Opinion
CIVIL ACTION NO.: 10-CV-04367(CS) (LMS)
09-30-2011
LEE PORRAZZO, Plaintiff, v. BUMBLE BEE FOODS, LLC and THE STOP & SHOP SUPERMARKET COMPANY, LLC Defendants.
KILLERLANE LAW OFFICES Christina M. Killerlane, Esq. Thomas lannuccilli, Esq. Attorneys for Plaintiff LEE PORRAZZO
MEMORANDUM OF LAW
PLAINTIFF LEE PORRAZZO'S MEMORANDUM OF LAW
IN OPPOSITION TO THE DEFENDANTS' MOTION TO DISMISS
THE PLAINTIFF LEE PORRAZZO'S AMENDED COMPLAINT
FOR FAILURE TO STATE A CLAIM
KILLERLANE LAW OFFICES
Christina M. Killerlane, Esq.
Thomas lannuccilli, Esq.
Attorneys for Plaintiff
LEE PORRAZZO
TABLE OF CONTENTS
+------------------------------------------------------------------+ +----------------------------------------------------------+-------¦ ¦STATEMENT OF FACTS ¦1-4 ¦ +----------------------------------------------------------+-------¦ ¦I. THE AMENDED COMPLAINT ¦4 ¦ +----------------------------------------------------------+-------¦ ¦II. THE FDA HAS NOT REGULATED EITHER THE RISK ¦ ¦ ¦ ¦ ¦ ¦OF MERCURY IN TUNA OR THE PERMISSIBLE WARNINGS ¦4 ¦ ¦ ¦ ¦ ¦REGARDING THAT RISK ¦ ¦ +----------------------------------------------------------+-------¦ ¦ARGUMENT ¦5-32 ¦ +----------------------------------------------------------+-------¦ ¦POINT I: ¦ ¦ ¦ ¦ ¦ ¦THE PLAINTIFF'S AMENDED COMPLAINT CLEARLY ¦5-9 ¦ ¦ ¦ ¦ ¦PASSES THE TWOMBLY/IOBAL STANDARD ¦ ¦ +----------------------------------------------------------+-------¦ ¦POINT II: ¦ ¦ ¦ ¦ ¦ ¦THE PLAINTIFF'S AMENDED COMPLAINT CLEARLY ¦ ¦ ¦ ¦9 ¦ ¦ALLEGES INJURIES PROXIMATELY CAUSED BY HIS ¦ ¦ ¦ ¦ ¦ ¦CONSUMPTION OF CANNED TUNA ¦ ¦ +----------------------------------------------------------+-------¦ ¦POINT III: ¦ ¦ ¦ ¦ ¦ ¦SINCE THE PLAINTIFF'S AMENDED COMPLAINT ¦ ¦ ¦ ¦ ¦ ¦ADEQUATELY DESCRIBES HIS PHYSICAL INJURIES ¦10 ¦ ¦ ¦ ¦ ¦CAUSED BY THE DEFENDANTS' PRODUCT, HIS CLAIMS ¦ ¦ ¦ ¦ ¦ ¦FOR EMOTIONAL DISTRESS SHOULD STAND ¦ ¦ +----------------------------------------------------------+-------¦ ¦POINT IV: ¦ ¦ ¦ ¦ ¦ ¦ac4384 47d97b4921b191394b38db0c8c4384 47d97ba ¦ ¦ ¦ ¦ ¦ ¦SHOULD BE DISMISSED, SINCE THE PLAINTIFF'S USE ¦ ¦ ¦ ¦ ¦ ¦OF THE DEFENDANTS' PRODUCT WAS FORESEEABLE ¦ ¦ ¦ ¦ ¦ ¦AND/OR, SINCE THERE WAS NO WARNING GIVEN BY THE ¦11-19 ¦ ¦ ¦ ¦ ¦DEFENDANTS AS TO THEIR PRODUCT'S MERCURY ¦ ¦ ¦ ¦ ¦ ¦CONTENT AND/OR SINCE THERE IS NO EVIDENCE TO ¦ ¦ ¦ ¦ ¦ ¦SUGGEST THAT CONSUMERS REASONABLY EXPECT ¦ ¦ ¦ ¦ ¦ ¦CANNED TUNA TO CONTAIN MERCURY ¦ ¦ +----------------------------------------------------------+-------¦ ¦POINT V: ¦ ¦ ¦ ¦ ¦ ¦THE PLAINTIFF'S AVERAGE CONSUMPTION OF ¦ ¦ ¦ ¦19 ¦ ¦LESS THAN TWO (2) CANS OF TUNA PER DAY WAS ¦ ¦ ¦ ¦ ¦ ¦REASONABLE ¦ ¦ +----------------------------------------------------------+-------¦ ¦POINT VI: ¦ ¦ ¦ ¦ ¦ ¦THE PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES ¦ ¦ ¦ ¦19-20 ¦ ¦IS NOT INDEPENDENT, BUT INTRICATELY TIED TO ¦ ¦ ¦ ¦ ¦ ¦HIS CLAIM OF DAMAGES DUE TO THE DEFENDANTS' RECKLESSNESS ¦ ¦ +------------------------------------------------------------------+
+----------------------------------------------------------+ ¦POINT VII: ¦ ¦ ¦ ¦ ¦ ¦THE PLAINTIFF'S SECOND CAUSE OF ACTION ¦ ¦ ¦ ¦ ¦ ¦AGAINST THE DEFENDANT STOP & SHOP FOR ¦ ¦ ¦ ¦20-23 ¦ ¦BREACH OF EXPRESS AND/OR IMPLIED WARRANTY ¦ ¦ ¦ ¦ ¦ ¦AND/OR FOR NEGLIGENCE AND THE FAILURE TO ¦ ¦ ¦ ¦ ¦ ¦WARN SHOULD STAND ¦ ¦ +--------------------------------------------------+-------¦ ¦POINT VIII: ¦ ¦ ¦ ¦ ¦ ¦THE PLAINTIFF'S CLAIMS MADE UNDER NEW YORK ¦ ¦ ¦ ¦23-25 ¦ ¦STATE AGRICULTURE AND MARKETS LAW SECTIONS ¦ ¦ ¦ ¦ ¦ ¦199-a(l), 200 and 201 SHOULD BE ALLOWED TO STAND ¦ ¦ +--------------------------------------------------+-------¦ ¦POINT IX: ¦ ¦ ¦ ¦ ¦ ¦SINCE THE FELLNER COURT COMPLETELY ¦ ¦ ¦ ¦ ¦ ¦ADDRESSES AND DISMANTLES ALL OF THE ¦ ¦ ¦ ¦26-32 ¦ ¦ARGUMENTS EXACTLY MADE BY THE DEFENDANTS ¦ ¦ ¦ ¦ ¦ ¦HEREIN, THE PLAINTIFF'S CLAIMS ARE NOT ¦ ¦ ¦ ¦ ¦ ¦PREEMPTED BY FEDERAL LAW ¦ ¦ +--------------------------------------------------+-------¦ ¦CONCLUSION ¦32-33 ¦ +----------------------------------------------------------+
STATEMENT OF FACTS
I. THE AMENDED COMPLAINT
The plaintiff, LEE PORRAZZO, alleges that he purchased from Stop & Shop and then consumed approximately ten (10) six ounce cans of Bumble Bee tuna fish per week from January 2006 through October of 2008. See Defendants' Exhibit A, the plaintiff's Amended Complaint, at paragraph 1. Thus, according to the Amended Complaint, over this thirty three (33) month period, the plaintiff consumed less than two (2) six ounce cans of Bumble Bee tuna fish per day. By consuming ten (10) six ounce cans, or 60 ounces of tuna fish per week, the plaintiff ate an average of 8.57 ounces of tuna fish per day and thus, can be seen as the ideal Bumble Bee tuna fish consumer. The Amended Complaint clearly states how, why and what purportedly made the defendant BUMBLE BEE canned tuna fish unsafe and dangerous for consumption, namely, that it contained poisonously high levels of mercury, which is a tasteless, odorless, colorless and poisonous heavy metal. See Defendants' Exhibit A at paragraph 4.
