Opinion
Civil Action No. 03-2334.
March 31, 2004
MEMORANDUM
Presently before the Court is Defendant Pilgrim's Pride Corporation's Motion to Dismiss Plaintiff's Complaint, Plaintiff's response thereto, Defendant Jack Lambersky Poultry Company's Motion to Dismiss later converted to a Motion for Partial Summary Judgment, and Plaintiff's opposition. Because the motions are nearly identical in substance, the Court will consider these motions together, while applying the appropriate standards of review to each.
I. BACKGROUND
Plaintiff, Ms. Lawese Drayton filed this complaint against Defendants Pilgrim's Pride Corporation ("Pilgrim's Pride") and Jack Lambersky Poultry Company d/b/a J.L. Foods ("J.L. Foods"), seeking damages for the death of her husband Raymond Drayton. Mr. Drayton died on September 1, 2002, after ingesting meat products purchased in August 2002 that were tainted with a particular strain of Listeria Moncytogenes ("the Outbreak Strain").
Plaintiff alleges that the CDC traced the Outbreak Strain back to both the Pilgrim's Pride and J.L. Foods processing plants. The Philadelphia Department of Public Health confirmed that Mr. Drayton had been killed by the Outbreak Strain of Listeria Monocytogenes (" Listeria").
In paragraph 11 of Plaintiff's complaint she states that of the twenty-six samples that tested positive for Listeria at the Pilgrim's Pride plant, three were genetically identical to the Outbreak strain. In addition, at least one Listeria sample at the JFL plant was genetically identical to the Outbreak strain.
Defendant Pilgrim's Pride is a Delaware corporation with its principal place of business located in Pittsburg, Texas. Pilgrim's Pride is registered to do business in Pennsylvania and produces ready-to-eat (RTE) poultry products at its processing plant located in Franconia, Pennsylvania. Pilgrim's Pride claims that none of the poultry products it recalled, distributed or sold were ever identified as tainted by the Outbreak Strain. However, on October 12, 2002, Pilgrim's Pride initiated a recall of approximately 27 million pounds of certain turkey products produced at its Franconia plant between May 1, 2002 and October 11, 2002.
Defendant J.L. Foods is a New Jersey corporation with its principal place of business in Camden, New Jersey. J.L. Foods produces RTE poultry products at its processing plant in Camden, New Jersey. On November 20, 2002, J.L. Foods initiated a recall of 4.2 million pounds of certain RTE turkey products it produced at its Camden processing plant between May and October 2002.
Plaintiff alleges that upon information and belief, both Defendants had prior notice that their meat products were contaminated, but did not take corrective action until they initiated the recall in October and November respectively. Plaintiff also alleges that Pilgrim's Pride's Franconia plant had numerous citations for the types of sanitation violations that fostered the growth of Listeria.
Plaintiff's complaint arises out of the law of Pennsylvania. Count I of the complaint is an action for negligence-wrongful death, specifically that "Defendants had a duty to use reasonable care in the manufacturing, packaging, supplying, marketing, selling, advertising and otherwise distributing their meat products[,]" (Pl. Compl. ¶ 21) and that Defendants breached that duty by:
a. Failing to adequately and properly test and inspect their meat products so as to ascertain whether or not they were safe and proper for the purpose for which they were designed, manufactured, and sold;
b. Failing to utilize and/or implement a reasonably safe design in their manufacture of meat products;
c. Failing to manufacture meat products in a reasonably safe condition for the purpose for which they were intended;
d. Failing to adequately and properly label their meat products so as to alert consumers of risks of disease and complications;
e. Manufacturing meat products which constituted a hazard to the public health;
f. Failing to adequately and properly warn plaintiff of the risks of disease and complications in consuming their meat products;
g. Failing to institute a timely recall of their meat products;
h. Failing to institute a proper recall of their meat products; and
i. Engaging in other acts and/or omissions that were otherwise careless and negligent.
(Pl. Compl. ¶ 22). Count II of Plaintiff's Complaint is a negligence survival action that incorporates the above nine alleged breaches of duty. Count III alleges a violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), in that Defendants allegedly failed to disclose and actively conspired to conceal material facts by deceiving customers about the quality, safety and reliability of their RTE poultry products. Count IV is a strict liability claim.
II. STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(6) is granted where the plaintiff fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). This motion "may be granted only if, accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 481 (3d Cir. 2000). While the Court must accept all factual allegations in the complaint as true, it "need not accept as true `unsupported conclusions and unwarranted inferences.'" Doug Grant, Inc. v. Greater Bay Casino Corp., 232 F.3d 173, 184-85 (3d Cir. 2000), citing City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 n. 13 (3d Cir. 1997). In a 12(b)(6) motion, the defendant bears the burden of persuading the Court that no claim has been stated. Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
A motion for summary judgment will be granted where all of the evidence demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Since a grant of summary judgment will deny a party its chance in court, all inferences must be drawn in the light most favorable to the party opposing the motion. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The ultimate question in determining whether a motion for summary judgment should be granted is "whether reasonable minds may differ as to the verdict." Schoonejongen v. Curtiss-Wright Corp., 143 F.3d 120, 129 (3d Cir. 1998). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.
