Porrazo v. Bumble Bee Foods, LLC et al
Filing
24
OPINION AND ORDER: Defendants' Motion for Judicial Notice is GRANTED, and Defendants' Motion to Dismiss is GRANTED as to Counts III and IV, as to the allegations for breach of implied warranty and negligent failure to warn against Stop & Sh op within Count II, and as to the allegations within Count V as to subsections 200(2), 200(3), 200(5), and 200(9), and DENIED in all other respects. The Clerk of the Court is respectfully directed to terminate the pending motions, (Docs. 19, 22). The remaining parties are directed to appear for a status conference on October 14, 2011, at 11:00 a.m. (Signed by Judge Cathy Seibel on 9/30/2011) (lnl) (Main Document 24 replaced on 9/30/2011) (fk).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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LEE PORRAZZO,
Plaintiff,
OPINION AND ORDER
- against 10-CV-4367 (CS)
BUMBLE BEE FOODS, LLC and THE STOP & SHOP
SUPERMARKET COMPANY, LLC,
Defendants.
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Appearances:
Christina Maria Killerlane
Law Offices of James J. Killerlane
White Plains, New York
Counsel for Plaintiff
Kenneth A. Schoen
Scott H. Goldstein
Bonner, Kiernan, Trebach & Criciata
New York, New York
Counsel for Defendants
Seibel, J.
Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint for
failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), (Doc. 19), and
Defendants’ unopposed Motion for Judicial Notice, (Doc. 22). For the reasons stated below
Defendants’ Motion for Judicial Notice is GRANTED and Defendants’ Motion to Dismiss is
GRANTED in part and DENIED in part.
I.
Background
The following facts are assumed to be true for purposes of the motion.
1
Plaintiff Lee Porrazzo consumed approximately ten six-ounce cans of tuna fish per week
from approximately January 2006 to October 2008. (Am. Compl. ¶ 1.)1 The tuna fish was
canned by Defendant Bumble Bee Foods, LLC (“Bumble Bee”). (Id.) Plaintiff purchased this
tuna fish, which was frequently on sale, from Defendant Stop & Shop Supermarket Company
(“Stop & Shop”). (Id.) During this time Bumble Bee promoted its tuna fish as an “excellent and
safe source of high quality protein, vitamins, minerals and Omega-3 fatty acids, as well as being
low in saturated fats and carbohydrates[,] and touted its product as being ‘heart healthy.’” (Id. ¶
3.) The Bumble Bee tuna fish did not provide any warning that it contained mercury, “an
odorless, colorless, tasteless, poisonous, heavy metal.” (Id. ¶ 4.)
At some point between January 2006 and October 2008, Plaintiff began to experience,
two to three times per week, “episodes of chest pains, heart palpitations, sweatiness, dizziness,
and lightheadedness,” which led him to believe that he had a heart condition. (Id. ¶ 5.) Plaintiff
sought medical attention and underwent numerous tests to understand the cause of his symptoms,
but none of these tests provided an answer. (Id. ¶ 5.) On April 14, 2006, Plaintiff went to the
White Plains Hospital Emergency Room because he believed (incorrectly) that he was having a
heart attack. (Id. ¶ 6.)
On or about October 1, 2008, Plaintiff’s primary care practitioner ordered a heavy metals
blood test, which showed that there was an elevated level of mercury in Plaintiff’s blood. (Id. ¶
7.) Specifically, Plaintiff’s blood mercury level was 23 mcg/L as opposed to the less than 10
mcg/L, which is normal. (Id.) On the same date, the New York State Department of Health
contacted Plaintiff by telephone, advised him that he had a dangerous level of mercury in his
blood, asked him questions, filled out a questionnaire, and instructed him to stop eating tuna fish.
(Id. ¶ 8.) Plaintiff stopped eating tuna fish, and a blood test on November 4, 2008, revealed that
1
“Am. Compl.” refers to Plaintiff’s Amended Complaint, filed on August 31, 2010. (Doc. 9.)
2
his mercury levels had returned to normal. (Id. ¶ 9.) Plaintiff no longer suffered the heart attacklike symptoms previously described, but he alleges that he “remains worried today about what
effects the mercury has had on his health.” (Id.)
Plaintiff filed the Amended Complaint on August 31, 2010, alleging claims for: (1)
breach of implied warranty of merchantability and fitness for consumption; (2) failure to warn
under both strict liability and negligence theories; (3) “emotional distress;” (4) violations of New
York State Agriculture and Markets Law; and (5) violations of New York State General Business
Law. (Doc. 9.)
II.
Legal Standards
A.
Motion to Dismiss
“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.’” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (alteration, citations, and internal quotation marks
omitted). While Federal Rule of Civil Procedure 8 “marks a notable and generous departure
from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 129 S. Ct. at 1950.
3
In considering whether a complaint states a claim upon which relief can be granted, the
court may “begin by identifying pleadings that, because they are no more than conclusions, are
not entitled to the assumption of truth,” and then determine whether the remaining well-pleaded
factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id.
Deciding whether a complaint states a plausible claim for relief is “a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Id.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
relief.’” Id. (second alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)).
B.
Consideration of Documents Outside the Pleadings
When deciding a motion to dismiss, the Court is entitled to consider the following:
(1) facts alleged in the complaint and documents attached to it or incorporated in
it by reference, (2) documents “integral” to the complaint and relied upon in it,
even if not attached or incorporated by reference, (3) documents or information
contained in [a] defendant’s motion papers if plaintiff has knowledge or
possession of the material and relied on it in framing the complaint, (4) public
disclosure documents required by law to be, and that have been, filed with the
Securities and Exchange Commission, and (5) facts of which judicial notice may
properly be taken under Rule 201 of the Federal Rules of Evidence.
Weiss v. Inc. Vill. of Sag Harbor, No. 10-CV-2603, 2011 WL 222480, at *4 (E.D.N.Y. Jan. 24,
2011) (internal quotation marks omitted); accord Chambers v. Time Warner, Inc., 282 F.3d 147,
152–53 (2d Cir. 2002). A document is considered “integral” to the complaint where the plaintiff
has “reli[ed] on the terms and effect of [the] document in drafting the complaint.” Chambers,
282 F.3d at 153 (emphasis omitted). Such reliance “is a necessary prerequisite to the court’s
consideration of the document on a dismissal motion; mere notice or possession is not enough.”
Id.; see Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006) (integral documents may include
documents partially quoted in complaint or on which plaintiff relied in drafting complaint). If a
4
document outside of the complaint is to form the basis for dismissal, however, two requirements
must be met in addition to the requirement that the document be “integral” to the complaint: (1)
“it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the
document,” and (2) “[i]t must also be clear that there exist no material disputed issues of fact
regarding the relevance of the document.” Faulkner, 463 F.3d at 134.
III.
Discussion
A.
Documents the Court May Consider
Before addressing the merits of Defendants’ Motion to Dismiss, I must first address
which documents may properly be considered on this motion. Defendants’ request that I take
judicial notice of the following documents of the United States Food and Drug Administration
(“FDA”):
“What You Need to Know About Mercury in Fish and Shellfish,” published by the
United States Department of Health and Human Services and the United States
Environmental Protection Agency, (Goldstein Cert. Ex. A)2;
“Backgrounder for the 2004 FDA/EPA Consumer Advisory: What You Need to
Know About Mercury in Fish and Shellfish,” published by the United States Food
and Drug Administration and the United States Environmental Protection Agency,
(Goldstein Cert. Ex. B);
Letter from Lester M. Crawford, D.V.M., Ph.D., United States Commissioner of Food
and Drugs, to Bill Lockeyer, Attorney General of the State of California, dated
August 12, 2005, re: a suit filed on June 21, 2004 in San Francisco Superior Court,
(Goldstein Cert. Ex. C);
Section 540.600 of the Federal Food and Drug Administration’s Compliance Policy
Guide, which allows up to one part of methyl mercury per million non-mercury parts
of the edible portion of seafood, (Goldstein Cert. Ex. D);
FDA Letter Responding to Martek Petition, dated September 8, 2004, (Goldstein
Cert. Ex. E).