In this time period from approximately January of 2006 to October 2008, the defendant BUMBLE BEE lauded its canned tuna's positive attributes such as it being an excellent source of high quality protein, vitamins, minerals and Omega 3 fatty acids, as well as being low in saturated fat and carbohydrates, and touted its product as being "heart healthy". See Defendants' Exhibit A at paragraph 3. It is impossible for a lay person/consumer such as this plaintiff, LEE PORRAZZO, to provide information about how the mercury levels in each can of Bumble Bee tuna fish were poisonous or dangerous, or identify the quantities of tuna needed to be consumed in order to be poisonous or dangerous.
As a result of eating the defendant BUMBLE BEE's tuna fish product, namely six (6) ounce cans, the plaintiff experienced, two to three times per week, episodes of chest pains, heart palpitations, sweatiness, dizziness and lightheadedness, all of which gave the plaintiff the impression that he had a heart condition. See Defendants' Exhibit A at paragraph 5. At one point, the plaintiff was so worried that he was having a heart attack, he went to the White Plains Hospital emergency room to be treated. See Exhibit A at paragraph 6. For this previously described condition, the plaintiff sought medical treatment from his primary care physician and heart specialists, none of whom could diagnose what was causing the foregoing frightful episodes. See Defendants' Exhibit A at paragraph 6.
However, on or about October 1, 2008, the plaintiff's primary care doctor, Alan Jaffe, M.D., ordered a heavy metals blood test which showed the plaintiff, LEE PORRAZZO, to have a dangerously high level of mercury in his blood, namely 23 mcg/l, as opposed to less than 10 mcg/l, which is normal. As can be seen, the mercury level was not "slightly elevated" but over two (2) times that of normal. See Defendants' Exhibit A at paragraph 7.
In his Complaint, the plaintiff, LEE PORRAZZO, alleges that the elevated mercury level in his blood and the resultant heart attack-like symptoms were caused by the latent defective, dangerous condition of poisonously high levels of mercury contained in the defendant Bumble Bee tuna fish's product. See Defendants' Exhibit A at paragraphs 10, 23, 39, 44 and 49. Furthermore, with respect to causality, the plaintiff, PORRAZZO, also states with particularity that the defendants knew, or should have known, that regular consumption of their tuna fish product would be dangerously unsafe due to the mercury level contained within it. See Defendants' Exhibit A, paragraph 10.
Most importantly, with regard to the defendant, BUMBLE BEE, it knew, since at least 1998, that its canned tuna fish product, which was sold to the public, and specifically to the plaintiff, PORRAZZO, contained mercury. This fact can be gleaned from the case of People ex rel. Brown v. Tri-Union Seafoods. LLC. 171 Cal. App. 4th 1549 (ls1 Dist. 2009) cited by the Defendants at page 16, section B in their Memorandum of Law. In the People ex rel. Brown case, the Respondent tuna companies (Tri-Union Seafoods, LLC, Bumble Bee Seafoods, LLC,) admitted that they knew since at least 1998 that all the canned and packaged tuna products they distributed in California contained detectable traces of methylmercury which substance the California Appellate Court described as a potent neurotoxic agent. Id. at 1553. A Court may take judicial notice of another Court's decision in a different case involving some of the same parties. See. Young v. Augusta. Ga., 59 F.3d 1160 (1 l1h Cir. 1995), or in prior litigation involving closely related parties. See, St. Louis Baptist Temple v. FDIC. 605 F.2d 1169 (10th Cir. 1979).
Furthermore, as can be seen from the plaintiff, PORRAZZO's Amended Complaint's own Exhibit A, which consists of receipts from the defendant STOP & SHOP's store, the plaintiff bought and consumed mostly the defendant BUMBLE BEE's solid white tuna in a can product. With regard to this product, as is demonstrated by defendant's Exhibit B, page 2 entitled "Backgrounder for the 2004 FDA/EPA Consumer Advisory: What You Need to Know About Mercury in Fish and Shellfish", (the document of which the Defendants wish this Court to take judicial notice), albacore, or solid white tuna, has more mercury than canned light tuna. Given these facts, the plaintiff, PORRAZZO unknowingly, and without warning from the defendants, was at a greater risk of ingesting larger quantities of methylmercury.
The plaintiff also alleges that the dangers of mercury poisoning inherent in the consumption of the defendant BUMBLE BEE's tuna fish product, were not open and obvious and could not be ascertained or known to him, either by visual inspection or by the execution of preliminary testing. See Defendants' Exhibit A at paragraph 21.
II. THE FDA HAS NOT REGULATED EITHER THE RISK OF MERCURY IN TUNA OR THE PERMISSIBLE WARNINGS REGARDING THAT RISK
Through the Federal Food, Drug and Cosmetic Act, Congress granted to the Food and Drug Administration authority to regulate the field of food safety. 21 U.S.C. §371. Under this Act, the FDA has the authority to promulgate food definitions and standards of food quality, I.D. at §341, and to set tolerance levels for poisonous substances in food. I.D. at §346. Under the Act, the FDA is also delegated enforcement authority including the authority to take various steps to enforce the Acts ban on adulterated or misbranded food. I.D. at §331 to §336, §342 to §343. However, although, the FDA has issued "consumer advisories" regarding the risks posed by mercury in fish and established a guide line regarding mercury concentrations to guide it's enforcement decisions, with regard to mercury levels in tuna fish, the FDA has promulgated no regulation concerning the risk posed by mercury in tuna fish or warnings for that risk, and has adopted no rule precluding states from imposing a duty to warn, and has taken no action establishing mercury warnings as misbranding under Federal Law, or as contrary to Federal Law in any way.
ARGUMENT
POINT I: THE PLAINTIFF'S AMENDED COMPLAINT CLEARLY PASSES THE TWOMBLY/IOBAL STANDARD
In Bell Atlantic Corp. v. Twombly. 550 U.S.544,127 S.Ct. 1955 (2007), the Supreme Court disembraced that portion of the holding in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957) wherein Justice Black opined that: " a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief 355 U.S. at 45 -46., categorizing this statement as "a phrase best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." See, Twombly. supra, at 1969.
