LITIGATION RISKS ASSOCIATED WITH
FOODS THAT POSE A CHOKING HAZARD
MWFPA Food Science & Technology Committee
July 25, 2012
Paul E. Benson
(414) 225-2757
pebenson@michaelbest.com
Michael Best & Friedrich LLP
100 East Wisconsin Avenue, Suite 3300
Milwaukee, WI 53202
Choking Hazards – The Litigation Perspective
 Overview of Litigation Risk
 Background on Choking Risks
 Legal Theories Plaintiffs May Pursue
 Strict Liability
 Implied Warranty
 Negligence
 Scenarios
 Failure to Warn (“I had no idea I could choke on that”)
 “Foreign” Object
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Litigation Risk Overview
 When severe injuries or death
occur, parties frequently look for
a deep pocket to sue.
 The very fact that food is
intended to be ingested creates
a choking risk.
 Being named in a lawsuit brings
costs:
 Litigation is time consuming and
expensive.
 The litigation can create a stigma.
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Background on Choking Risks
 American Academy of Pediatrics – Policy Statement
(Feb. 2010)
 Choking is a leading cause of child mortality
 Child development (particularly < 3 years old) is a factor
 Smaller diameter airway
 Undeveloped molars (for grinding food) and/or chewing
habits
 Food shape and consistency are factors
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Background on Choking Risks (cont.)
 Food Shape/Consistency
Factors (AAP Statement)
 Cylindrical
 Airway sized
 Compressible (can conform
to the airway shape and
completely block the
passage)
 Examples of “High-Risk”
Foods
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Hot dogs
Sausages
Hard candy
Peanuts/nuts
Seeds
Whole grapes
Raw Carrots
Apples
Popcorn
Chunks of peanut butter
Marshmallows
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Legal Theory – Strict Liability
 Strict liability can be imposed for food products that are
sold in a defective condition and unreasonably
dangerous to the user or consumer.
 Restatement (Second) of Torts - § 402A
 A defective condition is one not contemplated by the ultimate
consumer
 Unreasonably dangerous means dangerous to an extent not
contemplated by the ordinary consumer who purchases it.
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Legal Theory – Strict Liability (cont.)
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The presence of unreasonably dangerous foreign substances can
result in strict liability.
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Courts have had a harder time dealing with dangerous natural
substances
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E.g., bits of glass in a food item
Bones in meat products (chicken pie, enchilada, ‘boneless’ turkey breast)
Pecan shells in caramel/pecan candies
Grain of corn in box of corn flakes
At one time, strict liability claims could not survive if based on
natural substances – but that distinction has been eroding in favor
of a “reasonable expectation” test.
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Legal Theory – Implied Warranty
 A strict liability analysis is very similar to the analysis
that the food product is so defective that the producer
violated the implied warranty of merchantability.
 Such claims focus on the reasonable expectations of
the consumer and relate to a failure to warn of potential
dangers.
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Failure To Warn
 Types of failure to warn claims
 Inherent danger to intended consumers (young
children)
 Danger not obvious (marshmallows)
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Elements of a Failure to Warn Claim
 A failure to warn claim is a narrower claim than one
that alleges a defective product. Wyeth v. Levine, 555
U.S. 555, 565 (2009).
 Such claims are based on the premise that “the failure
to warn of an injury-causing risk associated with the
use of a technically pure and fit product can render the
product unreasonably dangerous.” Emery v. Federated
Foods, 863 P.2d 426, 431 (Mont. 1993).
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Failure to Warn – Safeguards
 American Academy of Pediatrics Policy Statement
Recommendation
 FDA should require warning labels “on foods that pose a high
choking risk to children.”
 Notes that Sweden introduced age labeling on foods for infants
and young children since 1979 and warning labels on peanuts
since 1981.
 Possible Strategies
 Evaluate foods against the characteristics that define “high risk”
foods – cylindrical, airway-sized, compressible
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Are Warning Labels Effective?
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[R]equiring a manufacturer to warn against obvious dangers could
greatly increase the number of warnings accompanying certain
products. If a manufacturer must warn against even obvious
dangers, “the list of foolish practices warned against would be so
long, it would fill a volume.” Requiring too many warnings trivializes
and undermines the entire purpose of the rule, drowning out
cautions against latent dangers of which a user might not otherwise
be aware. Such a requirement would neutralize the effectiveness of
warnings as an inexpensive way to allow consumers to adjust their
behavior based on knowledge of a product’s inherent dangers.
Liriano v. Hobart Corp., 700 N.E.2d 303, 308 (N.Y. 1998), quoting
Kerr v. Koemm, 557 F. Supp. 283, 288 (S.D.N.Y. 1983).
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Are Warning Labels Effective? (cont.)
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Are Warning Labels Effective? (cont.)
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Legal Theory - Negligence
 The “catch all” claim – can survive even in the absence
of a viable strict liability or implied warranty claim
 Consider the “natural substance” issue
 Natural feature of the substance may eliminate strict liability
 Court could conclude that the food processor was nevertheless
negligent for failing to look for and eliminate the natural substance
 Four Elements to Establish Negligence:
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Duty of Care
Breach of that Duty
Proximate Cause of the Injury
Damages
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Legal Theory – Negligence (cont.)
 Industry Standards can Establish the Duty of Care
 If/when labeling becomes more standard, the failure to provide
a warning label could be found to be substandard.
 Increased Knowledge = Greater Duty to the Consumer
 A greater understanding of the physics and physiology of child
choking hazards can heighten the standard.
 Note that one of the reasons courts began abandoning the
foreign-natural distinction in strict liability cases was that
technological advances made it much easier to identify and
remove naturally occurring choking hazards.
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Possible Action Steps
 Evaluate food products against the high-risk factors
 Size, shape and consistency
 Document steps taken to minimize inherent choking
risks
 Example: Baby carrots – can be processed at a size that is
large enough to induce chewing/cutting
 Example: Grapes – likely not much that can be done from a
processing standpoint
 Consider warning labels
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Questions?
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