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. But, the Plaintiffs are not asserting that a recall creates strict products liability, and are instead advancing a more nuanced argument. The thrust of Plaintiff’s argument is that the berry mix was defective because it was unfit for human food.
Judge Carter then held that there was proof that the berry mixes were defective. First, because nobody would choose to buy food contaminated with hepatitis, nor would Costco, or any other retailer, put into the marketplace a berry mix knowing that people who ate the berries would be exposed to hepatitis A. Second, Costco sent a letter specifically stating that the berry mix should not be consumed, and directing anyone who had potentially eaten the berry mix in the previous fourteen days to obtain a vaccine. The court therefore agreed with plaintiffs “that a food item that the manufacturer has deemed unfit for consumption and requires consumers to urgently obtain a vaccination is defective.”
Judge Carter went on to explain why this holding was not unduly broad, since everyone who consumed the berries and needed a vaccine had been harmed – even if they never contracted hepatitis A:
…[I]n most cases of food contamination there is little to be done once the possibly contaminated food has been consumed. A person must often wait to see if she develops an illness or not. … The facts here are different though, in that one can take a vaccine before symptoms of hepatitis A manifest, but after infection, to avoid contracting the illness. Of course, any rational person faced with the choice between potentially contracting hepatitis A and getting a vaccine would get the vaccine, assuming no special personal circumstances. Therefore, in this situation, a consumer exposed to the defective berries must bear the costs and burdens of obtaining a vaccine in a timely fashion, where in other situations this might not be true.