The Twomblv Court in its holding now requires that the factual allegations in plaintiffs' complaints be sufficiently specific to raise their right to relief " above the speculative level" See . Twomblv , supra at 1965, and just enough to "nudge their claims across the line from conceivable to plausible." See. Twombly, supra at 1974.
However, although the Twombly Court broke away from the above Conley statement, it repeatedly insisted that it did not "require heightened fact pleading specifics, but only enough facts to state a claim to relief that is plausible on its face." See, Twomblv supra at 1974.
Despite this departure from the Conley statement, the Twomblv Court made clear that it still adhered to the principle that the Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief in order to "give the defendant fair notice of what the..,claim is and the grounds upon which it rests," citing Conley v. Gibson. 355 U.S.41, 47, 78 S.Ct. 99 (1957). Moreover, the Court also adhered to the principle that "Rule 12(b)(6) does not countenance dismissals based upon a judge's disbelief of a complaint's factual allegations." Twombly at 1965 citing Neitzke v. Williams. 490 U.S. 319,109 S.Ct. 1827 (1989). According to the Twombly Court, a well pleaded complaint may proceed - even if it appears "that a recovery is very remote and unlikely." see, Twombly. supra at 1965, citing Scheuer v. Rhodes. 416 U.S. 232, 94 S.Ct. 1683 (1974); or even if it strikes a savvy Judge that actual proof of the complaint's facts is improbable and that a recovery is very remote and unlikely. See, Twombly. supra, at 1966.
After its Decision in Twombly, supra, the Supreme Court revisited the issue of sufficiency with regard to a plaintiff's complaint in the case of Ashcroft v. Iqbal. 129 S.Ct. 1937, wherein it held that:
_ The Twomblv decision applies to all cases, not just those sounding in antitrust; and
_ Under the Federal Rules of Civil Procedure 8(a)(2), a pleading must
contain a short plain statement of the claim showing that the pleader is entitled to relief; and
_ Although the Rule 8 pleadings standard does not require detailed factual allegations, it demands more than an unadorned, the - defendant -unlawfully - harmed - me - accusation; and
_ to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to "state a claim to relief that is plausible on its face. Citing Twomblv. 550 U.S. at 570, 127 S.Ct. 1955; and _ A claim has facial plausibility when the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Citing Twombly. 550 U.S. at 556, 127 S.Ct. 1955; and
_ The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully ibid; and
_ Determining whether a complaint states a plausible claim for relief will be a context-specific task that requires the review in Court to draw on its judicial experience and common sense.
In the case at bar, the plaintiff, in his Amended Complaint, has not merely "nudged his claims across the line from conceivable to plausible," but has alleged enough facts and provided enough documentary evidence to make his claims not only plausible, but probable, which the Supreme Court's Twombly/Iqbal standard does not require him to do.
The defendants, in their Memorandum of Law, allege that the plaintiff's Complaint is insufficient, as a matter of law, since:
"not once in the fifty-eight (58) paragraph Amended Complaint does plaintiff submit any basis for its claim that the tuna manufactured by Bumble Bee and distributed by Stop and Shop contained poisonous levels of methymercury." See Memorandum of Law at paragraph 1 at page 11; and
"It fails to provide any information showing the defendants' canned tuna, in fact, contained unsafe, dangerous and/or poisonous levels of mercury."
However, at this pleading stage, a plaintiff is not required to prove these facts prior to discovery. The Twombly/Iqbal standard only requires that the plaintiff submit enough factual allegations to make is complaint plausible. In this case, given the plaintiff's allegations contained in his Amended Complaint and the documentary evidence annexed to it which show that he consumed ten (10) six (6) ounce cans of solid white Bumble Bee tuna per week which he purchased from Stop & Shop, the plaintiff has more than plausibly demonstrated that his consumption of the defendants' product caused his mercury level to be more than twice that of normal while also causing him heart attack-like symptoms. The Amended Complaint's documentary evidence also shows that, once the plaintiff stopped eating the defendants' tuna product, his mercury level returned to normal, while his chest pains, dizziness and heart palpitations subsided.
As the Court can clearly see, by arming his Amended Complaint with circumstantial evidence, which remains unrefuted, the plaintiff has done more than the Twombly/Iqbal standard requires. It is hard to believe how the defendants can allege, given the plaintiff's documentary evidence annexed to his Amended Complaint, that the Amended Complaint "contains no basis for the plaintiff's conclusion that the defendants' tuna contains a high level of mercury or even any information about how he arrives at the conclusion that the mercury level in Bumble Bee tuna was, in fact, high." See defendants' Memorandum of Law at page 12, paragraph 2. It is important to reiterate, that the plaintiff's Amended Complaint, read together with its documentary evidence, contains enough factual allegations which make it not only plausible, but probable, that his elevated mercury level and resultant heart attack-like symptoms were caused by the defendants' product and that thus, he is entitled to relief.
POINT II: THE PLAINTIFF'S AMENDED COMPLAINT CLEARLY ALLEGES INJURIES PROXIMATELY CAUSED BY HIS CONSUMPTION OF CANNED TUNA
It is respectfully submitted that the Amended Complaint, when read in its entirety and specifically, at paragraphs 10, 23, 39, 44 and 49, along with its documentary evidence, clearly states that the plaintiff's heart attack-like symptoms, i.e., episodes of chest pains, heart palpitations, sweatiness, dizziness and lightheadedness, were all directly caused by the poisonously high level of mercury contained in the six (6) ounce cans of Bumble Bee tuna which he purchased from the defendant, STOP & SHOP. In fact, paragraphs 23, 39,44 and 49 plainly state that the plaintiff, LEE PORRAZZO, was "caused" or "rendered" to become physically sick and psychologically distraught. Indeed, the documentary evidence supplied by the plaintiff in his Amended Complaint gives the Court unequivocal notice that the plaintiff was poisoned by the defendants' product which contained mercury. Even the Twombly Court held that once a claim for relief has been stated, a plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint. See, Twombly, supra, at page 1969.
POINT III: SINCE THE PLAINTIFF'S AMENDED COMPLAINT ADEQUATELY DESCRIBES HIS PHYSICAL INJURIES CAUSED BY THE DEFENDANTS' PRODUCT, HIS CLAIMS FOR EMOTIONAL DISTRESS SHOULD STAND
Contrary to the defendants' allegation that the plaintiff has not "alleged the existence of any actual ill health effects caused by the consumption of tuna" (see defendants' Memorandum of Law at page 14, Point II, first paragraph), the plaintiff's Amended Complaint and the documentary evidence annexed thereto are more than amply supplied with the allegation that his consumption of the defendants' canned tuna fish with poisonously high levels of mercury caused him to experience "two to three times per week, episodes of chest pains, heart palpitations, sweatiness, dizziness, and lightheadedness, all of which gave the plaintiff the impression that he had a heart condition." See Defendants' Exhibit A, paragraph 5. The Amended Complaint goes on to explain that "due to the foregoing physical maladies, the plaintiff was psychologically distraught and worried, since none of the plaintiff's treating physicians and/or his heart specialist could diagnose what was causing the foregoing frightful episodes." See Defendants' Exhibit A at paragraph 6. In addition, after he was diagnosed with mercury poisoning, the plaintiff remains worried and distraught over what effects this neurotoxin has had on his physical well being. See Defendants' Exhibit A, paragraph 9.
