S.F. v Archer Daniels Midland Co (2014) H&FLR 2015-19

S.F. v Archer Daniels Midland Co, Cargill Inc, Ingredion Inc, Tate & Lyle Ingredients Americas LLC and Roquette America Inc (2014) H&FLR 2015-19

United States Court of Appeals (Second Circuit)

11 December 2014

Coram: Chin and Carney JJ, Sweet DJ

Appearing for the Plaintiff: John Michael Hayes (of Law Office of J. Michael Hayes)
Appearing for the First, Second, Third and Fourth Defendants (Archer, Cargill, Ingredion, and Tate): Stephen Victor D’Amore, Dan K. Webb, Scott P. Glauberman, Cornelius M. Murphy and William P. Ferranti (all of Winston & Strawn LLP) and Kevin M. Hogan (of Phillips Lytle LLP)
Appearing for the Fifth Defendant (Roquette): David Ray Adams (of Hurwitz & Fine PC) and Peter N Wang (of Foley & Lardner LLP)

Catchwords: New York – High Fructose Corn Syrup – diabetes – negligence – products liability – defective design – market share liability

Facts: The plaintiff was the father of SEF, an infant who had consumed high fructose corn syrup, of which the defendants were (and are) major manufacturers.  It was alleged that this product was a substanial factor in SEF’s development of Type 2 diabetes.  SF brought proceedings against the defendants based on negligence, gross negligence, strict products liability (in relation to defective design), and failure to warn.  The defendants sought and were granted summary dismissal of the claim: S.E.F. v Archer Daniels Midland Co (2014) H&FLR 2014-8.  The plaintiff appealed.

Held: Per curiam, dismissing the appeal, that –

1. In general, New York law views claims based on strict products liability and negligence to be functionally synonymous.  To state a claim for defective design in relation to a products liability (or, by extension, negligence) claim, the plaintiff must allege that the the product as designed posed a substantial risk of harm, that it was practicable to design the product more safely, and that the defective design was a substantial factor in causing injury.  The plaintiff’s claim failed because she did not allege a safer alternative design.

Lewis v Abbott Labs, No. 08 Civ. 7480(SCR)(GAY), 2009 WL 2231701 (S.D.N.Y. July 24, 2009); Voss v Black & Decker Manufacturing Co, 59 N.Y.2d 102 (1983); Goldin v Smith & Nephew Inc., No. 12 Civ. 9217(JPO), 2013 WL 1759575 (S.D.N.Y. Apr. 24, 2013).

2. Obiter, a complete ban on a product is not a permissible “safer alternative design” in a design defect case

Clinton v Brown & Williamson Holdings Inc., 498 F.Supp.2d 639 (S.D.N.Y. 2007) and Adamo v Brown & Williamson Tobacco Corp, 11 NY.3d 545 (2008), considered.

3. The case was not appropriate for analysis under the principle of “market share liability” for the substantially the same reasons as those outlined by the trial court.

Hymowitz v Eli Lilly & Co, 73 NY.2d 487 (1989), considered.

Judgment

The Court’s judgment is available here.

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Pelman v McDonald’s Corporation (2003) H&FLR 2014-33

Ashley Pelman and Ors v McDonald’s Corporation and Ors (2003) H&FLR 2014-33

United States District Court (S.D.N.Y.)

22 January 2003

Coram: Sweet DJ

Appearing for the Plaintiffs: Mr Samuel Hirsch (of Samuel Hirsch & Associates)
Appearing for the Defendants: Messrs Thomas Quigley, Bradley Lerman and Bruce Braun (of Winston & Strawn) and Mesdames Anne Kimball and Sarah Olson (of Wildman, Harrold, Allen & Dixon)

Catchwords: New York – infant – McDonald’s – overweight – heart disease – diabetes – hypertension – high cholesterol – deceptive acts – negligence – puffery – failure to warn

Facts: The plaintiff was an infant who had consumed the hamburgers and other items sold by the defendant. She had become overweight and developed (inter alia) heart disease, diabetes, hypertension and high cholesterol. She issued proceedings aganst the defendant, alleging deceptive acts and practices breaching the Consumer Protection Act, N.Y. General Business Law, §349 and §350 (by failing to disclose the ingredients and/or health effects of their products) and the N.Y.C. Administrative Code, Ch. 5, 20-700 (in relation to the defendant’s marketing practises). She also alleged that the defendant had negligently sold products which caused negative health effects and which were addictive, and that it had failed to warn cusomers of the makeup of its products and the health-effects of consuming them.

The defendant sought summary dismissal of the complaint under r.12(b)(6) of the Federal Rules of Civil Procedure.

