30, 2009, but there do not appear to be penalties for failing to register on time. The first required reporting period is the second quarter of 2010. All personal injury settlements made after January 1, 2010 must be reported, and all workers’ compensation claims considered “open” on January 1, 2009 must be reported.
A guide for responsible reporting entities can be found at the Centers for Medicare & Medicaid Services website.
The presenter at the GMA’s webinar was attorney Thomas S. Thornton III and his presentation slides are available here.
The Wall Street Journal on "Bagel-Related Injuries"
Where I grew up, there was a bagel bakery, or "bagel factory" as we called them, in every strip mall. One of them was owned by the husband of my high school English teacher, and one day in class she demonstrated to us proper bagel sliciing technique. It must have made an impression, because I remember it--and use it--to this day. What you do is to slice halfway into the bagel toward you, and then turn the bagel around to slice outward from the middle. I don't recall ever cutting myself while cutting a bagel.
According to the Wall Street Journal, I'm in the minority, and "bagel-related injuries" are a prime source of danger, with 1,979 people showing up in emergency rooms in 2008 because of improper bagel slicing technique. This obviously does not include those who cut themselves but did not require a visit to the emergency room.
There is a small industry of bagel-slicing devices intended to help you avoid bagel-related injuries. The Journal article has a whole video on them. Because I make my own bagels, I've been given many of them as gifts over the years, including the Brooklyn Bagel Slicer featured in the article. I still just prefer to slice the bagel with a knife however.
According to the article, there are more "chicken-related injuries" than any other food injuries. These are compiled by the National Electronic Injury Survey System, an arm of the U.S. Consumer Products Safety Commission. As far as I can tell, the chicken-related injuries must have been injuries from the use of some kind of tool when cooking chicken, not, say, getting a bone caught in one's throat, because the NEISS Coding Manual says not to code injuries from food.
Levine v. Vilsack: The Ninth Circuit Rules the Humane Methods of Slaughter Act Provides No Remedy
When Congress passes a statute and the Secretary of Agriculture issues a notice in the Federal Register interpreting the statute, it might seem self-evident that someone who believes that interpretation is wrong can appeal that interpretation in court and get a judgment on the merits. On November 18, the Ninth Circuit Court of Appeals said "not so fast."
The decision is a valuable reminder that just because you might allege a wrong, you will not necesarily be entitled to a remedy. The Ninth Circuit does a good job of making sure that the threshold question of standing must be answered satisfactorily before any other allegations in a complaint are reached. When, as here, it finds it not satisfied, the case is over.
The case was Levine v. Vilsack, and it involved what seemed at first a straightforward issue of statutory interpretation. The Humane Methods of Slaughter Act of 1958 ("HMSA of 1958") is the bedrock federal statute dealing with the means of slaughter of livestock. The key provision of the act, 7 U.S.C. Section 1902, provides as follows:
No method of slaughtering or handling in connection with slaughtering shall be deemed to comply with the public policy of the United States unless it is humane. Either of the following two methods of slaughtering and handling are hereby found to be humane:
(a) in the case of cattle, calves, horses, mules, sheep, swine, and other livestock, all animals are rendered insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast, or cut; or
(b) by slaughtering in accordance with the ritual requirements of the Jewish faith or any other religious faith . . . .
The simple question presented in Levine was whether the phrase bolded above, "and other livestock", included fowl. Almost from the time the statute was first enacted, and most recently in 2005, the Secretary of Agriculture ruled that it did not. Levine along with a host of other plaintiffs, including The Humane Society of the United States, sued to overturn this interpretation.
The district court dismissed the case, treating it as a relatively straightforward case of statutory interpretation and agency discretion. The Ninth Circuit (perhaps wary of Justice Scalia's well-known dislike of legislative history) took a different tack.
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