Given the foregoing, the plaintiff's claims for emotional distress are valid and should be allowed to stand.
POINT IV: NO COUNT OF THE PLAINTIFF'S AMENDED COMPLAINT SHOULD BE DISMISSED, SINCE THE PLAINTIFF'S USE OF THE DEFENDANTS' PRODUCT WAS FORESEEABLE AND/OR, SINCE THERE WAS NO WARNING GIVEN BY THE DEFENDANTS AS TO THEIR PRODUCT'S MERCURY CONTENT AND/OR SINCE THERE IS NO EVIDENCE TO SUGGEST THAT CONSUMERS REASONABLY EXPECT CANNED TUNA TO CONTAIN MERCURY
Under New York Law, a products liability plaintiff may base a suit on one or more of four theories: negligence, breach of express warranty, breach of implied warranty or strict liability. See, Denny v. Ford Motor Co., 87 NY2d 248, 639 NYS2d 250 (1995); Heller v. U.S. Suzuki Motor Corp., 64 NY2d 407, 488 NYS2d 132 (1985); Voss v. Black & Decker Mfg., Co., 59 NY2d 102, 463 NYS2d 398 (1983).
The strict products liability doctrine, in turn, encompasses actions based on three categories of product defects; manufacturing flaws, design defects and inadequate warnings. See, Speller ex. rel Miller v. Sears. Roebuck & Co., 100 NY2d 38, 760 NYS2d 79 (2003).
The categories of strict liability grew out of judicial efforts to facilitate recovery for personal injuries caused by defective products. The early efforts relied on the notion of the seller's implied warranty that its products are fit for the purpose for which they sold. See Heller v. U.S. Suzuki Motor Corp., 64 NY2d 407, 488 NYS2d 132; Blessington v. McCrory Stores Corporation, 305 NY 140,111 NE2d 421. The use of this theory eliminates the need for injured plaintiffs to establish negligence. In the case of Codling v. Pagjia, 32 NY2d 330, 345 NYS2d 461 (1973), the New York Court of Appeals broke new ground by recognizing a strict liability cause of action in tort against the manufacturer of a defective product. See, also. Micallef v. Miehle Co., Division of Miehle-Goss Dexter. Inc., 39 NY2d 376, 384 NYS2d 115 (1976).
The earliest strict products liability cases involved manufacturing defects. However, this cause of action evolved to include claims based on inadequate warnings. See. Liriano v. Hobart Corp., 92 NY2d 232, 677 NYS2d 764 (1998); Rastelli v. Good Year Tire & Rubber Co., 79 NY2d 289, 582 NYS2d 373 (1992). Under the strict products theory of liability, a party injured as a result of a defective product may seek relief against the product manufacturer or others in the distribution chain, if the defect was a substantial factor in causing the injury. See, Speller ex. rel., supra. As the New York Court of Appeals stated in Victorson v. Bock Laundry Machine Co., 37 NY2d 395, 373 NYS2d 39 (1975), under the strict products theory, liability is in tort and is predicated largely on consideration of social policy.
Strict products liability claims based on inadequate warnings arise from the manufacturer's duty to warn against latent dangers (such as mercury in tuna fish) resulting from foreseeable uses of the product of which the manufacturer knew or should have known. See, Liriano v. Hobart Corp., 92 NY2d 232, 677 NYS2d 764 (1998); Rastelli v. Good Year Tire & Rubber Co., 79 NY2d 289, 582 NYS2d 373 (1992). The emphasis on duty and foreseeability in failure to warn cases suggests an analysis akin to traditional negligence principles. See. Enright v. Eli Lilly & Co., 77 NY2d 377, 568 NYS2d 550 (1991). Under New York Law, a design defect may be actionable if the product is not reasonably safe. See, Rose v. Brown & Williamson Tobacco Corp., 53 AD3d 80, 855 NYS2d 119 (ls1 Dept. 2008).
The tort remedy of strict liability permits an injured plaintiff to recover from remote parties in the distributive chain regardless of privity. See, Heller v. U.S. Suzuki Motor Corp., supra. The liability imposed in such cases, whether the purchaser, user or innocent bystander, is predicated upon social policy, not contract. See, Victorson v. Bock Laundry Machine. Co., supra.
A manufacturer who sells a defectively designed product is liable for injuries resulting from foreseeable misuses of the product, as well as from the product's intended use. Liriano v. Hobart Corp., 92 NY2d 232, 677 NYS2d 764 (1998); Lugu v. LJN Toys. Ltd., 75 NY2d 850, 552 NYS2d 914 (1990).
Misuse of a product which is so outrageous that there is no product defect, and, therefore, no liability at all, should not be confused with a use of the product which was not intended, but was reasonably foreseeable, see, Pfohl v. Amax. Inc., 222 AD2d 1068, 635 NYS2d 880 (4th Dept. 1995).
It should be noted that, although many New York product liability cases use the negligence concept of "foreseeability" in this context, the focus of analysis in a strict products case is whether the use to which the product was put by the consumer was abnormal, given the realities of actual use of the product by consumers generally. See, Robinson v. Reed-Prentice Division of Package Machinery Co., 49 NY2d, 426 NYS2d 717 (1980). The difference may be clarified by example: to use a chainsaw to floss one's teeth causing severe facial disfigurement is to use the chainsaw for an unintended purpose, relieving the manufacturer of liability. The manufacturer of a motor vehicle, however, has a duty to design a vehicle that will minimize the aggravation of injury in the event of a collision, because in actual use, collisions occur frequently enough to be within the expected use of such a vehicle.
In light of the foregoing facts and case law, the defendants in the case at bar cannot complain that the plaintiff PORRAZZO's approximate daily consumption of 8.57 ounces of Bumble Bee tuna fish was not reasonably foreseeable. Indeed, one can argue that the defendants, which are corporations in the business of making money, viewed the plaintiff as an ideal consumer, i.e., the type of customer they wanted to have - one that bought and ate their canned tuna fish product with a consistent regularity, increasing their profits.
Moreover, in the case at bar, the defendants cannot state that the plaintiff's use of their product was "abnormal" as a matter of law, since they should have foreseen that a consumer such as the plaintiff, PORRAZZO would consume between one (1) and two (2) 6 ounce cans of their product per day, given their cajoling advertisements that their product was low in fat, high in protein and thus, "heart healthy". Furthermore, the defendants merely state, but do not prove, that" a consumer would reasonably expect that canned tuna contains mercury" (see, Def. Memo of Law, page 17, point C). The defendants simply offer nothing to support their argument that consumers should reasonably expect the presence of substances that are undetectable in the food they eat -especially since the substance to which the defendants refer is a dangerous, odorless, tasteless neurotoxin, such as mercury.
