New York Injury Talk Blog

An article in May 16's Food and Dining section of the New York Times brought up an issue that interests us greatly: the reliability of the FDA's regulations. As anyone who bought contaminated lettuce, spinach, peanut butter or pet food last year knows, the FDA is not as good at its job as we might like. This quote from Elizabeth Armstrong of Indiana, the mother of two-year-old Ashley, whose kidneys failed after she ate contaminated spinach, is telling:

“You live in the United States of America and this isn’t supposed to happen. There is an assumption that everything is going to be O.K., that someone must have checked this out, but it is not the case.”

Armstrong is absolutely right on both counts. Most Americans assume a product wouldn't be sold if it were dangerous. We make that assumption because we have laws saying manufacturers have a legal duty to offer safe products, and because we have regulatory agencies that are supposed to ensure that products really are safe.

Unfortunately, neither the companies nor the government do their jobs right all the time. The main point of the article seems to be that the FDA is both underfunded and not aggressive enough. Even a representative of an agricultural trade group -- the companies the FDA regulates -- is quoted as saying the agency needs to issue mandatory rules! While we agree, we also know that the ultimate fault lies with manufacturers who negligently or (in the case of the pet food) perhaps even knowingly let unsafe products go to markets, often just to save a few bucks. By the time a regulatory agency catches it, someone may already have been seriously hurt. At that point, your only recourse is a products liability lawsuit. Litigation won't give Ashley Armstrong her healthy kidneys back, but at least it can provide the money her family needs to pay the steep medical bills for the treatments she now must have -- possibly for the rest of her life.

You may not have noticed, but last week, we narrowly avoided a serious blow to consumers’ safety and rights. The Consumer Product Safety Commission, the federal agency that regulates product safety and enforces recalls of unsafe products, has been operating with an acting chairwoman for almost a year. The Bush Administration’s response? Nominating a manufacturing industry lobbyist as the new chair! Congressional Democrats squelched that idea after they found out that the nominee, Michael Baroody, was due for a $150,000 severance package from the National Association of Manufacturers.

Putting a manufacturers’ lobbyist in charge of consumer protection is nearly a textbook example of having the fox guard the henhouse. Even ignoring the obvious conflict of interests created by a six-figure payoff from the manufacturers Baroody would have regulated, his past track record raises serious doubts about whether he would have kept consumers’ best interests in mind. He’s lobbied for softer regulations -- and they’re already quite favorable to industry -- for 17 years.

The CPSC’s Web page says unsafe products cost our economy $700 billion a year. More importantly, they kill and injure thousands of Americans each year; the commission’s study on toy injuries alone shows 202,300 injuries and 20 deaths caused by unsafe toys in 2005. The report doesn’t say whether the toys were properly manufactured and labeled, but we know that 100 percent of those children’s injuries and deaths were preventable. In our own products liability practice, we’ve seen one client who was permanently brain damaged by a defective product; another client, who was only 21, lost the sight in one eye.

We wrote recently in this space that pet owners affected by this spring’s huge pet food contamination scandal should avoid rushing to settle with Menu Foods, because they may get a better deal if they file a product liability lawsuit. Well, it looks like the company is not just offering consumers a bad deal -- it’s also trying to illegally harass them into accepting it, through their insurance adjustor, Crawford & Co. A USA Today article last week said Menu Foods is actually bullying pet owners to try to get them to settle:

At a previous hearing on Friday, May 18, the judge had cautioned Menu and Crawford that they should not contact people who had joined one of the lawsuits against the company. Legally, Menu cannot contact those plaintiffs directly but must go through their lawyers.

But in affidavits presented in court Wednesday, pet owners said they received calls that weekend from Crawford representatives who pressed them to answer questions even after being told the owners had hired lawyers. In some cases, the pet owners also received multiple calls from Crawford's computerized phone banks after telling representatives they were represented by attorneys, according to the affidavits.

"Menu's representatives asked owners to sign releases which waived their right to get advice from a lawyer," said attorney Jay Edelson in an interview.

It gets better. The judge in this case, U.S. District Judge Noel Hillman in New Jersey, has ordered Menu to have no contact at all anymore with affected consumers. He had some pretty harsh words for the company in a transcript of court proceedings last week: "It seems to me that Menu Food is out to do whatever Menu Foods wants to do in a way that could adversely impact the rights of possible members of the class action suit.”

Continue reading "Contaminated Pet Food Manufacturer Shoots Self In Foot" »

Menu Foods, the maker of most of the contaminated pet foods that sparked a huge recall back in March, finally posted claims information on its Web site this week. As you may recall, more than 100 pet foods were found to be contaminated with melamine, a chemical used in fertilizers and plastics, which caused kidney failure in the pets that ate it. Menu Foods' "general information" sheet suggests that many pet owners would rather settle their claims directly with the company rather than participating in one of the many class actions now springing up around the country. But as this news report from a Cincinnati TV station suggests, settling directly with them comes with lots of strings attached (including waiving your right to sue them later). It only makes sense -- Menu Foods is trying to limit its liability for this huge and therefore potentially very expensive disaster. But if we were advising friends considering participating in this settlement, we wouldn't hesitate to suggest that they hire an attorney instead and consider a product liability lawsuit. Lawyers can not only recover more damages than the settlement probably offers, but if everything goes right, they may also be able to correct a gap in the law on pets, allowing them to recover emotional damages as well.

Pet owners affected by the contaminated pet food were probably surprised to discover that the deaths and illnesses of their babies are legally considered "property damage," rather than wrongful deaths. That might mean the plaintiffs in the lawsuits already filed won't be able to claim damages for their emotional loss, though they will be able to claim financial damages, such as vet bills and burial costs. But in this article from the Philadelphia Inquirer, it's suggested that these cases might set a new precedent that brings the legal world in line with the well-acknowledged reality that people love their pets. The article is a few weeks old, but it's a good armchair analysis of the pet food lawsuits' chance at success and what some of the implications of that success could be. It may all come down simply to whether the judges who hear these suits are sympathetic to the idea that pets have emotional value. We hope they are.