Porrazzo v. Bumble Bee Foods, LLC
822 F. Supp. 2d 406
S.D.N.Y.2011Background
- Plaintiff Porrazzo allegedly consumed 1–2 cans of Bumble Bee tuna daily from January 2006 to October 2008, purchasing it at Stop & Shop.
- Defendants advertised tuna as heart healthy and high in protein, with no warning about mercury content.
- In October 2008, Porrazzo’s blood mercury was elevated; NY DOH advised stopping tuna; levels later returned to normal after cessation.
- Amended Complaint (Aug. 31, 2010) asserts claims for breach of implied warranty of merchantability and fitness, failure to warn under strict liability and negligence, emotional distress, and NY Agriculture & Markets Law and General Business Law violations.
- Defendants moved to dismiss (12(b)(6)) and the court granted in part and denied in part, with leave to amend discussed.
- The court took judicial notice of FDA materials regarding mercury in fish.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preemption of state claims by federal regulation | State claims are not preempted by FDA regulation. | FDA regulatory scheme preempts state duties and warnings. | Not preempted; Fellner persuasive. |
| Proximate cause and injury causation | Mercury in tuna caused elevated blood mercury and heart-like symptoms. | No diagnosed injury causally linked to tuna consumption. | PLausible injuries and direct causation pleaded; denial of dismissal on proximate cause. |
| Failure to warn and implied warranty against Bumble Bee | Mercury risk not open/obvious; manufacturer failed to warn; warranty not fit for ordinary use. | mercury is natural; reasonable consumer expectations and safety standards preclude liability. | Failure-to-warn claims against Bumble Bee and implied warranty viability sustained; detailed nuances reserved for trial. |
| Failure to warn and implied warranty against Stop & Shop | Retailer liable for failure to warn and breach of warranty as seller in the distribution chain. | Retailer not liable for defects not discoverable by ordinary inspection. | Strict liability failure to warn against Stop & Shop sustained; negligent failure to warn dismissed; implied warranty claim dismissed. |
| NYS Agriculture & Markets Law claims | Mercury-laden tuna violated sections 199–201 (adulterated/misbranded). | Mercury is natural; certain sections not met; some claims lack plausibility. | Claims under 200(2)(3)(5)(9) dismissed; claims under 200(1) and 200(11) survive; 201 claim and deceptive practices claim largely stood. |
Key Cases Cited
- Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237 (3d Cir. 2008) (FDA preemption not shown; FDA silence on warnings allows state claims)
- Liriano v. Hobart Corp., 92 N.Y.2d 232 (N.Y. 1998) (defective product; breach of implied warranty; causation standards)
- Denny v. Ford Motor Co., 87 N.Y.2d 248 (N.Y. 1995) (implied warranty focus on reasonable expectations and safety)
- O'Sullivan v. Duane Reade, Inc., 27 Misc.3d 1215(A) (N.Y. Sup. Ct. 2010) (breach of implied warranty; safe/fit for ordinary purpose standard)
- Langiulli v. Bumble Bee Seafood, Inc., 604 N.Y.S.2d 1020 (N.Y. Sup. Ct. 1993) (merchandise fit; consumer expectations; adulteration/quality standards)