BUSINESS LAW

The Tuna Case:

Lars Paulsen consumed approximately 10 six-ounce cans of tuna fish per week from approximately January 2008 to October 2010. Canned tuna was Paulsens main source of protein during that time period. The tuna fish was canned by Defendant Seaside Foods, LLC (Seaside). Paulsen purchased this tuna, which was frequently on sale, from Easyshop Supermarket Company (Easyshop). During this time period, Seaside promoted its canned tuna fish as an excellent and safe source of high quality protein, vitamins, minerals and omega3 fatty acids, as well as being low in saturated fats and carbohydrates, and promoted its product as being heart healthy. The Seaside tuna fish did not provide any warning that it contained mercury, an odorless, colorless, tasteless, poisonous, heavy metal.

At some point between January 2008 and October 2010, Paulsen 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. Paulsen sought medical attention and underwent numerous tests to understand the cause of his symptoms, but none of these tests provided an answer. On April 14, 2008, Paulsen went to the White Plains Hospital Emergency Room because he believed (incorrectly) that he was having a heart attack.

On or about October 1, 2010, Paulsen's primary care practitioner ordered a heavy metals blood test, which showed that there was an elevated level of mercury in Paulsen's blood. Specifically, Paulsen's blood mercury level was 23 mcg/L, as opposed to less than 10 mcg/L, which is normal. On the same date, the New York State Department of Health contacted Paulsen 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. Paulsen stopped eating tuna fish, and a blood test on November 4, 2010 revealed that his mercury levels had returned to normal. Paulsen no longer suffered the heart attack-like symptoms previously described, but he says that he remains worried today about what effects the mercury has had on his health.

Paulsen has sued Seaside and Easyshop for product liability, asserting claims of negligence and strict liability. The complaint alleges that Seasides tuna fish was unreasonably dangerous because it contained poisonously high levels of mercury and that Seaside and Easyshop are therefore strictly liable to Paulsen. The complaint also alleges strict liability based on Seasides failure to warn of the tunas potential latent danger of poisonously high levels of mercury and that consumption of tuna fish in certain quantities was unsafe and dangerous because of its mercury content.

Mercury is present in trace amounts in almost all fish. Mercury is a naturally occurring element and can also be released into the air from industrial pollution. Mercury falls from the air and accumulates in oceans and streams. Bacteria in the water cause chemical changes that transform mercury into methylmercury, which fish absorb and which cannot be removed from the fish.

FDA regulations specify the maximum amount of mercury that may be present in fish and shellfish, and there is no claim or evidence that Seasides tuna exceeded these amounts. However, the regulations do not require warnings regarding mercury on tuna or other seafood

The elements of a claim of product liability based on strict liability are:

1. The product must be in defective condition when sold.

2. The defendant must be normally engaged in the business of selling or distributing the product.

3. The product must be unreasonably dangerous to the user or consumer because of its defective condition.

4. The plaintiff must incur physical harm to self or property by use or consumption of the product.

5. The defective condition must be the proximate cause of the injury or damage.

6. The goods must not have been substantially changed from the time the product was sold to the time the injury was sustained.

Consider the following questions:

1. In defending against the strict liability claims, what arguments can Seaside make about the elements of injury and proximate cause (elements 4 and 5 above)?

2. In defending against the strict liability claims, what arguments can Seaside make about whether the tuna was defective or unreasonably dangerous (elements 1 and 3 above) because of the mercury content?

3. In defending against the strict liability claims, what arguments can Seaside make about whether the tuna was defective or unreasonably dangerous (elements 1 and 3 above) because of the lack of a warning about mercury?

4. If the elements above are proved, can Easyshop be held liable on a strict product liability claim even though they had no control over the packing or labeling of the tuna?