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DTCI: Make No Bones About It

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karns By Timothy L. Karns

While there is no shortage of challenges facing the food and beverage industry, one of the most prevalent issues today is product liability claims resulting from foreign objects inadvertently incorporated into finished products. Despite the use of numerous safeguards in a production facility, food manufacturers can never eliminate the possibility that a physical hazard will be introduced during the manufacturing process. This is especially true where the hazard is an object that is intrinsic to the product, such as bone or gristle.

Indiana’s Product Liability Act, Indiana Code §§ 34-20-1-1 through 34-20-9-1, governs all actions brought by a user or consumer against a manufacturer or seller for physical harm caused by a product regardless of the theory of liability. See Ind. Code § 34-20-1-1. The Act provides, in pertinent part:

a person who sells, leases, or otherwise puts into the stream of commerce any product in a defective condition unreasonably dangerous to any user or consumer … is subject to liability for physical harm caused by that product to the user or consumer … . Ind. Code § 34-20-2-1.

Thus, in order to prevail in a product liability action, “the plaintiff must prove that the product is in a defective condition which renders it unreasonably dangerous.” Welch v. Scripto-Tokai Corp., 651 N.E.2d 810, 814 (Ind. Ct. App. 1995).

“The requirement that the product be in a defective condition focuses on the product itself while the requirement that the product be unreasonably dangerous focuses on the reasonable expectations of the consumer.” Id. at 814 (emphasis added). Specifically, a product is in a defective condition if at the time it is conveyed by the seller to another party, it is in a condition:

(1) not contemplated by reasonable persons among those considered expected users or consumers of the product; and

(2) that will be unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling or consumption. Ind. Code § 34-20-4-1.

A product is also in a defective condition if the seller fails to give reasonable warnings or instructions to the consumer, thereby leaving the product in an unreasonably dangerous condition. See Ind. Code § 34-20-4-2; Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d 155, 162 (Ind. Ct. App. 1997), (“The Act imposes liability upon a manufacturer who puts into the stream of commerce any product without a reasonably adequate warning thereby leaving it in an unreasonably dangerous condition to any user, if such warning could be given in the exercise of reasonable diligence.”). However, a product is unreasonably dangerous only if its use “exposes the user or consumer to a risk of physical harm to an extent beyond that contemplated by the ordinary consumer who purchases it with the ordinary knowledge about the product’s characteristics common to the community of consumers.” Ind. Code § 34-6-2-146 (emphasis added).

Under this standard, when the object that causes an injury is a foreign material, such as a screw, a piece of metal or a stone, a food manufacturer will be hard pressed to avoid liability. In that situation, an ordinary consumer with ordinary knowledge of the product would not reasonably expect such an item to be present in the food. However, when the injury-causing material is an item that is intrinsic to a finished product, a food manufacturer may be able to escape liability by arguing that the injured consumer should have anticipated and guarded against the presence of the object in the food.

Although some courts rely on a distinction between foreign and natural characteristics of a food product to determine liability, a majority of courts have adopted the “reasonable expectations test” to determine whether an ingredient that caused the harm is an unanticipated adulteration or is an inherent aspect of the product. See, e.g., Morrison’s Cafeteria of Montgomery, Inc. v. Haddox, 431 So. 2d 975, 978 (Ala. 1983) (applying the reasonable expectations test the court found, as a matter of law, that a bone in a fish fillet did not disappoint such expectations); Clime v. Dewey Beach Enterprises, 831 F. Supp. 341, (D. Del. 1993), (holding, as a matter of law, that a consumer could not reasonably expect to receive a raw clam free of injurious bacteria); Mathews v. Maysville Seafoods Inc., 602 N.E.2d 764, 765-66 (Ohio Ct. App. 1991) (holding that a “consumer must reasonably anticipate and guard against the presence of a fish bone in a fish fillet”). Under the reasonable consumer expectations test, substances that are natural to the preparation of the food served are to be anticipated and, therefore, do not render the food unfit or defective. Mitchell. v. T.G.I. Friday’s, 748 N.E.2d 89 (Ohio Ct. App 2000). Thus, the reasonable consumer expectations test focuses on the final item sold to the consumer and the expectations that are engendered by the type of preparation used in making the dish.

For example, in Mitchell v. T.G.I. Friday’s, the plaintiff was eating a fried clam strip when she bit into a hard substance she believed to be a piece of a clam shell. Id. at 90. The plaintiff experienced immediate pain and later required dental treatment for her injuries. Id. at 90-91. Consequently, the plaintiff filed a product liability action against the restaurant that served the meal and the supplier of the fried clams. Id. at 91. Both defendants filed motions for summary judgment, which the trial court granted. Id.