2
“Goldstein Cert.” refers to the October 20, 2010 Certification of Scott H. Goldstein in support of
Defendants’ motion requesting judicial notice. (Doc. 22.)
5
“Rule 201 of the Federal Rules of Evidence permits judicial notice of a fact that is ‘either (1)
generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot be reasonably[] questioned.’”
U.S. v. Bryant, 402 F. App’x 543, 545 (2d Cir. 2010). Further, it is well-established that courts
may take judicial notice of publicly available documents on a motion to dismiss. See Byrd v.
City of N.Y., No. 04-CV-1396, 2005 WL 1349876, at *1 (2d Cir. June 8, 2005) (“[M]aterial that
is a matter of public record may be considered in a motion to dismiss.”); Blue Tree Hotels Inv.
(Can.) v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (courts
can “look to public records, including complaints filed in state court, in deciding a motion to
dismiss”); In re Yukos Oil Co. Secs. Litig., No. 04-CV-5243, 2006 WL 3026024, at *21
(S.D.N.Y. Oct. 25, 2006) (“Court may take judicial notices of [published] articles on a motion to
dismiss without transforming it into a motion for summary judgment.”) (citing Kramer v. Time
Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991)). “In the motion to dismiss context, . . . a court
should generally take judicial notice ‘to determine what statements [the documents] contain[ ] . .
. not for the truth of the matters asserted.’” Schubert v. City of Rye, No. 09-CV-6867, 2011 WL
1326039, at *3 (S.D.N.Y. Mar. 31, 2011) (alterations in original) (quoting Kramer v. Time
Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991)). Because the documents of which Defendants
request I take judicial notice are all publicly available on the FDA website, this unopposed
motion is granted and I take judicial notice of these documents for the fact that the statements
were made, not for their truth.
B.
Federal Preemption
Defendants contend that Plaintiff’s state law claims must be dismissed because they are
“preempted by a ‘pervasive federal regulatory scheme implemented by and through the FDA’
6
which specifically addresses and regulates the extent to which the Defendants could distribute
canned tuna containing legally permitted levels of methylmercury and whether it was required to
warn consumers of trace amounts.” (Defs.’ Mem. 25–26.)3 In particular, Defendants assert that
“the FDA has already extensively regulated this arena by establishing the maximum
concentration of methylmercury for a can of tuna to be considered fit for consumption, issuing
advisories to target groups and implementing a comprehensive education campaign while
expressly rejecting the notion of and/or need for warning the general population of the presence
of methylmercury in tuna.” (Id. at 29–30.)
The Supremacy Clause, U.S. Const., art. VI, cl. 2, “invalidates state laws that ‘interfere
with, or are contrary to,’ federal law.” Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc.,
471 U.S. 707, 712 (1985) (quoting Gibbons v. Ogden, 9 Wheat. 1, 211 (1824)). “[S]tate laws
can be pre-empted by federal regulations as well as by federal statutes,” id.at 713; see Fidelity
Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982) (agency “regulations have no
less pre-emptive effect than federal statutes”), at least where the regulations “are properly
adopted in accordance with statutory authorization,” City of N. Y. v. FCC, 486 U.S. 57, 63
(1988). Preemption inquiries are “guided by the rule that [t]he purpose of Congress is the
ultimate touchstone in every pre-emption case.” Altria Grp., Inc. v. Good, 555 U.S. 70, 76
(2008) (alteration in original and internal quotation marks omitted). In addressing questions of
preemption, courts are to begin their analysis “with the assumption that the historic police
powers of the States [are] not to be superseded by the Federal Act unless that was the clear and
manifest purpose of Congress.” Id.at 77 (alteration in original). This assumption “applies with
particular force when Congress has legislated in a field traditionally occupied by the States.” Id.
3
“Defs.’ Mem.” refers to Defendants Bumble Bee Foods, LLC and the Stop & Shop Supermarket Company,
LLC’s Memorandum of Law in Support of Their Motion to Dismiss Plaintiff’s Amended Complaint for Failure To
State a Claim. (Doc. 19.)
7
In Fellner v. Tri-Union Seafoods, L.L.C., the Third Circuit addressed a case almost
identical to this one and found that the plaintiff’s state law claims were not preempted. 539 F.3d
237 (3d Cir. 2008). Specifically, in Fellner the plaintiff alleged that her diet consisted almost
exclusively of the defendant’s canned tuna products for a period of five years, that those tuna
products contained methylmercury, and that due to defendant’s failure to warn of the dangers of
methylmercury, plaintiff contracted mercury poisoning and suffered physical and emotional
injuries. As in the case at bar, the Fellner defendant argued that Plaintiff’s state law claims were
preempted by federal law. The Third Circuit disagreed:
This is a situation in which the FDA has promulgated no regulation
concerning the risk posed by mercury in fish or warnings for that risk, 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 other respect. Fellner’s lawsuit does not conflict
with the FDA’s “regulatory scheme” for the risks posed by mercury in fish or the
warnings appropriate for that risk because the FDA simply has not regulated the
matter. Fellner’s duty-to-warn claim does not conflict with an FDA determination
deliberately to forego warnings because the FDA took no action to preclude state
warnings—at least, no binding action via ordinary regulatory procedures . . . .
Finally, Fellner’s lawsuit does not conflict with the FDCA’s food misbranding
provision or the FDA’s actions thereunder because the FDA has not exercised its
misbranding authority under the FDCA with respect to methylmercury warnings
for fish.
Fellner, 539 F.3d at 256.
As far as this Court is aware, since the time of the Fellner decision the FDA has
promulgated no new regulations with respect to methylmercury in tuna. Moreover, the Fellner
court had before it the same supporting documents that were submitted to me on this motion—
namely, the five documents of which I have been asked to take judicial notice.4
4
The district court in Fellner took judicial notice of all these documents except for the FDA’s Letter
Responding to the Martek Petition, (Goldstein Cert. Ex. E). See Fellner, 539 F.3d at 242–43. Although the lower
court did not take formal judicial notice of that last document, the circuit court nonetheless specifically addressed it
and opined that it failed to see how it “might preempt Fellner’s lawsuit” or how it spoke “to a relevant issue,”
because it “concerned not the risks of mercury in fish specifically but rather the impact of dietary supplements of
8
Although I am not bound by the Fellner Court’s decision, I find its reasoning and
approach to this issue persuasive. Thus, for substantially the same reasons cited by the Fellner
court, I decline to find that Plaintiff’s state law claims here are preempted by a pervasive federal
regulatory scheme implemented by and through the FDA.5
C.
