When is Food “Defective”?

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Judge David Carter of the Central District of California answered this question recently in the Peterson v. Costco Wholesale Co.  In Peterson, a Hepatitis A outbreak in the western United States was linked to the consumption of a berry mix sold at Costco locations.  Plaintiffs sued Costco, asserting strict liability and other common law claims.  Judge Carter certified nine single-state subclasses for the purposes of determining liability.

Most recently, the question posed at summary judgment was whether plaintiffs could “demonstrate any defect in the berry mix.”  Petersen v. Costco Wholesale Co., 2017 WL 187134, at *4 (C.D. Cal. Jan. 17, 2017).  An answer in the affirmative was needed for plaintiffs’ strict liability claim to proceed.

Costco argued there was no evidence of a defect, contending that plaintiffs should have to demonstrate that they each “ate berry mix that was actually contaminated with hepatitis A and thus each … was actually exposed to hepatitis A.”  Plaintiffs countered that the berry mix was defective because, anyone who ate the berries urgently needed to obtain a hepatitis A vaccination. And Costco replied that, if plaintiffs’ theory was accepted, then the court would be saying that as a matter of law, “a recall alone demonstrates defect in the recalled products.”

Judge Carter sided with the plaintiffs:

the mere fact of a recall is insufficient to render a defendant liable under a theory of strict products liability to everyone who purchased a recalled product.

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