III. DISCUSSION
Defendants argue that parts of Plaintiff's common law negligence claims and all of Plaintiff's statutory consumer fraud claims are preempted by the express preemption clause of the Poultry and Poultry Products Inspection Act ("PPIA"), 21 U.S.C. § 452 et. seq.. Congress enacted the PPIA to establish uniformly applied inspection standards to prevent the distribution and sale of adulterated or misbranded poultry products. 21 U.S.C. § 452. The PPIA sets standards for acceptable poultry products, directs specific labeling requirements and provides for inspections by the United States Department of Agriculture's ("USDA") Food Safety and Inspection Service. 21 U.S.C. § 455-458. In addition, the PPIA specifically preempts state regulation that seeks to add to or conflict with the requirements under the PPIA. 21 U.S.C. § 467e. This preemption provision specifically provides:
Requirements within the scope of this Act [ 21 U.S.C. § 451 et seq.] with respect to premises, facilities and operations of any official establishment, which are in addition to, or different than those made under this Act may not be imposed by any State. . . . Marking, labeling, packaging, or ingredient requirements (or storage or handling requirements found by the Secretary to unduly interfere with the free flow of poultry products in commerce) in addition to, or different than, those made under this Act may not be imposed by any State . . . with respect to articles prepared at any official establishment in accordance with the requirements under this Act, but any State . . . may, consistent with the requirements under this Act, exercise concurrent jurisdiction with the Secretary over articles required to be inspected under this Act, for the purpose of preventing the distribution for human food purposes of any such articles which are adulterated or misbranded and are outside of such an establishment, or, in the case of imported articles which are not at such an establishment, after their entry into the United States. This Act shall not preclude any State . . . from making requirement or taking other action, consistent with this Act, with respect to any other matters regulated under this Act.21 U.S.C. § 467e.
A. Preemption
The Supremacy Clause of the United States Constitution states that the laws of the United States "shall be the supreme law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art VI, cl. 2. Thus, "any state law that conflicts with Federal law is `without effect.'" Cipollone v. Liggett Group, Inc., 505 U.S. 504, 526 (1992) (internal citations omitted). Federal regulations preempt state law with the same force and effect as the Federal statutes under which they are promulgated. Fidelity Fed. Sav. And Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982).
The courts recognize three types of preemption: express, field and conflict preemption. Express preemption occurs when there is clear statutory directive displacing state law on a particular subject matter. Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992). Field preemption arises when federal law "so thoroughly occupies a legislative field as to make reasonable the inference the Congress left no room for the States to supplement it," Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 120 L.Ed.2d 407, 112 S.Ct. 2608 (1992). Conflict preemption occurs "when compliance with both state and federal law is impossible, or when the state law `stands as an obstacle to the accomplishment and execution of the full purposes and objective of Congress.'" United States v. Locke, 529 U.S. 89, 109 (2000) (quoting California v. ARC America Corp., 490 U.S. 93, 100-101(1989)). State common law causes of action may be preempted by federal law if the cause of action would impose, through the award of damages, requirements other than those found in federal law. N.W. Transport Co. v. Kalo Brick Tile, Co., 450 U.S. 311 (1981).
When considering whether a cause of action is preempted by federal law the courts must determine the preemptive scope of a federal statute. In doing so, the Court relies upon two presumptions relating to preemption. The first is that when determining whether a state cause of action is preempted by federal law, the courts "start with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). There is thus a strong presumption against preempting state common law and statutory provisions regulating areas historically within the state's police power that the Defendants must overcome in order to make their case. Second, the Court must consider the purpose Congress had in enacting the federal law. Id. at 485-86 (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 530 (1992)).
Previous courts found state laws attempting to provide additional or different labeling or marking requirements preempted by the PPIA. National Broiler Council v. Voss, 44 F.3d 740, 743-47 (9th Cir. 1994); Grocery Mfrs. of America, Inc. v. Gerace, 581 F. Supp. 685 (S.D.N.Y. 1984). However, one Court of Appeals has recognized that the PPIA does not completely preempt state law causes of action, because it does not provide a private right of action within the statute. Rogers v. Tyson Foods, Inc. 308 F.3d 785, 788 (7th Cir. 2002).
1. Plaintiff's Common Law Causes of Action
The Defendants challenge three of the alleged breaches of duty incorporated in Counts I and II of Plaintiff's complaint. Specifically:
a. Failing to adequately and properly test and inspect their meat products so as to ascertain whether or not they were safe and proper for the purpose for which they were designed, manufactured, and sold;
* * *
d. Failing to adequately and properly label their meat products so as to alert consumers of risks of disease and complications; . . .