Proximate Cause
Defendants next assert that all of Plaintiff’s claims must be dismissed because Plaintiff
fails to allege that he sustained any injuries that were proximately caused by his consumption of
Defendants’ canned tuna fish. (Defs.’ Mem. at 14.) Specifically, Defendants assert that despite
Plaintiff’s consultations “with numerous physicians . . . there was no diagnosis of any specific
ailment,” and although Plaintiff claims that he remains worried about what effects the mercury
has had on his health, “he has not alleged the existence of any actual ill health effects caused by
consumption of tuna.” (Id.) Defendants also assert that Plaintiff has not alleged “that the
‘omega-3 fatty acids’ on heart disease,” and the “FDA merely explained that it would decline to require that the
omega-3 fatty acid health claim be accompanied by a mercury warning, not that all mercury warnings should be
affirmatively prohibited.” Fellner, 539 F.3d at 253 n.10.
5
Defendants contend that Plaintiff’s Opposition, which relies heavily on the Fellner decision, is “devoid of
any mention of the live circuit split on this issue.” (Defendants Bumble Bee Foods, LLC and the Stop & Shop
Supermarket Company, LLC’s Reply Brief in Further Support of Defendants’ Motion to Dismiss (“Defs.’ Reply”),
Doc. 21.) Defendants’ base their assertion that there is a “live circuit split” on their claim that “the California
Supreme Court affirmed a thirty-eight page decision which concluded that: (1) California warning laws were
preempted by a conflict with the FDCA; and (2) methylmercury in tuna is naturally occurring. People ex rel. Brown
at 171 Cal. App. 4th 1549 (1st Dist. 2009).” (Id.) This assertion is disingenuous. To begin, the California Supreme
Court did not express any opinion with respect to the Court of Appeal’s affirmation of the trial court’s ruling in that
case. Instead, the California Supreme Court merely denied a request for depublication of the Appellate Court’s
opinion, People v. Tri-Union Seafoods, No. A116792, 2009 Cal. LEXIS 6018 (June 24, 2009), an action which “is
not an expression of the court’s opinion of the correctness of the result of the decision or of any law stated in the
opinion.” Cal. R. Ct. 8.1125(d). Moreover, the California Appellate Court, which did express an opinion regarding
the trial court’s decision, was explicit that it affirmed the lower court’s judgment “solely on the ground that
substantial evidence supports the trial court’s finding that methylmercury in tuna is naturally occurring.” People ex
rel. Brown, 171 Cal. App. 4th at 1576 (1st Dist. 2009). The assertion that either the California Supreme or
Appellate Court made any determination with respect to preemption is simply wrong. Furthermore, even if either
court had reached the preemption issue and determined that state law was preempted in the circumstances present
here, this would not create a “circuit split,” which occurs when two or more federal courts of appeal differ in their
interpretations. In any event, as noted above, I agree with the Fellner court’s analysis of the preemption issue here.
9
elevated mercury level in his blood was proximately caused by his consumption of Bumble Bee
canned tuna fish.” (Defs.’ Reply at 8.)6
“Under New York law, [i]t is well settled that, whether [an] action is pleaded in strict
products liability, breach of warranty or negligence, it is a consumer’s burden to show that a
defect in the product was a substantial factor in causing the injury.” Viscusi v. P & G-Clairol,
Inc., 346 F. App’x 715, 716 (2d Cir. 2009) (alterations in original and internal quotation marks
omitted); see Colon ex rel. Molina v. BIC USA, Inc., 199 F. Supp. 2d 53, 82 (S.D.N.Y. 2001)
(“To make out a prima facie case for negligence in New York, a plaintiff must show (1) that the
manufacturer owed plaintiff a duty to exercise reasonable care; (2) a breach of that duty by
failure to use reasonable care so that a product is rendered defective, i.e. reasonably certain to be
dangerous; (3) that the defect was the proximate cause of the plaintiff’s injury; and (4) loss or
damage. . . . Strict liability in New York requires a showing that (1) a defective product (2)
caused plaintiff’s injury.”); Fahey v. A.O. Smith Corp., 908 N.Y.S.2d 719, 723 (2d Dep’t 2010)
(“Whether an action is pleaded in strict products liability, breach of warranty, or negligence, the
plaintiffs must prove that the alleged defect is a substantial cause of the events which produced
the injury.”).
Defendants’ contention that Plaintiff has not alleged that he suffered injury is unavailing.
While Plaintiff has not conclusively proven that he sustained long-term physical injuries from his
ingestion of mercury, he has pleaded that he suffered from an extremely elevated blood mercury
level, and a series of heart attack-like symptoms including episodes of chest pains, heart
palpitations, sweatiness, and dizziness and lightheadedness, all of which constitute injury. (Am.
Compl. ¶¶ 5, 6, 23, 25, 39, 41, 44.). See Vamos v. Coca-Cola Bottling Co., 627 N.Y.S.2d 265,
6
“Defs.’ Reply” refers to Defendants Reply Brief in Further Support of Defendants’ Motion to Dismiss, filed
on January 14, 2011. (Doc. 21.)
10
270–71, 396 (N.Y. Civ. Ct. 1995) (plaintiff who “had a rapid heartbeat, an upset stomach, was
nauseous and sweating . . . and vomited, and . . . had diarrhea” suffered injury for purposes of
products liability; “extent and permanency” of plaintiff’s injury “relate to the issue of damages,”
not liability); Mitchell v. Coca Cola Bottling Co., 200 N.Y.S.2d 478, 479–80 (3d Dep’t 1960)
(nausea and vomiting resulting from drinking soda containing foreign substance is recoverable
injury). Thus, at this stage, Plaintiff’s factual allegations are sufficient for me to find it plausible
that Plaintiff suffered an injury.
I also find that Plaintiff has plausibly alleged that Defendants’ conduct was the proximate
cause of his injuries. “Proximate cause requires only some direct relation between the injury
asserted and the injurious conduct alleged, and excludes only those link[s] that are too remote,
purely contingent, or indirect.” Staub v. Proctor Hosp., 131 S. Ct. 1186, 1192 (2011) (internal
quotation marks omitted). Moreover, “[t]he issue of proximate cause may be determined as a
matter of law [only] where no reasonable person could find causation based on the facts alleged
in the complaint.” Pelman v. McDonald’s Corp., 237 F. Supp. 2d 512, 538 (S.D.N.Y. 2003)
(finding “[n]o reasonable person could find probable cause based on the facts in the Complaint
without resorting to ‘wild speculation’”). Plaintiff asserts that Bumble Bee canned tuna fish was
his major source of protein from approximately January 2006 to October 2008, (Am. Compl. ¶
3), that it contained mercury, (id. ¶ 4), that during that time period he began to experience
physical symptoms that led him to believe he had a heart condition, (id. ¶¶ 5–6), that an October
2008 heavy metals blood test revealed that Plaintiff had a very elevated blood mercury level, (id.
¶ 8), that Plaintiff was informed of these test results and instructed to stop eating tuna fish, which
he did, and that his mercury levels returned to normal and his symptoms abated, within a month
thereafter, (id. ¶¶ 8–9). Based on the foregoing, Plaintiff asserts that he was “caused to sustain
11
serious personal injuries” as a result of the defendants’ tuna fish products which contained
“poisonously high levels of mercury.” (Id. ¶ 39.) This timeline provides more than sufficient
factual allegations to make it plausible that Plaintiff’s ingestion of Defendants’ tuna fish was the
cause of his injuries.7 Viewing the facts in the Amended Complaint in the light most favorable
to the Plaintiff, as I must on a motion to dismiss, I find that Plaintiff has sufficiently alleged a
direct causal relationship between his consumption of Defendants’ tuna fish and his injuries.
Defendants’ Motion to Dismiss on this basis is therefore denied.
D.