The defendants attempt to analogize the plaintiff, PORRAZZO's consumption of their canned tuna to the plaintiff's consumption of fast foods in the case of Pelman v. McDonald's Corp., 237 F.Supp.2d 512 (S.D.N.Y. 2003), vacated on other grounds, 396 F.3d 508 (2nd Cir. 2005). However, their analogy is false.
In the Pelman case, the plaintiffs were guilty of eating fast foods that were commonly known to be high in saturated fats and carbohydrates, while in the case at bar, the plaintiff was attempting to eat the "heart healthy" food of canned tuna - one that was low in saturated fats and carbohydrates and high in protein. Moreover, the fact that beef naturally contains high levels of fat is not analogous to the fact that tuna fish contain mercury, since, if tuna were not exposed to mercury in the Earth's environment, the tuna would not "naturally" produce and thus, contain, mercury as cattle produce fat.
Obviously, from the plain statement of facts contained in the plaintiff, PORRAZZO's, Amended Complaint along with the documentary evidence annexed thereto, it is clear that the plaintiff, PORRAZZO, did not know or even have a remote notion, that he was in danger of having mercury accumulate in his body to the point of poisonous levels which caused him to become sick. In addition, even the plaintiff's doctors did not know, or even suspect, that the plaintiff was suffering from mercury poisoning until two years after the plaintiff's symptomatology began.
Under New York Law, the mere failure to warn a consumer about the dangers attendant upon the use of a product may make a product defective. See, Cover v. Cohen, 61 NY2d 261, 473 NYS2d 378 (1984); Torroerossa v. Towmotor Co., 44 NY2d 709, 405 NYS2d 448 (1978). Liability may be imposed upon the manufacturer based upon either the complete failure to warn of a particular hazard or the inclusion of warnings that are insufficient. See. German v. Morales. 24 AD3d 246, 806 NYS2d 493 (1st Dept. 2005).
In the case at bar, since the defendants admit that their product contained mercury when sold to the plaintiff and also admit that they could not "remove the naturally -occurring methylmercury from the canned tuna"(see, defendants Memorandum of Law, page 18 last paragraph) the defendants had a duty under New York law to warn the plaintiff of this latent danger, whether the mercury is "naturally occurring," or not. However, the defendants admit that there was no such warning.
However, under New York law, a manufacturer, such as these defendants have a duty to warn consumers of latent dangers resulting from the foreseeable use of their product of which they knew, or should have known, even if the particular use is an unintended one. See, Liriano v. Hobart Corp., 92 NY2d 232, 677 NYS2d; Rastelli v. Good Year Tire & Rubber Co., 79 NY2d 289, 582 NYS2d 373 (1992). Here, the plaintiff, PORRAZZO, contends, and the defendants do not refute, that mercury is an odorless, colorless, tasteless, poisonous heavy metal, which he could not have discovered by ordinary inspection. See Defendants' Exhibit A, the Amended Complaint at paragraphs 4, 21 and 37.
In the case at bar, the defendants argue that they should not be liable to the plaintiff for the presence of mercury in their product, since mercury naturally exists within it and they cannot take it out. See defendants' Memorandum of Law, pages 16 through 19.
However, under New York law, the defendants' duty to warn of dangers in the use of their product exists, even though the product is perfectly designed and made, see. Genessee County Patrons Fire Relief Ass'n. v. L. Sonneborn Sons. 263 NY 483, 189 NE 551, since the manufacturer and/or retail seller are under a duty to ascertain the nature of their product and are presumed to have superior knowledge of it. See, Noone v. Fred Perlberg, Inc., 268 AD 149, 49 NYS2d 460, aff'd., 294 NY 680, 60 NE2d 839. Moreover, a manufacturer is required to keep abreast of developments in the state of the art, through research, accident or other reports, scientific literature, and other available methods and may be held liable for failure to warn of dangers and risks which come to its attention following user operation of the product. See, Cover v. Cohen. 61 NY2d 261, 473 NYS2d 378 (1984). A warning must be commensurate with the risk involved in the ordinary use of the product. See, Martin v. Hacker. 83 NY2d 1, 607 NYS2d 598 (1993). Analysis of the adequacy of a warning starts with the ascertainment of the seriousness of the risk, i.e., the side effects of the product. See, Martin v. Hacker, supra. Accordingly, the adequacy of warnings must be evaluated in light of the most serious potential consequence. See, Martin v.Hacker. The nature of the warning and the persons to whom it should be given depends upon a variety of factors, including the harm that may result absent a warning, the reliability and adverse interest of the person to be warned, the kind of product involved and the burden in disseminating the warning. See, Cover v. Cohen. For a warning to be accurate it must be correct, fully descriptive and complete and it must convey updated information as to all of the product's dangers. See, Martin v. Hacker. In all but the most unusual of circumstances, the adequacy of a warning is a question of fact. Montufar v. Shiva Automation Service, 256 A.D.2d 607, 683 NYS2d 125 (2d Dept. 1998).
However, in the case at bar, despite the defendants' superior knowledge of their product imputed to them by New York case law, see, No one, supra, they completely failed to give any warning to the general public, or to the plaintiff, PORJIAZZO, of the potential hazard of mercury poisoning which accompanies eating their product with consistency.
Another potential source of recovery for injuries caused by defective products is implied warranty, which is based on the law of contracts and relevant provisions of the New York Uniform Commercial Code, see, Denny v. Ford Motor Co., supra. A cause of action for breach of implied warranty of merchantability requires that a jury find that the product was not "fit for the ordinary purposes for which such goods are used." See, New York Uniform Commercial Code Section 2-314(2)(c). It is not necessary for a plaintiff in such cases to establish that the conduct of the defendant was negligent or that the product was not reasonably safe, but rather that the product was, in fact, not "fit for the ordinary purposes for which such goods are used." See, Denny v. Ford Motor Co., supra. See, also. Mendel v. Pittsburgh Plate Glass Co., 25 NY2d 340, 305 NYS2d 490 (1969).
As to breach of warranty actions, the New York Uniform Commercial Code Section 2-318 provides that warranties run to "any natural person if it is reasonable to expect that such person may use, consume or be effected by the goods and who is injured in person by breach of the warranty."
Thus, an injured person may maintain causes of action in New York to recover against both immediate and remote parties based on express or implied warranty, negligence, or strict products liability. See, Heller v. U.S. Suzuki Motor Corp., supra. (Strict products liability); MacPherson v. Buick Motor Co., 217 NY 382,111 NE 10050 (negligence); Denny v. Ford Motor Co., supra (breach of warranty). And, in the case at bar, the plaintiff, PORRAZZO, has done just that, since the plaintiff's first and second causes of action in his Amended Complaint, against the defendant BUMBLE BEE and defendant STOP & SHOP, respectively, are for breach of warranty; his third cause of action against both defendants is based upon the defendants' negligence and recklessness; and his fourth cause of action sounds in strict liability.
POINT V: THE PLAINTIFF'S AVERAGE CONSUMPTION OF LESS THAN TWO (2) CANS OF TUNA PER DAY WAS REASONABLE
It is respectfully submitted that the defendants contention that the plaintiff "abnormally consumed over 500 pounds of canned tuna" (see defendants' Memorandum of Law, page 19) presumes what the defendants must prove at trial before a jury.