On appeal, the reviewing court began its analysis by summarizing the reasonable expectation test as “‘the test … for what is “reasonably expected” by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation.’” Mitchell, 748 N.E.2d at 93 (quoting Mathews, 602 N.E.2d at 765). Thus, the Mitchell court concluded that the reasonable expectation test “is related to the foreseeability of harm on the part of the defendant.” Id. (quoting Mathews, 602 N.E.2d at 765). While the court noted that the test “usually presents a question for the jury,” it further stated that it “is clear that in some cases the occurrence of a deleterious substance must be reasonably expected as a matter of law.” Id. at 94. In fact, the court specifically stated that “‘[c]ourts cannot and must not ignore the common experience of life and allow rules to develop that would make sellers of food or other consumer goods insurers of the products they sell.’” Id. (quoting Morrison’s Cafeteria of Montgomery, Inc., 431 So. 2d at 979). Applying the reasonable expectation test to the matter at hand, the court concluded that one who eats clams can reasonably anticipate and guard against eating a piece of shell. See also Allen v. Grafton, 164 N.E.2d 167 (“Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on guard against the presence of such bones.”); Ruvolo v. Homovich, 778 N.E. 2d 661 (Ohio Ct. App. 2002), (holding that a consumer should reasonably anticipate the natural occurrence of chicken bone fragments in a gordita sandwich).

While it has not explicitly been adopted by Indiana’s courts, the reasonable expectations test directly comports with the Act’s definition of an unreasonably dangerous product. Consequently, where there is no dispute that the injury-causing mechanism is an object intrinsic to the finished product, a food manufacturer should explore the consumer’s understanding of the product, its preparation process and its raw ingredients early in the discovery process. A typical consumer will be hard pressed to argue that he was unaware that the animal from which the product or its ingredients were derived originally contained such an object. Accordingly, a food manufacturer may, through the filing of a dispositive motion, be able to convince the trial court that it should apply the reasonable expectations test and find, as a matter of law, the injured consumer should have reasonably anticipated and guarded against the presence of the object that caused their injury.

The reasonable expectations test is not the only defense a food manufacturer has to a product liability claim. Ind. Code § 24-20-5-1 provides that:

In a product liability action, there is a rebuttable presumption that the product that caused the physical harm was not defective and that the manufacturer or seller of the product was not negligent if, before the sale by the manufacturer, the product:

(1) was in conformity with the general recognized state of the art applicable to the safety of the product at the time the product was designed, manufactured, packaged and labeled; or

(2) complied with applicable codes, standards, regulations or specifications established, adopted, promulgated or approved by the United States or by Indiana, or by any agency of the United States or Indiana.

Thus, when the object that causes an injury is an extrinsic object, such as a screw, a piece of metal or a stone, a food manufacturer that adheres to a strict quality control program will have an avenue to try to avoid liability.

To reduce the inclusion of bone and gristle in their finished products, all food manufacturers use numerous preventative measures and safeguards in their facilities. In light of these programs and process controls, an argument can be made that the finished product, even when it contains foreign matter, was in conformity with the generally recognized state of the art applicable to the safety of the product at the time it was designed, manufactured, packaged and labeled. This is particularly true when, on the date the subject product was prepared and packaged, the manufacturer was operating its facility in compliance with the applicable requirements of the United States Department of Agriculture and/or the United States Food and Drug Administration. Thus, a food manufacturer should do everything it can to establish it has both a prerequisite program intended to prevent foreign objects from entering its production line and process control steps that are designed to eradicate any materials that are concealed in the raw materials used to make the finished product.

Although compelling in nature, a product liability claim resulting from a foreign object in a finished product is not an automatic victory for the plaintiff. Caselaw from multiple jurisdictions supports the proposition that a consumer who eats certain dishes ought to anticipate and be on the guard against the presence of certain foreign materials that may be contained in those foods. Furthermore, even if a court were to find that an inclusion of a foreign object in the finished product renders it unreasonably dangerous, the manufacturer may be entitled to use the rebuttable presumption that the product that caused the physical harm was not defective and that the manufacturer or seller of the product was not negligent.•

Mr. Karns is a senior associate in the Indianapolis office of Frost Brown Todd. The opinions expressed in this article are those of the author.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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