Emotional Distress Claim
Defendants next assert that Plaintiff’s claims for emotional distress must be dismissed
because Plaintiff fails to allege a physical injury which was proximately caused by his
consumption of Defendants’ canned tuna fish. As described above, I find he has sufficiently
pleaded the same. But emotional distress is a prayer for relief, not a separate cause of action, see
Brennan v. N.Y. Law Sch., No. 10-CV-0338, 2011 WL 2899154, at *1 (S.D.N.Y. Jul. 11, 2011)
(granting Plaintiff’s “motion to amend to add a request for emotional distress damages to the
prayer for relief”); Galotti v. Town and City of Stamford, No. 96-CV-0224, 1996 WL 684409, at
*5 (D. Conn. Nov. 19, 1996) (“Damages for emotional distress may be recovered . . . . However,
they should be included as part of the ‘prayer for relief’ section of the complaint. They are not to
be pled as a separate count.”), and Plaintiff’s claims for emotional distress are therefore
dismissed. That Plaintiff’s claims for emotional distress are dismissed does not, however,
7
Defendants argue that Plaintiff concedes that the cause of his symptoms could not be determined. (See
Defs.’ Mem. 13 (“[D]espite consulting with numerous doctors, no one was able to causally relate any of the
plaintiff’s health problems with his alleged elevated mercury levels and alleged tuna consumption.”); Defs.’ Reply 8
(“[D]espite a multitude of exams and testing by several medical providers plaintiff was not found to have any
physical ailment.”).) In so doing Defendants disingenuously interpret statements in paragraphs six and seven of the
Amended Complaint that clearly refer to the period before Plaintiff’s blood was tested for mercury. That Plaintiff’s
mercury levels were dangerously high until he stopped eating Defendants’ tuna fish, whereupon they returned to
normal and his symptoms disappeared, more than plausibly supports the conclusion that the tuna caused the elevated
mercury and the elevated mercury caused his symptoms. No more is required at the motion to dismiss stage. That
the cause of the symptoms was not initially apparent does nothing to undermine the plausibility of the allegations.
12
preclude Plaintiff’s ability to recover emotional distress damages if he is successful on his
remaining claims. See Goldberg v. N.Y. Times, 411 N.Y.S.2d 294, 295 (1st Dep’t 1978) (“The
relief sought, though erroneously stated as a separate cause, should be deemed part of the prayer
for damages.”).
E.
Plaintiff’s Product Liability Claims
Defendants also contend that Plaintiff’s common law claims—Counts I through IV, for
breach of the implied warranties of merchantability and fitness for consumption8 and failure to
warn—must be dismissed because, among other things: (1) consumers reasonably expect canned
tuna fish to contain mercury, which naturally occurs in fish and which Defendants cannot,
through ordinary care, remove; and (2) Plaintiff overconsumed the product.
1.
Legal Standards
Under New York law, “[a] manufacturer who places a defective product on the market
that causes injury may be liable for the ensuing injuries.” Liriano v. Hobart Corp., 92 N.Y.2d
232, 237 (1998). In an action for strict products liability,
a manufacturer, wholesaler, distributor, or retailer who sells a product in a
defective condition is liable for injury which results from the use of the product
regardless of privity, foreseeability or the exercise of due care. The plaintiff need
only prove that the product was defective as a result of either a manufacturing
flaw, improper design, or a failure to provide adequate warnings regarding the use
of the product and that the defect was a substantial factor in bringing about the
injury.
Leary ex rel. Debold v. Syracuse Model Neighborhood Corp., 799 N.Y.S.2d 867, 872–73 (Sup.
Ct. 2005) (internal citations and quotation marks omitted); see Liriano, 92 N.Y.2d at 237 (“A
product may be defective when it . . . is not accompanied by adequate warnings . . . .”).
8
Plaintiff also recites formulaic elements for breach of express warranty, (see Am. Compl. ¶¶ 19, 22, 35,
38), but provides no facts with respect to any express warranty. Accordingly, the Amended Complaint is dismissed
to the extent it alleges a breach of express warranty.
13
A manufacturer may also be held liable under New York law for breach of implied
warranty of merchantability when its products are not “fit for the ordinary purposes for which
such goods are used.” New York U.C.C. § 2-314(2)(c). Specifically, a Plaintiff may recover
“upon a showing that [a] product was not minimally safe for its expected purpose,” and the focus
of a breach of implied warranty inquiry is whether the product meets “the expectations for the
performance of the product when used in the customary, usual and reasonably foreseeable
manners.” Denny v. Ford Motor Co., 87 N.Y.2d 248, 258–59 (1995).
2.
Reasonability of Tuna Consumption
Defendants contend that Plaintiff’s consumption of its canned tuna fish was unreasonable
as a matter of law and that Plaintiff’s claims therefore cannot survive. (See Defs.’ Mem. at 22
(“[A] diet consisting of nearly 1,500 cans or over 500 lbs of tuna in thirty-three months is
undisputedly outside the ‘intended use’ of the product”).) Defendants’ contention is unavailing.
Plaintiff’s daily consumption of one to two cans of tuna fish cannot, as a matter of law at this
stage, be said to be unreasonable.9 Indeed, Plaintiff was arguably exactly the type of consumer
that Defendants desired—a consumer who purchased and consumed their product regularly.
Moreover, even if Plaintiff’s consumption of such quantities of tuna was unreasonable,
Defendants still would be liable for failure to warn if Plaintiff’s conduct was foreseeable. See
9
Defendants attempt to analogize this case to Pelman, which held that fast food restaurants have no duty to
warn customers that certain foods, like hamburgers and french fries, if consumed over a prolonged period of time,
may lead to obesity. 237 F. Supp. 2d at 531–34, 540–43. That case is not, however, instructive here. The Pelman
court stated unequivocally that “[i]t is well-known that fast food in general, and McDonalds’ products in particular,
contain high levels of cholesterol, fat, salt, and sugar, and that such attributes are bad for one.” Id. at 532. By
contrast, there is no indication in the record here, at least at this stage, that it is common knowledge that canned tuna
fish contains high levels of methylmercury and that ingestion of such fish in large quantities can have deleterious
health effects. Thus, unlike the Pelman Plaintiffs, Plaintiff here was allegedly endeavoring to eat a heart-healthy
diet, but because he was unaware that canned tuna fish contained high levels of methylmercury, he inadvertently
exposed himself to an unhealthy and potentially dangerous substance.
I likewise do not find determinative Comment (h) to Section 402A of the Restatement (2d) of Torts, which
asserts that if an “injury results . . . from abnormal consumption, as where a child eats too much candy and is made
ill, the seller is not liable.” I simply cannot determine as a matter of law, at least at this stage, that eating one to two
cans of tuna fish daily in an apparent effort to pursue a heart-healthy diet is unreasonable or unforeseeable, and akin
to child who eats too much candy and thereby makes herself ill.
14
Liriano, 92 N.Y.2d at 240 (manufacturer of defectively designed product liable for failure to
warn of dangers resulting from both intended use of product and foreseeable misuses). It is
plausibly foreseeable that an individual who is trying to pursue a heart healthy diet could
consume one to two cans of canned tuna fish daily, particularly when it was advertised as “low in
fat, high in protein and thus, ‘heart healthy.’” (Pl.’s Mem.14.)10 In any event, the question of
whether Plaintiff’s daily consumption of tuna fish was indeed unreasonable or unforeseeable is
properly left for a jury to determine. See Lugo v. LJN Toys, Ltd., 75 N.Y.2d 850, 852 (1990)
(question of “whether the product was defective and reasonably safe for its intended use or a
reasonably foreseeable unintended use” is for jury); Heller v. Encore of Hicksville, 53 N.Y.2d
716, 718 (1981) (“It was within the province of the jury to determine” whether defendant failed
to warn plaintiff of a “foreseeable” risk); Johnson v. Johnson Chem. Co., 588 N.Y.S.2d 607, 610
(2d Dep’t 1992) (“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.”). Defendants’ motion to dismiss on this basis is therefore
denied.
