ATRA Releases "Judicial Hellholes" Report

The American Tort Reform Association has released its latest edition of the Judicial Hellholes report.  Of particular interest, ATRA ultimately chose to move formerly #1-ranked Philadelphia (home base of your humble blogger) off the list of Judicial Hellholes and into the top slot on the marginally less critical "Watch List."   ATRA wanted to acknowledge various efforts taken by the local court recently to step back from prior administrative steps that seemed designed to attract out of state mass tort plaintiffs.

ATRA now ranks California -- the entire state – as the new #1 Judicial Hellhole (it was #2 last year).  "Lingering troubles with an unbalanced playing field" earn West Virginia the second-place ranking; Madison County, Illinois earned the #3 ranking with filings of new asbestos lawsuits in the small, rural jurisdiction poised to set another record. And New York City’s mounting tort liability, and Baltimore because of its asbestos litigation, led to fourth- and fifth-place rankings for those jurisdictions.


This latest report also debuts a new feature scrutinizing some of the worst (and best) federal appellate decisions of the year, and they also added a special focus on the explosion of consumer protection litigation, particularly that which targets “Big Food.”

 

 

Cancer Study of 9/11 Responders

Your humble blogger was quoted in a recent article in a Product Liability Law 360 story on the recent JAMA stud, which found no significant increase in most cancers among first responders and others exposed to dust and debris from the 9/11 terrorist attacks.  The study included more than 55,000 people enrolled in a 9/11-related health registry and examined data from 2003 to 2008.

 

Foreign Manufacturer Liability Act Unlikely to Pass Soon

We have posted before about efforts to pass legislation that would impact the ability of U.S. consumers to sue foreign manufacturers.

As the end of the year approaches, it appears that the latest version, the Foreign Manufacturers Legal Accountability Act (FMLAA) of 2011, will not be approved. Senate Bill 1946 and House of Representatives Bill 3646 are among the latest attempts to impact suits against foreign product makers.  Both would require foreign manufacturers importing products into the U.S. to establish a registered agent to accept service of process. And the registration of the agent would constitute consent to the personal jurisdiction in the U.S.  

Earlier versions of the legislation gained support in the wake of issues relating to products from China and, especially, the Chinese drywall litigation. Supporters of the legislation included some domestic industries, such as textiles. They also garnered opposition from foreign governments, some U.S. manufacturer groups, and non-U.S. manufacturers in the European Union and the Confederation of Indian Industry, and others. Even supporters noted that the bills did not directly address another related issue, the enforcement of U.S. judgments overseas. 

 

Toy Class Rejected on Commonality Grounds

Christmas ought to be the toy season, after all Suzy wants a dolly and Johnny wants a truck. But the plaintiff bar wants it to be season of toy litigation.  Fortunately, a California court recently refused to certify a proposed class of consumers who sued alleging that venerable Tinkertoys were falsely advertised.  See O'Brien v. Hasbro Inc., No. BC438958 (Superior Court, County of Los Angeles, CA).

Plaintiffs' claim was that the packaging implied that the items pictured could be built with the parts contained in the package.  The court's reasoning in rejecting the the claim under California's Unfair Competition Law was interesting.  The court focused on the commonality issue, and whether the  plaintiffs could show through common proof that the entire class had been confused by the "Classic Tinkertoy Construction Set" packaging.

The evidence was that less than 100 consumers had ever complained to Hasbro about the issue. The court noted recent appellate decisions in which classes had been decertified when only a tiny percentage of the class actually had reported the alleged problem.

Even if traditional reliance is not an element of a claim, there is still going to be a requirement of injury.  If a class member is not deceived, then he or she has been injured.  And the fact that a tiny percentage of consumers claim to have been confused does not mean that plaintiffs can show on a common basis that all class members were deceived.

An interesting one to watch if it goes on appeal.

Primary Jurisdiction Doctrine Leads to Dismissal of Food Claim

As our loyal readers know, the plaintiffs bar is poised to bring proposed class action litigation against food and beverage sellers over virtually any ingredient, marketing, label, or advertising it can shoehorn into an alleged unlawful trade practice.  It is gratifying when a court recognizes that proper forum for many such complaints is the Food and Drug Administration, not in court.  A recent example arises from the proposed class action over an ingredient in yogurt.  See Taradejna v. General Mills Inc., No. 12-993 (D. Minn.,12/10/12).