Even so, whether a particular way of misusing a product is reasonably foreseeable, and whether the warnings which accompany a product are adequate to deter such potential misuse, are ordinarily questions for the jury. See, Helier v. Encore of Hicksville. Inc., 53 NY2d 716 , 439 NYS2d 332, (1981); Johnson v. Johnson Chemical Co., Inc., 183 Ad. 2d 64, 588, NYS2d 607 (2nd Dept., 1992).
POINT VI: THE PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES IS NOT INDEPENDENT, BUT INTRICATELY TIED TO HIS CLAIM OF DAMAGES DUE TO THE DEFENDANTS' RECKLESSNESS
The defendants' contention that the plaintiff's claim for punitive damages is "independent" from his claim that, since the defendants were recklessly motivated by profit, he is entitled to compensatory damages, is simply wrong. A clear reading of the Third and Fourth Causes of Action of the plaintiff PORRAZZO's Amended Complaint clearly shows that he asks for both compensatory and punitive damages.
The New York State Court of Appeals has held that punitive damages may be recoverable in a strict products liability action where the theory of liability is based upon the failure to warn and there is evidence that the failure was wanton or in conscious disregard of the rights of others. See, Home Ins. Co. v. American Home Products Corp., 75 NY2d 196, 551 NYS2d 481 (1990); Wittman v. Gilson, 70NY2d 970, 525 NYS2d 795 (1988). See, also, Racich v. Celotex Corp. 887 F.2d 393 (2nd Cir. 1989) wherein the Court sustained an award of punitive damages in a products liability case based on failure to warn of the dangers of asbestos and expressly rejecting the argument that under New York law the recovery of punitive damages would be in appropriate.
Thus, the plaintiff, PORRAZZO's claims for punitive damages are valid, intricately tied to the his claims for compensatory damages for his physical and psychological maladies and thus, are valid and should not be dismissed.
POINT VII: THE PLAINTIFF'S SECOND CAUSE OF ACTION AGAINST THE DEFENDANT STOP & SHOP FOR BREACH OF EXPRESS AND/OR IMPLIED WARRANTY AND/OR FOR NEGLIGENCE AND THE FAILURE TO WARN SHOULD STAND
The New York Court of Appeals has made clear that a determination of negligence or breach of duty must begin with consideration of the duty owed, which is matter of policy, rather than with the issue of foreseeability. See. DeAngelis v. Lutheran Med. Center 58 NY2d 1053, 462 NYS 2d 626 (1983) ;Pulkay. Edelman. 40 NY2d 781, 390 NYS2d393 (1976).
Where products are sold in the normal course of business, sellers (such as the defendant STOP & SHOP) by reason of their continuing relationships with manufactures (such as the defendant BUMBLE BEE), are most often in a position to exert pressure for the improved safety of products and can recover increased costs within their commercial dealings, or through contribution or indemnification in litigation. Additionally, by marketing the products as a regular part of their business such sellers may be said to have assumed a special responsibility to the public, which has come to expect them to stand behind their goods, in this case 6 ounce cans of Bumble Bee tuna fish. See. Sukljian v. Charles Ross & Son Co., Inc., 69 NY2d 89, 511 NYS2d 821 (1986); Mead v. Warner Pruyn Div., 57 AD2d 340, 394 NYS2d 483 (3rd Dept. 1977).
In light of the foregoing policy analysis, under New York Law, the failure to provide warnings gives rise to liability in negligence, not only against the manufacturer, but also against the distributor and retail seller as well. See, Johnson v. Johnson Chemical Co., Inc., 183 A.D.2d 64, 588 NYS2d 607 (2d Dept. 1992); Buley v. Rexnor Process Machinery Div., 105 A.D.2d 965, 482 NYS2d 104 (3d Dept. 1984).
Furthermore, a retail seller which, by advertising or labeling its product, represents the quality to the public in such a way as to induce its purchase or use, thereby makes an express warranty that the product will conform to the representation. If the product does not conform to the representation, the express warranty is breached. See. Codling v. Paglia 32 NY2d 330, 345 NYS2d 461 (1973); Randy Knitwear. Inc. v. American Cyanamid Co., 11 NY2d 5 226 NYS2d 363 (1962).
In addition to an express warranty, New York Law implies a warranty by a retail seller, such as the defendant STOP & SHOP, that places a product on the market that it is reasonably fit for the ordinary purposes for which such product is used. If the product is not reasonably fit to be used for its ordinary purposes, the implied warranty is breached. See. Denny v. Ford Motor Co., 87 NY2d 248, 639 NYS2d 250 (1995); Victorson v. Bock Laundry Machine Co., 37 NY2d 395, 373 NYS2d 39 (1975). Under this theory of liability, a plaintiff need only establish that the product was not reasonably fit for the purposes for which it was intended and that the product was the proximate cause of plaintiff's injury. This type of warranty claim focuses on the disappointed expectations of the purchaser or user of the product, while a cause of action based on strict products liability or negligence are concerned with social policy and risk allocation. See, Denny v. Ford Motor Co., supra.
In the case at bar, the plaintiff's Amended Complaint plainly states that the defendant STOP & SHOP sold and distributed the defendant BUMBLE BEE's canned tuna fish which was inherently dangerous in that it had a poisonously high level of mercury contained within it. See Defendants' Exhibit "A", paragraph 37.
In addition, the plaintiff claims in the Second Cause of Action that the defendant STOP & SHOP carelessly, recklessly and negligently failed to warn the plaintiff of this product's latent danger. See Defendants' Exhibit A, paragraph 37.
After making these allegations, the plaintiff then goes on to plainly state that the express and/or implied warranties by the defendant STOP & SHOP that the Bumble Bee tuna fish that it sold was fit for human consumption, heart healthy and non-poisonous were untrue. See Defendants' Exhibit A, paragraph 38.
In light of the foregoing facts and case law, the plaintiffs Second Cause of Action against the defendant STOP & SHOP should stand.
POINT VIII: THE PLAINTIFF'S CLAIMS MADE UNDER NEW YORK STATE AGRICULTURE AND MARKETS LAW, SECTIONS 199-a(l), 200 AND 201 SHOULD BE ALLOWED TO STAND
In his Fifth Cause of Action, the plaintiff, LEE PORRAZZO, clearly and plainly states that the defendants, by manufacturing, selling, processing, marketing and packaging canned tuna fish, which was adulterated with poisonously high levels of mercury violated NYS Agriculture and Markets Law Sections 199-a(l), 200(1), 200(2), 200(3), 200(5), 200(9) and 200(11).
Under 199-a(l):
No person or persons, firm, association or corporation shall within this state manufacture, compound, brew, distill, produce, process, pack, transport, possess, sell, offer or expose for sale, or serve in any hotel, restaurant, eating house or other place of public entertainment any article of food which is adulterated or misbranded within the meaning of this article.
Section 199-a(l) must also be read in conjunction with Agriculture and Markets Law Section 200, which defines the adulteration of food. The plaintiff accepts and adopts the recitation of Section 200 made by the defendants in their Memorandum of Law at page 24, footnote 4.