3.
Reasonable Expectations and Obviousness of Danger
In order to succeed on either a failure to warn claim, or a breach of implied warranty
claim, a plaintiff must also establish that the danger inherent in the injurious product was not
open and obvious and thus something which a reasonable consumer would ordinarily anticipate
finding therein. See Fitzgerald v. Fed. Signal Corp., 883 N.Y.S.2d 67, 69 (2d Dep’t 2009)
(dismissing plaintiff’s strict products liability claim based on defendant’s alleged duty and failure
to warn of risk of hearing loss from prolonged exposure to sirens because “risk alleged is ‘open
10
“Pl.’s Mem.” refers to Plaintiff’s memorandum of law in opposition to Defendants’ motion to dismiss, filed
on January 15, 2011. (Doc. 20.)
15
and obvious’ and ‘readily apparent as a matter of common sense’”); Lamb v. Kysor Indus., 759
N.Y.S.2d 266, 268 (4th Dep’t 2003) (no duty to warn of open and obvious danger of placing
fingers in path of power saw); Belling v. Haugh’s Pools, Ltd., 511 N.Y.S.2d 732, 733 (4th Dep’t
1987) (no duty to warn of open and obvious danger of diving into shallow pool); Langiulli v.
Bumble Bee Seafood, Inc., 604 N.Y.S.2d 1020, 1021 (Sup. Ct. 1993) (breach of warranty claim
stated when “consumer is injured by conditions which he could not have reasonably anticipated
to be present in the product purchased”). Whether a danger is in fact common knowledge among
the public is ordinarily a question of fact that cannot be resolved at the motion to dismiss stage.
See In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 175 F. Supp. 2d 593, 626
n.50 (S.D.N.Y. 2001) (denying defendant’s motion to dismiss plaintiffs’ failure to warn claims
because court could not determine, as matter of law, that “it is common knowledge that gasoline
must be handled with care”); Rudloff v. Wendy’s Rest. 821 N.Y.S.2d 358, 369 (City Ct. Buffalo
2006) (relevant question on breach of implied warranty claim is whether one would reasonably
anticipate substance would be present, and this question is ordinarily one of fact for jury). But
see Kaplan v. Am. Multi-Cinema, Inc., 873 N.Y.S.2d 234, *2 (Civ. Ct. 2008) (table decision)
(determining as matter of law that one reasonably expects un-popped kernels in popcorn);
Vitiello v. Captain Bill’s Rest., 594 N.Y.S.2d 295, 296 (2d Dep’t 1993) (determining, as matter
of law, that one reasonably expects fish filet is not free of all bones).
This is not a case where I can say as a matter of law at this stage that the dangers of
mercury poisoning from consumption of canned tuna fish are open and obvious, and that an
ordinary consumer would necessarily be aware that canned tuna fish contains high levels of
methylmercury, the consumption of which could lead to mercury poisoning. This is particularly
so because mercury is “an odorless, colorless, tasteless,” metal, and thus nothing about the
16
appearance of the fish itself would reveal either that it contains mercury or that such mercury
may be dangerous if consumed on a daily basis. (Am. Compl. ¶ 3.) There may be many
consumers who are unaware that canned tuna fish—which they believe is a low-fat, hearthealthy, source of protein—in fact contains mercury which can, in high quantities, be harmful to
their health. Thus, although the facts as developed may permit the conclusion, by the Court on
summary judgment or by the jury at trial, that consumers do reasonably expect mercury in their
tuna and understand that it can be harmful, the allegations of the Amended Complaint do not
support such a conclusion, and it is not obvious to the Court as a matter of “judicial experience
and common sense.” Iqbal, 129 S. Ct. at 1950.
4.
Failure to Warn
Plaintiff here has adequately set forth a strict liability failure to warn claim. As noted
above, he has established both injury and proximate cause, and has sufficiently alleged that the
dangers of mercury poisoning from consumption of canned tuna fish are not open and obvious.
Further, there is no suggestion at this stage that this particular Plaintiff was, in fact, aware either
that canned tuna fish contained methylmercury or that there were risks inherent in the
consumption of fish which contained high concentrations of this substance. See Colon ex rel.
Molina, 199 F. Supp. 2d at 85 (“A failure-to-warn inquiry focuses on three factors: obviousness
of risk from actual use of product, knowledge of the particular user, and proximate cause.”).
Finally, the fact that methylmercury in tuna may be “naturally occurring” does not necessarily
mean Defendants cannot be strictly liable for failing to warn customers of same.
Defendants nonetheless contend that Stop & Shop cannot be held liable for failure to
warn because “there are no circumstances under which the alleged defect could have been
discovered during a normal inspection while the tuna cans were in Defendant Stop & Shop’s
17
possession.” (Defs.’ Mem. 23.) “There is no question,” however, “that under New York law the
seller of a defective product may be strictly liable for any resultant injury even though the seller
was not responsible for the defect.” Davila v. Goya Foods, Inc., No. 05-CV-8607, 2007 WL
415147, at *6 (S.D.N.Y. Feb. 7, 2007). Thus, an injured plaintiff in a strict liability failure to
warn case may recover from both manufacturers and retail sellers of the product. See Adeyinka
v. Yankee Fiber Control, Inc., 564 F. Supp. 2d 265, 274–75 (S.D.N.Y. 2008) (strict liability for
product defects “also extends to sellers who by reason of their continuing relationships with
manufacturers, 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”) (internal quotation marks omitted). The retailer can be held
strictly liable for failure to warn regardless of whether it could discover the defect upon normal
visual inspection of the product. See Leary ex rel. Debold, 799 N.Y.S.2d at 873 (“Distributors
and retailers may be held strictly liable to injured parties, even though they may be innocent
conduits in the sale of the product . . . . It is well settled that strict products liability extends to
retailers and distributors in the chain of distribution even if they never inspected, controlled,
installed or serviced the product”) (internal quotation marks omitted).11 Defendants’ motion to
11
Defendants argue that under New York law “a retailer is liable for the sale or failure to warn of a defective
product, ‘only if it fails to detect a dangerous condition that it could have discovered during the course of a normal
inspection while the product was in its possession,’” (Defs. Reply 13), citing Pelman, 237 F. Supp. 2d at 523,
Luckern v. Lyonsdale Energy Ltd. P’ship, 722 N.Y.S.2d 632, 636 (4th Dep’t 2001), and Sideris v. Simon A. Rented
Servs., 678 N.Y.S.2d 771, 772 (2d Dep’t 1998). These cases do not, however, relieve Stop & Shop of liability
because they do not address strict liability claims. In both Pelman and Luckern the courts dealt exclusively with
claims that arose under negligence and breach of warranty, not strict liability, and thus they are not analogous here.
In Sideris, plaintiff was injured when she slipped and fell on a floor mat at the restaurant where she was employed.