Held: Dismissing the complaint with leave to re-plead –

1. The plaintiff had not identified an instance of deceptive acts or advertising to children, and therefore the allegations on these points had to be dismissed.

2. Obiter, that encouraging consumers to eat McDonald’s “everyday!” was mere puffery absent a claim that doing so would have particular health effects.

Coastal Communications Corp. v. Adams/Laux Co Inc, 40 USPQ 2d 1383-1996 (SDNY, 24 September 1996), considered.

3. An allegation of liability to consumers based on their over-consumption of products will fail if the effects of overconsumption are common knowledge. In order to state a claim it would be necessary to allege that the products are so extraordinarily unhealthy as to be (a) outside the reasonable contemplation of consumers, or (b) dangerous even in their intended use. The Court noted the significant processing undergone by the defendant’s products and gave leave to amend the complaint to raise allegations on the point.

4. For the claim to survive an application to dismiss, it would be necessary to show that the plaintiff ate at McDonalds on enough occasions to raise a question as to whether its products played a significant role in her health problems. The more often she ate there, the more likely it was that its products had caused her injuries. Further, the complaint would need to address any impact from other variables (for example, genetics).

5. A manufacturer will not be liable for a failure to warn of its products’ unhealthy attributes if the risks are sufficiently obvious without a warning. However, this does not apply where elements of the hazard are concealed or not reasnably apparent to the user.

Andrulonis v United States, 924 F. 2d 1210 (2d Cir., 1991); Liriano v Hobart Corp., 92 NY.2d 232, 677 NYS.2d 764, 700 NE.2d 303 (NY, 1998), followed.

Judgment

The Court’s judgment is available here.

NHS Trust v K (2012) H&FLR 2014-29

A National Health Service Trust v K and Anor (2012) H&FLR 2014-29

Court of Protection (UK)

15 October 2012

Coram: Holman J

Appearing for the Applicant: Mr Charles Utley (instrusted by the applicant’s legal department)
Appearing for the First Respondent: Ms Amy Street (instructed by the Official Solicitor)
Appearing for the Second Respondent: Mr Charles Utley (instrusted by Kennedys Law LLP)

Catchwords: United Kingdom – Person under disability – cancer – surgery – obesity – diabetes – asthma – heart dysrhythmia – best interests – sedation

Facts: A 61 year old lady was diagnosed with uterine cancer. The National Health Service (NHS) Trust responsible for her care considered that she should undergo a hysterectomy and bilateral salpingo-oophorectomy and lymphnodectomy. Non-surgical treatments were available but there was reason to doubt their efficacy. She suffered from a 40 year history of a psychotic disorder and chronic schizophrenia and (among other things) denied that she suffered cancer or required surgery. It was common ground that she was unable to make informed decisions as to major medical treatment.

The patient suffered marked co-morbidities including superobesity, diabetes and pronounced asthma, all of which increased the risk of serious complications resulting from the surgery. She also had a heart dysrhythmia which created a risk that agitation (such as that caused by fighting physical restraints) might be fatal.

The Official Solicitor, as her litigation friend, considered the proposed surgery too dangerous. The NHS Trust applied to the Court of Protection for approval to perform the surgery.

Held: Granting the application –

1. The Court of Protection is required to make the decision for the patient in her best interests. To assess where her best interests lie, the court must consider all relevant circumstances including advantages and disadvantages.

2. In order to minimise the risk of the patient reacting advsersely to the prospect of surgery, it would be lawful to sedate her before telling her of the operation to be performed, and before administering anaesthesia.

DH NHS Foundation Trust v PS [2010] Med LR 320, [2010] EWHC 1217 (Fam), [2010] Fam Law 927, [2010] 2 FLR 1236, considered.

3. A lymphnodectomy would add to the duration and gravity of the surgery and increased the risks involved. In the circumstances, this element of the surgery was not approved.

Judgment

The Court’s judgment is available here.

Hinojosa v Livingston (2014) H&FLR 2014-28

Ramona Hinojosa v Brad Livingston and Ors (2014) H&FLR 2014-28

United States District Court (S.D. Texas)

16 January 2014

Coram: Ramos J

Appearing for the Plaintiff: Jeff Edwards (of Edwards Law)
Appearing for the Defendants: Not identified.

Catchwords: Texas – prison – negligence – hyperthermia – hypertension – diabetes – depression – schizophrenia – obesity – death – Americans with Disabilities Act – Rehabilitation Act – Federal Rules of Civil Procedure

Facts:  On 29 August 2012 the plaintiff’s son died of hyperthermia while incarcerated in a prison operated by the Texas Department of Criminal Justice.  The plaintiff alleged that the defendant had failed to accommodate the deceased’s disabilities (particularised as hypertension, diabetes, depression, schizophrenia and obesity), resulting in his death.  It was contended that this breached the Americans with Disabilities Act (42 USC §12132) and the Rehabilitation Act (29 USC §794), giving her a entitlement to recover damages.