* * *
f. Failing to adequately and properly warn plaintiff of the risks of disease and complications in consuming their meat products;
(Pl. Compl. ¶ 22).
a. Negligent failure to test and inspect
The first alleged breach of duty challenged by the Defendants is Plaintiff's claim that Defendants negligently failed to adequately test and inspect their poultry products to ensure their safety. Defendants argue that this claim is preempted, because neither the PPIA nor its implementing regulations imposes mandatory testing requirements upon RTE poultry products manufacturers. Instead, all testing is carried out by the Food Safety and Inspection Service ("FSIS").
On March 11, 1987, the FSIS published a notice in the Federal Register announcing expanded testing of meat and poultry products for Listeria Monocytogenes and officially classifying the contaminant as an adulterant. 52 Fed. Reg. 7464 (Mar. 11, 1987). Beginning with this classification, the FSIS has emphasized a "zero tolerance" policy with regard to Listeria. 68 Fed. Reg. 34208, 34209 (June 6, 2003). This policy is in line with the PPIA that prohibits adulterated food from being sold or distributed. 21 U.S.C § 458(a). In May 1999, the FSIS promulgated to official establishments its guidelines for controlling Listeria contamination. 64 Fed. Reg. 28351 (May 26, 1999). In that notice, the FSIS required official establishments to reassess their Hazard Analysis and Critical Control Point ("HACCP") plans to determine if Listeria posed a likely threat to the establishment's production process.Id. If establishments determined there was a threat of Listeria contamination, then they were required to address the contamination issue in their HACCP plan. Id. In conjunction with this notice, the FSIS published " Listeria Guidelines for Industry," a document designed to assist establishments in reassessing their HACCP plans with respect to the danger posed by Listeria. Food Safety Inspection Service, " Listeria Guidelines for Industry" (May 1999) available at http://www.fsis.usda.gov/OA/topics/lmguide.htm. As part of the Guidelines, the FSIS recommends establishments adopt environmental testing programs. Such programs "can be a means of confirming that the establishment's controls are effective in maintaining a plant environment that will minimize the hazard of pathogens including Listeria monocytogenes." Id. In addition to environmental testing, the FSIS recommended end-product sampling of RTE products as another way to assess the danger of Listeria contamination. In fact, the FSIS states unequivocally that "Establishments with limited resources should establish end product sampling as their top priority." Id. Thus, although self testing for Listeria contamination by poultry producers is not mandatory, it is strongly recommended by the FSIS, and in fact seems the only way to properly comply with the HACCP reassessment directive.
This zero tolerance policy means that RTE poultry products are not allowed to have any detectable levels of Listeria. 68 Fed. Reg. 34208, 34209 (June 6, 2003).
An official establishment is defined in the PPIA as "any establishment as determined by the Secretary at which inspection of the slaughter of poultry, or the processing of poultry products, is maintained under authority of [PPIA]." 21 U.S.C. § 453(p). Both Defendants are official establishments under the law.
Given the above guidance from the FSIS, the Court finds that at the very least the PPIA's regulations and requirements do not conflict with a duty to test and in fact, may encompass such a duty. There is a question of fact for a jury as to whether or not Defendants Pilgrim's Pride and J.L. Foods sufficiently complied with the HACCP reassessment directive. However, because the requirement to test is not in conflict with or in addition to the requirements of the PPIA, the Plaintiff's state causes of action are not preempted. Therefore the court finds that these claims survive both Defendant Pilgrim's Pride's motion to dismiss and Defendant J.L. Foods' motion for partial summary judgment.
b. Negligent Failure to label
The Plaintiff concedes that this alleged breach of duty is preempted by the PPIA, therefore the court dismisses this portion of counts I and II as to Defendant Pilgrim's Pride and grants summary judgment on this count as it applies to Defendant J.L. Foods.
c. Negligent Failure to warn
Plaintiff claims Defendants knew or reasonably should have known that their products contained Listeria and failed to adequately warn her and the decedent of this fact. The PPIA does not preempt in this instance, because Plaintiff's claim does not entail labeling. Instead, Plaintiff's claim is that once the Defendants knew of the contamination, they did not take sufficient steps to warn the Plaintiff and the decedent that their poultry products were adulterated. As explained above, the FSIS has designated Listeria as an adulterant, and under the PPIA, poultry processors are not permitted to sell or distribute adulterated meat. 21 U.S.C § 458(a). Therefore it seems well within the purpose of the PPIA to hold Defendants responsible if they knew they had distributed adulterated products and failed to advise the consuming public — the class of persons the statute was designed to protect. Although Plaintiff must still present evidence to prove her case, at this stage in the discovery process she has alleged enough to withstand Defendant Pilgrim's Pride's Motion to Dismiss. Because there are still triable issues of fact related to this claim, Defendant's Motion for Summary judgment on this claim is also denied.