678 N.Y.S.2d at 772. She brought claims against the company that rented the mat to the restaurant, under
“negligence and, purportedly, breach of implied warranty and strict products liability” theories. Id. The Sideris
court, in a two-page opinion, reversed the lower court’s denial of summary judgment because “plaintiff failed to
proffer sufficient proof to demonstrate the existence of a material issue of fact.” Id. The court further asserted that
the lower court’s judgment was also improper because defendant “demonstrated that it had satisfied its duty to
inspect by inspecting all mats both before and upon delivery.” Id. (internal citation omitted). It is not clear from
this short opinion whether the court believed that defendant’s duty to inspect applied to each of plaintiff’s causes of
actions, or whether it was applicable only to plaintiff’s claims for negligence and/or breach of implied warranty. If
18
dismiss Plaintiff’s strict liability failure to warn claim (Counts I and II) against both Bumble Bee
and Stop & Shop is therefore denied.
Plaintiff has also adequately alleged a negligent failure to warn claim against Bumble
Bee, because “[r]egardless of the descriptive terminology used to denominate the cause of action
(viz, ‘strict liability’ or ‘negligence’), where the theory of liability is failure to warn, negligence
and strict liability are equivalent.” Wolfgruber v. Upjohn Co., 423 N.Y.S.2d 95, 97 (4th Dep’t
1979); see Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 439 (S.D.N.Y. 1999) (“Where
liability is predicated on a failure to warn, New York views negligence and strict liability claims
as equivalent.”) (internal quotation marks omitted); Denny, 87 N.Y.2d at 258 (“Failure to warn
claim . . . couched in terms of strict liability, is indistinguishable from a negligence claim.”)
(internal quotation marks omitted). Defendants’ motion to dismiss Plaintiff’s claim against
Bumble Bee for negligent failure to warn is thus likewise denied.
Defendants are correct, however, that Plaintiff’s negligent failure to warn claim cannot be
sustained against Stop & Shop. Under a negligence theory of liability, a “retailer . . . can be held
liable . . . for the sale of a defective product or for failure to warn only if it fails to detect a
dangerous condition that it could have discovered during the course of a normal inspection while
the product was in its possession.” Pelman, 237 F. Supp. 2d at 523. Consequently, Defendants’
motion to dismiss Plaintiff’s claim (within Count II) for negligent failure to warn against Stop &
Shop is granted.
5.
Breach of Implied Warranty of Merchantability
Plaintiff has also adequately asserted a breach of implied warranty of merchantability
claim here. “To establish that a product is defective for purposes of a breach of implied warranty
the Sideris court in fact intended to assert that defendant could avoid being held liable under a theory of strict
liability if it fulfilled its duty to inspect, this view appears to contradict the vast majority of New York cases that
address this issue.
19
of merchantability claim, a plaintiff must show that the product was not reasonably fit for its
intended purpose, an inquiry that focuses on the expectations for the performance of the product
when used in the customary, usual[,] and reasonably foreseeable manners.” O’Sullivan v. Duane
Reade, Inc., 910 N.Y.S.2d 763, *6 (N.Y. Sup. 2010) (table decision) (internal quotation marks
omitted); see New York U.C.C. § 2-314(2)(c); Derienzo v. Trek Bicycle Corp., 376 F. Supp. 2d
537, 570 (S.D.N.Y. 2005); Denny, 639 N.Y.S.2d at 256; Wojcik v. Empire Forklift, Inc., 783
N.Y.S.2d 698, 701 (3d Dep’t 2004).12 Further, “[i]n a breach of implied warranty action, the
inquiry is not whether there were safer designs available.” Groome v. Matsushita Elec. Corp. of
Am., No. 92-CV-3073, 2000 WL 341134, at *6 (E.D.N.Y. Mar. 30, 2000); see Bah v. Nordson
Corp., No. 00-CV-9060, 2005 WL 1813023, at *13 (S.D.N.Y. Aug. 1, 2005) (“[W]hether or not
there were feasible safer alternative designs . . . is irrelevant to the merits of Plaintiff’s breach of
implied warranty claim.”); Gonzalez by Gonzalez v. Morflo Indus., Inc., 931 F. Supp. 159, 165
(E.D.N.Y. 1996) (“Plaintiff’s recovery in a breach of warranty action depends on a showing that
the product was not minimally safe for its expected purpose, regardless of the feasibility of
12
Plemmons v. Steelcase Inc. held that under New York law, in addition to the reasonable expectation test
cited above, “[a] breach of implied warranty claim requires proof of the following three elements: (1) that the
product was defectively designed or manufactured; (2) that the defect existed when the manufacturer delivered it to
the purchaser or user; and (3) that the defect is the proximate cause of the accident.” No. 04-CV-4023, 2007 WL
950137, at *3 (S.D.N.Y. Mar. 29, 2007) (internal quotation marks omitted). Plemmons cited to three cases all of
which were applying maritime law. See Silivanch v. Celebrity Cruises, Inc., 171 F. Supp. 2d 241, 259 (S.D.N.Y.
2001); In re American Export Lines, Inc., 620 F. Supp. 490, 518 (S.D.N.Y. 1985); Cigna Prop. & Casual Ins. Co. v.
Bayliner Marine Corp., No. 92-7891, 1995 WL 125386, at *12 (S.D.N.Y. Mar. 22, 1995).
Since Plemmons, some courts addressing breach of implied warranty claims under New York law have
picked up the Plemmons language and asserted that the aforementioned three elements are required for establishing
a breach of implied warranty, see, e.g., Oscar v. BMW of N. Am., LLC, 274 F.R.D. 498 (S.D.N.Y. 2011); Pinello v.
Andreas Stihl Ag & Co. KG, No. 08-CV-0452, 2011 WL 1302223 (N.D.N.Y. Mar. 31, 2011); Dayton Superior
Corp. v. Spa Steel Prods., Inc., No. 08-CV-1312, 2010 WL 3825619 (N.D.N.Y. Sept. 24, 2010); Lewis v. White, No.
08-CV-7480, 2010 WL 6465230 (S.D.N.Y. Jul. 1, 2010); Lewis v. Abbott Labs., No. 08-CV-7480, 2009 WL
2231701 (S.D.N.Y. Jul. 24, 2009); Barrett v. Black & Decker, No. 06-CV-1970, 2008 WL 5170200 (S.D.N.Y. Dec.
9, 2008); Dalton v. Stedman Mach. Co., No. 05-CV-0452, 2008 WL 351676 (N.D.N.Y. Feb. 7, 2008), while others
have simply looked to the reasonable expectations test to identify such a breach, see, e.g., Scientific Components
Corp. v. Sirenza Microdevices, Inc., 399 F. App’x 637 (2d Cir. 2010); O’Sullivan, 910 N.Y.S.2d 763; Ferraro v.
Perry’s Brick Co., 924 N.Y.S.2d 308 (Civ. Ct. 2011) (table decision).
20
making the product safer.”); Rudloff, 821 N.Y.S.2d at 368 (neither origin of object nor efforts to
prevent object’s presence are determinative factors in reasonable expectations test).
The relevant question here, therefore, is whether the presence of mercury in Defendants’
canned tuna, without any accompanying warnings, renders it not reasonably fit for the ordinary
purpose for which it was intended. In other words, Plaintiff’s claim for breach of implied
warranty turns upon whether: 1) the customary, usual, and reasonably foreseeable use of tuna
fish includes the type of consumption Plaintiff engaged in—namely, eating approximately one to
two cans of tuna fish daily for more than two years; and 2) Plaintiff reasonably expected
mercury—which, when consumed in those quantities, could be poisonous—to be present in the
fish. As explained above, at this stage Plaintiff has plausibly alleged as much. (The Court on
summary judgment or a jury could, of course, conclude otherwise.) Furthermore, Plaintiff’s
ability to recover under his breach of implied warranty claim is not affected by the feasibility of
making the product safer, and thus whether mercury is naturally present in tuna and/or can be
removed through the use of ordinary care is irrelevant. Because Plaintiff plausibly alleges that
he was, indeed, “injured by conditions which he could not have reasonably anticipated to be
present in the product purchased,” Langiulli, 604 N.Y.S.2d at 1021, Defendants’ motion to
dismiss Plaintiff’s claim for breach of the implied warranty of merchantability as to Bumble Bee
is denied.