Under Section 200(1), the plaintiff's claim is that the defendants' canned tuna product is adulterated, since it contains a poisonous substance (mercury) which rendered the tuna injurious to the plaintiff's health, and the quantity of the mercury in the canned tuna does ordinarily (given the plaintiff's consumption) render the product injurious to health.
Under Section 200(2), the plaintiff claims that the defendants' canned tuna contains an added poisonous/deleterious substance (mercury) which is "added" to the tuna fish from the earth's environment; tuna fish do not naturally generate mercury in and of themselves.
Under Section 200(3), the plaintiff claims that the defendants' canned tuna consists in whole or in part of a contaminated (with mercury) substance.
Under Section 200(5), the plaintiff claims that the defendants' canned tuna is a product of a diseased animal, i.e., an animal diseased by mercury.
Under Section 200(9), the plaintiff claims that the defendants concealed the damage and/or inferiority of the fact that their canned tuna had mercury and was not as "heart healthy" as they held their product out to be.
Similarly, under Section 200(11), the plaintiff claims that the defendants' canned tuna which he consumed "fell below the standard of purity, quality or strength which it purported or represented to possess," i.e., that it was not as "heart healthy" as the defendants claimed.
In his Sixth Cause of Action, the plaintiff claims that the defendants violated NYS Agriculture and Markets Law Sections 199-a(l), 201(1) and 201(8)(b).
Section 201(1) reads as follows:
"Misbranding of food. Food shall be deemed to be misbranded: 1. If its labeling if false or misleading in any particular."
Given this definition, the plaintiff's Amended Complaint alleges that the defendants labeling of their canned tuna as being "heart healthy" and safe for human consumption was false and misleading, since it did not apprise him in any way of the poisonous mercury contained within it.
Under 20 l(8)(b):
"Food shall be deemed to be misbranded if it purports to be or is represented as a food for which no definition and standard of identity and/or standard of quality have been prescribed and it falls below the standard of purity, quality or strength which it purports or is represented to possess."
Again, under this definition, the plaintiff claims in his Sixth Cause of Action that the defendants' canned tuna fell below the standard of purity and quality which the defendants represented it to possess, namely, that it was "heart healthy" and not deleterious to his health in any way.
The defendants, in their Memorandum of Law at page 24, point VIII, argue that mercury is analogous to a tuna bone being in a can of tuna, since like a tuna bone the defendants did not put mercury into their tuna. However, as previously discussed, this analogy is incorrect. Bones are essential to the being of tuna fish - mercury, is not. If mercury were not added to tuna fish from the earth's environment, tuna fish would not naturally produce mercury in their content.
In light of the foregoing facts, the plaintiff's Fifth and Sixth Causes of Action should be allowed to stand. POINT IX: SINCE THE FELLNER COURT COMPLETELY ADDRESSES AND DISMANTLES ALL OF THE ARGUMENTS EXACTLY MADE BY THE DEFENDANTS HEREIN, THE PLAINTIFF'S CLAIMS ARE NOT PREEMPTED BY FEDERAL LAW
The case at bar and the case of Fellner v. Tri-Union Seafoods. L.L.C., 539 F.3d 237 (3d. Cir. NJ 2008), cert, denied by Tri-Union Seafoods v. Fellner. 2009 U.S. LEXIS 3099 (U.S. Apr. 2009) are extremely similar, so much so that it is unfathomable how the defendants in this case can hope to assuage this Court to preempt PORRAZZO's state law claims.
In Fellner, as in this case, the plaintiff sought damages in a State Court (Superior Court of New Jersey) for contracting severe mercury poisoning she sustained as a result of consuming, almost exclusively from 1999 to 2004, the defendant Tri-Union's Chicken of the Sea tuna fish products. The case was removed to the United States District Court for the District of New Jersey by Tri-Union's attorneys, Bonner, Kiernan, Trebach & Crociata, LLP, (the same attorneys for the defendants in this case), who then filed a motion to dismiss for failure to state a claim asserting that Fellner's suit was preempted by regulatory actions of the FDA, while also making a motion requesting that the Court take judicial notice of four documents: 1) a consumer advisory published by the FDA in 2004 regarding the risks of mercury in fish (the same "Advisory" annexed as Exhibit A to the defendants BUMBLE BEE and STOP & SHOP'S motion for judicial notice herein); 2) a "backgrounder" for the FDA's 2004 Advisory (the same "Backgrounder" annexed as Exhibit B to the defendants BUMBLE BEE and STOP & SHOP'S motion for judicial notice herein); 3) Section 540.0600 of the FDA's compliance policy guide recommending that the FDA initiate enforcement action if the concentration of mercury in fish exceeds "lppm" (the same Section annexed as Exhibit D to the defendants BUMBLE BEE and STOP & SHOP's motion for judicial notice herein); and 4) the Commissioner of the FDA's letter to the Attorney General of the State of California regarding the lawsuit by the People which was later decided and titled as People ex rel. Brown v. Tri-Union Seafoods, LLC, supra.(the same Letter annexed as Exhibit C to the defendants BUMBLE BEE and STOP & SHOP's motion for judicial notice herein).
As can be seen, the only difference between the Fellner case's judicial notice requests and the requests in the case at bar is the September 8, 2004 letter from William K. Hubbard, the Associate Commissioner for Policy and Planning of the Office of Nutritional Products, Labeling and Dietary Supplements, responding to the Martek Petition (annexed as Exhibit E to the defendants BUMBLE BEE and STOP & SHOP's motion for judicial notice herein) which "Hubbard Letter", in the context of the reasoning behind the 3rd Circuit Court's conclusion that Fellner's state law claims were not preempted, is irrelevant. Also, despite the fact that the Tri-Union defendants did not ask the Fellner Court to take judicial notice of this Hubbard Letter, the Fellner Court did analyze and discuss the inefficacy and irrelevance of this letter by stating that this citizen's petition concerned not the risks of mercury in fish specifically, but rather the impact of dietary supplements of "omega-3 fatty acids" on heart disease. Id.at 253, n.10.
Also, exactly similar to the Defendants BUMBLE BEE and STOP & SHOP's preemption arguments in the case at bar were the arguments for preemption that the defendant, Tri-Union, in the Fellner case made, namely, that:
1) the FDA has adopted a "pervasive regulatory approach"- embodied in the FDA's Advisory, Backgrounder and internal enforcement guideline - with which Fellner's state lawsuit actually conflicted; (in the case at bar, see Defendants Memo of Law, pages 29 to 32)
2) the FDA has "rejected the use of warning labels" in favor of a more "nuanced" approach - that is, that the FDA has reached a decision that warnings should not be regulated, a decision which preempted the state from entertaining a claim based on a duty to warn theory; (in the case at bar, see Defendants Memo of Law, page 32, Point C); and
3) the FDA would have rejected any warning as "misbranding", a determination which preempted Fellner's failure-to-warn claim, (in the case at bar, see Defendants Memo of Law, page 33, Point D)
With regard to the defendant Tri-Union's claims for federal preemption in general, the Fellner Court held that the Supreme Court historically has applied a presumption against the preemption of state laws, reasoning that because the States are independent sovereigns in our federal system, it has long presumed that Congress does not cavalierly preempt state law causes of action. See, Fellner. supra at 248, citing, Medtronic v. Lohr. 518 U.S. 470, 116 S.Ct. 2240. Moreover, the Fellner Court opined that "it is hard to imagine a field more squarely within the realm of traditional state regulation than a state-tort like action seeking damages for an alleged failure to warn consumers of dangers arising from the use of a product." Ibid.