d. Plaintiff's Uniform Trade Practices and Consumer Protection Law claim
Those parts of Plaintiff's UTPCPL claim that relate to packaging or labeling are conceded by Plaintiff as preempted by PPIA. As to the other parts of the claim relating to advertising, and promotion of Defendant's meat products, for the reasons stated above, Plaintiff's UTPCPL claim is not preempted as it does not conflict with or enforce additional requirements from those of the PPIA. The PPIA prohibits poultry processors to sell or distribute adulterated meat. If Defendants sold adulterated meat, they are in violation of the PPIA. Plaintiff alleges in her complaint that Defendants knew the poultry products were adulterated and sought to conceal that fact from government regulators and consumers. In addition, Plaintiff alleges Defendants intended for Plaintiff and other consumers to rely upon their marketing and advertising that they were "in compliance with the requirements and regulations of the USDA and FDA, including, without limitation, the zero tolerance for Listeria monocytogenes in cooked, ready-to-eat foods and that the meat products do not require additional cooking." (Pl. Compl. ¶ 35). This is sufficient to sustain this claim, against Defendants' preemption arguments, both on the Motion to Dismiss and the Motion for Summary Judgment.
Defendants argue that Plaintiff's UTPCPL claim is not pled with sufficient particularity as required by Fed.R.Civ.P. 9(b). Rule 9(b) of the Federal Rules of Civil Procedure requires that "in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. Rule 9(b). The purpose of Rule 9(b) is to give defendants enough information to clearly ascertain the nature and scope of the plaintiff's claim. In this case, the Court notes that Defendant J.L. Foods filed an answer to Plaintiff's complaint. This seems prima facie evidence that the Defendants were sufficiently able to understand the scope and thrust of the Plaintiff's fraud allegation.
Nonetheless, Defendants contend that under the Pennsylvania Supreme Court holding in Weinberg v. Sun Co. Inc., 777 A.2d 442 (Pa. 2001), plaintiffs must still plead the "traditional common law elements of reliance and causation." Weinberg, 777 A.2d at 446. The Weinberg case involved a false advertising claim against a gasoline company that allegedly induced customers to buy higher octane gas when their cars did not require it. Plaintiff argues that Weinberg does not apply because it considered a UTPCPL claim where the plaintiff did not hear the misleading advertisement. In the case at bar, Defendants were under an affirmative duty to warn consumers, and did not. Instead, Plaintiff alleges, Defendants claimed in their advertisements and other marketing that they were in compliance with USDA and FDA regulations.
Because the present case deals with a dangerous defect known by the Defendant poultry processors, but not known or discoverable by the Plaintiff or other consumers, Plaintiff urges the court to instead follow the Pennsylvania Court of Common Pleas in Zwiercan v. General Motors Corp., 2002 WL 31053838, 58 Pa. D. C. 4th 251 (Pa. Com. Pl. 2002). In that case, the court held that the UTPCPL applied but did not require the Plaintiff to prove reliance, because the manufacturer knew of, and failed to disclose to consumers, a safety defect in the seats of its cars. The court held that under the UTPCPL "a manufacturer has a duty to disclose a know latent defect to a purchaser when the purchaser is unsophisticated and does not have access to the same information as the manufacturer." 2002 WL 31053838 at *3, 58 Pa. D. C. 4th at 259. Reliance can be presumed in this type of case, because a consumer must rely upon what the manufacturer discloses in order to make a purchasing decision. If a manufacturer does not disclose material information it was duty bound to provide, then the customer may be presumed to have relied upon the manufacturer's silence.
This Court finds Zwiercan's reasoning persuasive. Although in normal UTPCPL false advertising claims reliance is required, this case is like Zwiercan in that Defendants allegedly knew their product was adulterated and therefore dangerous, and would therefore have a duty to advise unsophisticated consumers of that material fact or not advertise their products as being in compliance with USDA and FDA regulations. For these reasons, Defendant Pilgrim's Pride's Motion to Dismiss and Defendant J.L. Foods' Motion for Partial Summary Judgment are denied as to the claim's requisite specificity. Defendant Pilgrim's Pride's Motion to Dismiss and Defendant J.L. Foods' Motion for Partial Summary Judgment are granted in part, on the basis of preemption, as to those sections of the claim relating to packaging and labeling.
IV. CONCLUSION
For all the forgoing reasons, Defendant Pilgrim's Pride's Motion to Dismiss and Defendant J.L. Foods' Motion for Partial Summary Judgment are denied, except as to the Count I and Count II claims for negligent labeling and the part of Count III relating to packaging and labeling for which both Defendant's Motions are granted.
An appropriate order follows.