With respect to Plaintiff’s claim for breach of implied warranty of merchantability
against Stop & Shop (Count II), however, such claim must fail. For claims for breach of
warranty and negligence, a retailer “cannot be held liable for injuries sustained from the contents
of a sealed product even though a test might have disclosed a potential danger” because “[t]here
[i]s no obligation upon it to make such a test.” Brownstone v. Times Square Stage Lighting Co.,
21
333 N.Y.S.2d 781, 782 (1st Dep’t 1972); see Cosgrove v. Delves’ Estate, 315 N.Y.S.2d 369, 371
(2d Dep’t 1970) (dismissing claim for breach of warranty against retailer because “evidence
established that she could not have discovered any danger by mere inspection [and s]he was not
obligated under these circumstances to . . . test” the product); Alfieri v. Cabot Corp., 235
N.Y.S.2d 753, 757 (1st Dep’t 1962) (retail seller not liable “even though it might have
discovered the dangerous character . . . by a test [because t]here was no obligation upon it to
make such test”). Because Stop & Shop is a retail seller that cannot be held liable under breach
of warranty for a defect it could not discover through ordinary inspection, Defendants’ motion to
dismiss Count II, as to a breach of implied warranty, is granted.
F.
Counts III and IV
Defendants also contend that Counts III and IV should be dismissed because “Plaintiff
improperly couches a common law claim for punitive damages, which is a prayer for relief, as a
cause of action . . . [and] there is no independent cause of action for punitive damages” under
New York law. (Defs.’ Mem. 22.) Counts III and IV appear to merely duplicate the claims that
are set forth in Counts I and II. Thus, to the extent that Counts III and IV are, in fact, simply
requests for punitive damages, they are dismissed as “separate claim[s] for punitive damages . . .
[which] cannot be maintained” because “[i]t is settled that there is no independent cause of
action for punitive damages.” Mayes v. UVI Holdings, 723 N.Y.S.2d 151, 157 (1st Dep’t 2001)
(internal quotation marks omitted). That Counts III and IV are dismissed does not, however,
preclude Plaintiff’s ability to recover punitive damages if he is successful on his remaining
claims. See Goldberg, 411 N.Y.S.2d at 294 (“The relief sought, though erroneously stated as a
separate cause, should be deemed part of the prayer for damages.”).
22
G.
NYS Agriculture & Markets Law Claims
Finally, Defendants assert that Counts V and VI should be dismissed because
Defendants’ manufacture and sale of its canned tuna fish does not violate any provision of the
New York Agriculture and Markets (“A & M”) Law. (Defs.’ Mem. 24.) Plaintiff, however,
contends that Defendants’ product was ‘adulterated’ and ‘misbranded’ in violation of Sections
199, 200, and 201 of this Statute. (Pl.’s Mem. 23.)
Section 199-a(1) of the A & M Law provides that “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, . . . any article of food which is
adulterated or misbranded within the meaning of this article.” Section 200 of this law defines
adulterated food and provides that food shall be deemed adulterated:
1. If it bears or contains any poisonous or deleterious substance which may render
it injurious to health; but in case the substance is not an added substance such
food shall not be considered adulterated under this subdivision if the quantity of
such substance in such food does not ordinarily render it injurious to health.
2. If it bears or contains any added poisonous or added deleterious substance other
than one which is (a) a pesticide chemical in or on a raw agricultural commodity,
(b) a food additive, or (c) a color additive, which is unsafe within the meaning of
section two hundred two, or if it is a raw agricultural commodity and it bears or
contains a pesticide chemical which is unsafe within the meaning of section four
hundred eight-a of the federal food, drug and cosmetic act, as amended, or if is, or
it bears or contains, any food additive which is unsafe within the meaning of
section four hundred nine of such federal act, as amended; provided, that where a
pesticide chemical has been in or on a raw agricultural commodity in conformity
with an exemption granted or a tolerance prescribed under section four hundred
eight of such federal act, and such raw agricultural commodity has been subjected
to processing such as canning, cooking, freezing, dehydrating or milling, the
residue of such pesticide chemical remaining in or on such processed food shall
not be deemed unsafe if such residue in or on the raw agricultural commodity has
been removed to the extent possible in good manufacturing practice, and the
concentration of such residue in the processed food, when ready to eat, is not
greater than the tolerance prescribed for the raw agricultural commodity.
23
3. If it consists in whole or in part of a diseased, contaminated, filthy, putrid or
decomposed substance, or if it is otherwise unfit for food.
....
5. If it is the product of a diseased animal or of an animal which has died
otherwise than by slaughter, or that has been fed upon the uncooked offal from a
slaughterhouse.
....
9. If damage or inferiority has been concealed in any manner.
....
11. If it falls below the standard of purity, quality or strength which it purports or
is represented to possess.
N.Y. Agric. & Mkts. Law § 200.
Plaintiff asserts in Count V that “by manufacturing, selling, processing, marketing and
packaging canned tuna fish adulterated with poisonously high levels of mercury, the defendants
violated [A & M] Law Sections 199-a(1), 200(1), 200(2), 200(3), 200(5), 200(9) and 200(11).”
(Am. Compl. ¶ 52.) In Langiulli, 604 N.Y.S.2d at 1022, the court held that the apparent thrust
and intent of Sections 199 and 200 of the A & M Law “is to prohibit the sale of impure or
contaminated products, and [they] are not in fact aimed at the presence of foreign objects in the
product.” Thus, the court determined, a foreign substance such as a tuna bone in a can of tuna
fish does not “adulterate” the tuna fish for purposes of this statute. Id. Based on this logic,
Defendants assert that because mercury is natural to canned tuna, and because unlike with “a
lingering fish bone, which with extraordinary care might have been removed, there is simply no
way to remove mercury from tuna,” there is an even more compelling argument that Defendants’
canned tuna should not be deemed “adulterated” by virtue of the mercury found therein. (Defs.’
Mem. 24–25.) Aside from the fact that the impossibility of removing mercury from tuna is not
24
part of the record before me, I do not find Defendants’ argument persuasive. If mercury
naturally occurs in canned tuna and cannot be removed, it is less “foreign” than a bone in a
purportedly boneless product would be. In fact, it appears to this Court that mercury could be
the sort of substance from which the legislators wanted to protect consumers, because the statute
specifically contemplates that substances which are “not [] added substance[s]”—which would
include naturally occurring substances—could in some circumstances be an adulterant: Section
200(1) of the A & M Law provides that foods that contain poisonous or deleterious substances
that are not added substances will not be considered adulterated “if the quantity of such
substance in such food does not ordinarily render it injurious to health.” N.Y. Agric. & Mkts.