With regard to the first "pervasive regulatory" argument, the Fellner Court rejected Tri-Union's contention (as this Honorable Court should do here) that the Commissioner's Letter (Def. Exhibit C, herein) both established federal law capable of preemption and evidenced the FDA's interpretation of previously established law, which interpretation the Courts should defer.
The reason for the Fellner Court's rejection of this proposition was that it "found no case in which a letter, that was not the product of some form of agency proceeding and did not purport to impose legal obligations on anyone, was held to create federal law capable of preemption." See, Fellner, supra, at 245, citing, Wabash Valley Power Ass'n v. Rural Elec. Admin., 903 F.2d 445, at 453-54. The Fellner Court went on to explain that the Commissioner's Letter merits a low level of deference, since the views the FDA there offered and the significance it there attributed to prior administrative actions, were not shown to be the product of any agency proceeding. Id. at 250.
In addition, with regard to Tri-Union's argument that the FDA's findings and opinion set forth in the FDA Preemption Letter, as well as its regulatory approach (the FDA Advisory and Backgrounder) should be afforded a high level of deference and/or persuasion, the Fellner Court found that the Advisory and Backgrounder were not agency interpretations of regulations claimed to preempt state law, but rather were the very agency actions which were claimed to preempt state law. Ultimately, the Fellner Court (as this Honorable Court should do here) failed to understand how a court could defer to those documents, since they offered no interpretation to which it could defer (see, Fellner, supra, at 250) and, since these documents did not specifically regulate anything - they simply gave non-binding advice to a class of consumers and did not promulgate a federal legal standard with which Fellner's (and in this case, PORRAZZO's) state law claims could potentially conflict. Id. at 252. Moreover, despite the fact that the Advisory recommends continued fish consumption within certain parameters, the Fellner Court held that this "recommendation" was clearly not inconsistent with a warning against excess consumption. Ibid.
As to the defendant Tri-Unions contention (as do the defendants exactly contend in this case, see Def. Memo page 35, Point E) that the FDA determined that there is no hazard associated with methylmercury concentrations of less than lppm, the Fellner Court found no such determination, stating that, although the FDA has authority to promulgate standards for food quality and tolerance levels for poisonous foods, it had not done so. Ibid.
The Fellner Court went on to further explain that, since the guideline does not state that tuna with mercury levels below lppm pose no risk, nor that the manufacturer has met any particular standard of care if its tuna does not exceed lppm, even if Fellner (and in this case PORRAZZO) had claimed a specific concentration lower than the FDA guideline, such a claim would not be in conflict with this federal "standard". Ibid.
With regard to the second "nuanced approach" argument, the Fellner Court rejected Tri-Union's contention (as this Honorable Court should reject the defendants' exact contention in this case, see Def. Memo, page 32, Point C) that the FDA's determination to forego regulation amounted to a decision which preempted any state standard or duty to require such warnings, reasoning that a mere decision not to adopt a federal warnings requirement certainly did not alone preclude states from imposing a duty to warn. Id.at 253, 254. The Fellner Court went on to explain that State law is not preempted whenever an agency has merely "studied" or "considered" an issue; state law is preempted when federal law conflicts with state law . Id. at 254.
With regard to the third "misbranding" argument, the Fellner Court rejected Tri-Union's contention (as this Honorable Court should reject the defendants' exact contention in this case, see Def. Memo, page 33, Point D, to page 34) that the FDA would deem any warning by Fellner concerning mercury in fish to be "misbranding", because any such warning would not: 1) specify the scientific basis as to the cause of the harm warned of, and/or the amounts of such food that were required to cause this harm; and 2) balance out the negative methyhnercury information with positive information about the numerous healthy attributes of canned tuna. Id. at 254.
The Fellner Court opined that this misbranding theory suffered from the same shortcomings of Tri-Union's prior theories: it identified no regulatory action establishing mercury warnings as misbranding under federal law, and it failed to explain how the regulatory concerns it did identify actually conflicted with Fellner's lawsuit. The Fellner Court explained its holding by example when it stated that a warning on Tri-Union's tuna products certainly could have specified that the risks of mercury poisoning become material only with frequent tuna consumption, and that moderate fish consumption offers positive health benefits. Id at 255, 256. Analogously, the defendants BUMBLE BEE and STOP & SHOP's canned tuna product consumed by the plaintiff in the case at bar could also have contained such a warning.
CONCLUSION
As this Court can clearly see, the defendants' Motion to Dismiss the plaintiff's Amended Complaint for the failure to state a claim should be dismissed in its entirety. Especially since, if a party, (as the defendants in this case), moves for dismissal for failure to state a claim under F.R.C.P. 12(b)(6) and also offers material outside the pleadings in support of the motion, and the Court does not exclude consideration of the additional material, the court must convert the rule 12(b)(6) motion into one for summary judgment. See, Causey v. Sewell Cadillac-Chevrolet. Inc., 394 F.3d 285 (5* Cir. 2004); Farley v. Henderson. 883 F.2d 709 (9th Cir. 1989).
When this occurs, the summary judgment movant must illustrate both a lack of factual support for the non-movant's claim in the record, as well as entitlement to legal relief. See, Celotex v. Catrett. 477 U.S. 317,106 S.Ct. 2548.
In the case at bar, given the holding and the reasoning of the Fellner case, supra, and the plaintiff's legal and factual claims made with regard to his New York State claims, the defendants have failed to meet this Celotex standard.
Moreover, given the public policy considerations inherent in New York's product liability case law, the defendants herein would not have run afoul of them, if they had warned the plaintiff, PORRAZZO, of mercury in their canned tuna (as the Fellner Court suggested by example), so that he would have been able to make an informed decision as to his eating habits, i.e., he could have weighed the benefits of eating the defendants' low fat, low carb tuna fish product which is high in Omega 3 fatty acids against the potential risk of ingesting too much mercury.
In light of the foregoing facts, case law and legal arguments, the defendants, BUMBLE BEE and STOP & SHOP's Motion to Dismiss the plaintiff, LEE PORRAZZO's Amended Complaint should be denied in its entirety.
Dated: White Plains, New York
December 15, 2010
Respectfully submitted,
KILLERLANE LAW OFFICES
By: Christina M. Killerlane (KS-7180)
Thomas Iannuccilli, on the Brief
Attorneys for Plaintiff
LEE PORRAZZO
TO: BONNER, KIERNAN, TRBACH
& CROCIATA, LLP
Kenneth A. Schoen, Esq.
Attorneys for Defendants
BUMBLE BEE FOODS, LLC
& STOP & SHOP SUPERMARKET CO., LLC
Empire State Building, 59th Floor
New York, New York 10118
(212) 268-7535