Plaintiff Martin Taradejna brought this putative class action alleging violations under the Minnesota Prevention of Consumer Fraud Act, the Minnesota Unlawful Trade Practices Act, and the Minnesota Uniform Deceptive Trade Practices Act, related to the alleged mislabeling of Greek yogurt. Plaintiff alleged that Greek yogurt is typically strained to remove the whey, resulting in a creamier product, richer in protein and lower in lactose.  Taradejna alleged that rather than straining, Defendants chose to use Milk Protein Concentrate (“MPC”) when they entered the Greek yogurt market in 2010. A blend of dry dairy products, MPC is sold in a powdered form that typically retains all protein components of milk.  Defendants’ use of MPC in the manufacture of its Greek yogurt results in a product with the thickness and protein content typical of Greek yogurt.  And the labeling of Defendant’s Greek yogurt discloses MPC as an ingredient. Taradejna contended, however, that this Greek yogurt failed to comply with legal and regulatory rules governing the labeling of food because it contained significant amounts of  MPC, and thus was not true Greek   yogurt.  Consequently, Taradejna alleged that Defendants’ actions in marketing this product violated the various Minnesota consumer protection statutes.

The FDA regulates food product ingredients and labeling and creates definitions and “standards of identity” for certain foods. Standards of identity define the particular food, and describe its ingredients, and approved processes of manufacture; as far back as 1981, the FDA promulgated such standards of identity for yogurt, 21 C.F.R. § 131.200, low-fat yogurt, 21 C.F.R. § 131.203, and nonfat yogurt, 21 C.F.R. § 131.206.  Plaintiff alleged use of MPC as an ingredient is not permitted in yogurt. Defendants pointed to a publicly available response to questions raised with the FDA at a 2004 milk seminar, stating that milk protein concentrate can be used as an ingredient in yogurt to increase the nonfat solids content.  And in 2009, the FDA proposed additional regulations to permit the optional use of any safe and suitable milk-derived ingredient as an optional dairy ingredient in the manufacture of yogurt to increase the nonfat solids content of the food above the minimum required 8.25 percent.

Plaintiff sought to represent a national class that had allegedly paid too much for this Greek yogurt made another way.  Defendant moved to dismiss on several grounds, but the district court focused on primary jurisdiction, a common-law doctrine that is utilized to coordinate judicial and administrative decision making. See Access Telecomms. v. Southwestern Bell Tel. Co., 137 F.3d 605, 608 (8th Cir. 1998). The doctrine applies where a claim may be cognizable in the courts, but where enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. See Alpharma, Inc. v. Pennfield Oil Co., 411 F.3d 934, 938 (8th Cir. 2005).  Agency expertise is the most common reason that courts apply the doctrine of primary jurisdiction. In addition, courts apply the doctrine to promote uniformity and consistency within the particular field of regulation.

The underlying issue here was whether MPC is a proper or permitted ingredient in the yogurt. The court concluded that resolution of this question falls squarely within the competence and expertise of the FDA, pursuant to the authority granted to the Agency by Congress. Issues of food labeling are sufficiently complex that they are best left to FDA for consideration prior to judicial review.  See Lever Bros. Co. v. Mauer, 712 F. Supp. 645, 651 (S.D. Ohio 1989); Heller v. Coca-Cola Co., 230 A.D.2d 768, 769-70 (N.Y. App. Div. 1996).)  The current standard of identity for yogurt, the  Agency’s public statements about the standard, and the 2009 Proposed Rule all may impact the question, and the FDA is in the best position to resolve any ambiguity about the standard of identity for yogurt – a matter requiring scientific and nutritional expertise.

Moreover, said the court, given that the FDA has issued its 2009 Proposed Rule on the standard of identity for yogurt, it would be imprudent for a court, at this juncture, to substitute its judgment for that of the Agency’s while revision of the standard is pending. Moreover, the FDA’s ultimate decision on the permitted ingredients in yogurt would ensure national uniformity in labeling, utilizing the Agency’s special expertise in this regard.

So, bottom line, the court used primary jurisdiction to put these issues where they belong—with the FDA.