Law § 200(1). The flip side obviously is that a non-added (naturally occurring) substance can be
an adulterant if it ordinarily renders the food injurious to health. Here, Plaintiff has alleged that
Defendants’ tuna fish, in the quantity Plaintiff consumed (which I have determined was not
unreasonable as a matter of law), does, in fact, ordinarily render it injurious to health due to the
high concentration of mercury therein (although a jury might also find that Plaintiff’s
consumption was not “ordinary”). Thus, taking Defendants’ contention that mercury is natural
to tuna fish (and thus not an added substance) as true, Plaintiff has at this stage adequately
pleaded a violation of Section 200(1) of the New York State Agriculture and Markets Law. It
may be that as the facts are developed, the Court on summary judgment or a jury could conclude
that the mercury in tuna does not “ordinarily” render it harmful, but such a conclusion cannot be
drawn from the Amended Complaint. Plaintiff has similarly sufficiently pleaded a violation of
Section 200(11) because Defendants’ tuna fish arguably fell below the standard of quality—
namely, that it was a heart-healthy product—that Defendants represented it possessed.
Defendants’ motion to dismiss these claims is therefore denied.
25
Plaintiff’s claims under Sections 200(2), 200(3), 200(5), and 200(9), cannot, however,
survive. First, with respect to Section 200(2), despite Plaintiff’s assertion to the contrary, there is
no indication that Defendants’ canned tuna contained “any added poisonous or added deleterious
substance.” The Amended Complaint does not allege any addition and is consistent with
Defendants’ claim that the mercury was already part of the fish before it was canned or sold. See
People ex rel. Brown, 171 Cal. App. 4th at 1573 (affirming trial court’s determination that
preponderance of the evidence supports finding that methylmercury in tuna is naturally
occurring). Next, with respect to Section 200(3), while Defendants’ canned tuna contained
mercury, it was not “contaminated” by such mercury because contamination under this section
ordinarily refers to an external substance that adulterates the food product, see, e.g., J & R
Salvage & Storage Co. v. Barber, 410 N.Y.S.2d 413, 414 (3d Dep’t 1978) (finding bags of
coffee beans that were “heavily covered with mouse and rat excreta pellets” were
“contaminated” under Section 200(3) of the A & M Law), and Plaintiff has not alleged that the
mercury was external or added. Additionally, Defendants’ tuna fish was not inherently “unfit for
food;” it was perhaps merely unfit for consumption when eaten in certain quantities. Thus
Plaintiff’s claim under Section 200(3) cannot survive. Plaintiff’s claim under Section 200(5)
also cannot survive a motion to dismiss because Plaintiff has not alleged that Defendants’ canned
tuna is the product of a “diseased” animal, nor is there any reason to assume that the tuna was
“diseased” by virtue of its high concentration of mercury. Finally, Plaintiff’s claim under section
200(9) does not survive because the Complaint contains no facts suggesting that Defendants’
canned tuna fish was inferior to ordinary canned tuna fish—indeed, it is apparently no different
than any other canned tuna fish on the market—and Plaintiff does not allege that Defendants
took any affirmative action to conceal the existence of the mercury. Thus, Defendants’ motion
26
to dismiss Plaintiff’s claims under Sections 200(2), 200(3), 200(5) and 200(9) of the New York
State Agriculture and Markets Law (Count V) is granted.
Although Defendants assert in their motion papers that both Counts V and VI of
Plaintiff’s Complaint, alleging violations of New York State Agriculture and Markets Law, must
be dismissed because they fail to state a claim, Defendants’ arguments in their motion papers are
limited to Plaintiff’s claims in Count V under Section 200, with respect to adulterated food, and
they do not address the merits of Plaintiff’s claims in Count VI under Section 201, with respect
to misbranding. Likewise, Defendants have not included any discussion of Count VII of
Plaintiff’s Amended Complaint, which alleges that “defendants engaged in deceptive acts and
practices in violation of New York State General Business Law Section 349(a).” (Am. Compl. ¶
58.) Thus Counts VI and VII—which in any event appear to the Court, at least at first blush, to
state a claim—will stand.
IV.
Leave To Amend
Leave to amend a complaint should be freely given when justice so requires. Fed. R. Civ.
P. 15(a)(2). It is within the sound discretion of the district court to grant or deny leave to amend.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). “Leave to amend,
though liberally granted, may properly be denied for: ‘undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility
of amendment, etc.’” Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman
v. Davis, 371 U.S. 178, 182 (1962)). Amendment is futile when the claim as amended cannot
“withstand a motion to dismiss pursuant to Rule 12(b)(6),” and “[i]n deciding whether an
amendment is futile, the court uses the same standard as those governing the adequacy of a filed
27
pleading.” MacEntee v. IBM, No. 08-CV-7491, 2011 WL 812395, at *8 (S.D.N.Y. Mar. 3,
2011) (internal quotation marks omitted). Where the problem with a claim “is substantive[,]
better pleading will not cure it,” and “[r]epleading would thus be futile.” Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000). Leave to amend may also be denied where the party fails to
identify with sufficient specificity the facts that would save his Complaint were he granted leave
to amend. See Arnold v. KPMG LLP, 334 F. App’x 349, 352–53 (2d Cir. 2009), cert. denied,
130 S. Ct. 503 (2009).
A pre-motion conference was held on August 17, 2010, at which time Plaintiff was
granted leave to amend his Complaint and was advised by the Court that he “ought to put
everything in there that [he’s] got because[ i]f [Defendants’] motion is well taken, [he]’ll already
have had [his] chance to amend.” (Hr’g Tr. 5, Aug. 17, 2010.) Plaintiff filed his Amended
Complaint on August 31, 2010. (Doc. 9.) He has not requested leave to file a Second Amended
Complaint, demonstrated how further amendment would cure the deficiencies that remain in his
pleadings, as identified in Defendants’ papers, or submitted to the Court a Proposed Second
Amended Complaint addressing such deficiencies. Accordingly, I decline to grant leave to
amend sua sponte. See, e.g., Walton v. Morgan Stanley & Co., 623 F.2d 796, 799 n.7 (2d Cir.
1980) (“[A]ppellants never sought leave to amend their complaint either in the district court or as
an alternative form of relief in this court after [appellee] raised the issue of the sufficiency of
appellants’ complaint. Accordingly, we see no reason to grant such leave sua sponte.”); In re
Eaton Vance Mut. Funds Fee Litig., 380 F. Supp. 2d 222, 242 (S.D.N.Y. 2005) (denying leave to
amend because “the plaintiffs have had two opportunities to cure the defects in their complaints,
including a procedure through which the plaintiffs were provided notice of defects in the
Consolidated Amended Complaint by the defendants and given a chance to amend their
28
Consolidated Amended Complaint," and "plaintiffs have not submitted a proposed amended
complaint that would cure these pleading defects"), af/'d sub nom. BellikojJv. Eaton Vance
Corp., 481 F.3d 110, 118 (2d Cir. 2007) (plaintiffs "were not entitled to an advisory opinion
from the Court informing them of the deficiencies in the complaint and then an opportunity to
cure those deficiencies") (internal quotation marks omitted); see also Ruotolo, 514 F.3d at 191
(affirming denial of leave to amend "given the previous opportunities to amend").
V.
Conclusion
For the reasons stated above, Defendants' Motion for Judicial Notice is GRANTED, and
Defendants' Motion to Dismiss is GRANTED as to Counts III and IV, as to the allegations for
breach of implied warranty and negligent failure to warn against Stop & Shop within Count II,
and as to the allegations within Count Vas to subsections 200(2), 200(3), 200(5), and 200(9),
and DENIED in all other respects. The Clerk of the Court is respectfully directed to terminate
the pending motions, (Docs. ) 9,22). The remaining parties are directed to appear for a status
conference on October 14, 2011, at 11:00 a.m.
SO ORDERED.
~O,
Dated: September
2011
White Plains, New York
29
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