The defendant applied to dismiss the proceedings for failure to state a claim under r. 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively that she be required to re-plead sufficient facts to identify the elements of her causes of action under the Acts.

Held: Denying the application, that –

1.  It was sufficient to state a claim for the plaintiff to allege that the defendant knew of the risks and dangers of certain health conditions and medications, that it knew the deceased suffered from those conditions and used those medications, and that despite having that knowledge, the defendant failed to make reasonable accommodations, as a result of which the deceased suffered greater pain and punishment than non-disabled prisoners (i.e. death).  Although all inmates faced the same environmental conditions, they were more burdensome for the deceased because of his disabilities.

2.  If a defendant knows of an individual’s disability and needs but takes no action, it will not be necessary for the disabled person to have requested an accommodation to state a claim under the Americans with Disabilities Act.

McCoy v Texas Department of Criminal Justice, CA No. C-05-370 (S.D. Tex. May 19, 2006), followed

Judgment

The Court’s judgment is available here.

S.E.F. v Archer-Daniels-Midland Co & Ors (2014) H&FLR 2014-8

S.E.F. v Archer-Daniels-Midland Co & Ors (2014) H&FLR 2014-8

United States District Court (W.D.N.Y.)

21 April 2014

Coram: Skretny CJ

Appearing for the Plaintiff: J. Michael Hayes (of Law Offices of J. Michael Hayes)
Appearing for the Defendant: Kevin Hogan (of Phillips Lytle LLP) and Dan K. Webb, Stephen V. D’Amore, Scott P. Glauberman and Cornelius M. Murphy (all of Winston & Strawn LLP)

Catchwords: New York – high-fructose corn syrup – diabetes – negligence – product liability – failure to warn – market-share liability – feasible redesign

Facts: The defendants* were manufacturers of high-fructose corn syrup (HFCS). The plaintiff was a 14 year old girl who alleged that she had consumed HFCS in common foods and that this caused her to develop Type 2 diabetes. She sought compensation from the defendants based on negligence, gross negligence, strict products liability and failure to warn of the danger of a product. She relied on the doctrine of market-share liability, whereby a defendant can be presumed liable for a plaintiff’s injury to the extent of its share of the relevant market**.

The defendants’ position was that the plaintiff could neither connect her condition to HFCS, nor to any particular defendant. It was also contended that Federal food-additive laws pre-empted her claim. The defendants applied to dismiss the claim.

Judicial notice was taken that type 2 diabetes could be caused by a number of factors including diet, exercise (or lack thereof) and family history. It was common ground that the law of the state of New York applied to the claim.

Held, dismissing the plaintiff’s claim,

(1) The plaintiff had failed to state a plausible ground for relief and therefore the claim failed.

(2) An implausible claim ought not be allowed to proceed on the basis that may be validated or undermined through discovery.

Ashcroft v Iqbal, 556 US 662 (2009) and Bell Atl. Corp. v Twombly, 550 US 544 (2007), followed.
Pelman v McDonald’s Corp., 396 F.3d 508 (2d Cir., 2005), not followed.

(3) New York law does not allow “market share liability” to apply in cases where the manifestation of injury is not alleged to be far removed from the time of the allegedly harmful product’s consumption. It also does not allow the doctrine to apply where there is no signature injury conclusively linking the product to the harm, and certainly not where there is no clear public policy that it should apply.

Hamilton v Beretta USA Corp., 96 NY.2d 222, 750 NE.2d 1055 (2001) and Brenner v American Cyanamid Co., 263 AD.2d 165 (4th Dept, 1999), followed.

(4) New York law recognizes claims of strict liability in relation to design defects where it can be shown that: the product as designed presented a substantial risk of harm; it was feasible to design it in a safer manner; and the design defect was a substantial factor in causing injury. However, if the necessary redesigning causes the product to cease to exist, a design defect claim must fail.

DiBartolo v Abbott Labs., 914 F. Supp. 2d 601 (S.D.N.Y., 2012) and Clinton v Brown & Williamson Holdings Inc., 498 F. Supp. 639 (S.D.N.Y., 2007), followed.

Judgment

The Court’s judgment is available here.

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* Archer-Daniels-Midland Co, Cargill Inc, Ingredion Inc, Penford Products Co, Tate & Lyle Ingredients Americas LLC and Roquette America Inc.
** Hymowitz v Eli Lilly & Co, 73 NY.2d 487; 539 NE.2d 1069 (1989).