Human Injury from a Food Product
TASA ID: 327
A Litigation Case:
I was requested to perform the research and discovery on the following case.
Background:
A law firm contacted me and explained an incident concerning a woman who was opening a large institutional can of jalapenos that were packed in a vinegar liquid. She proceeded to open the No. 10 food can with a heavy duty restaurant can opener, and after removing the lid, began to pour the liquid containing the jalapenos into another container. While transferring the liquid slowly and carefully, the liquid splashed into both of her eyes. Some of the restaurant personnel came over to her and immediately rinsed her eyes with water and continued rinsing until she was taken to the emergency room of a local hospital. She was unable to see clearly while in the hospital, and this lasted for an extended period of time.
The jalapeno product went through rigid processing, canning, and precise quality control measures and procedures and was then distributed by XYZ Corporation. The corporation was a very large food processing company with a large, diverse line of food products for human use and had been in business for many years.
The label on the can accurately identified the product, the exact weight of the product, and the name of the company packaging and distributing the product in the marketplace. Even the graphics on the label were sharp and of high quality design. The primary problem that led to this unfortunate incident, in my opinion, was that there was absolutely no information on the label that presented important warnings regarding the uses of the product: the jalapeno juice is extremely toxic to the human eye and can be a harmful irritant causing potentially permanent damage to eye tissue. The food company maintains analytical laboratories and product development departments and either did not have the proper research-based knowledge or the necessary literature that would identify the toxicity of this packaged product to a food handler coming into contact with the product.
Nothing was stated on the label about requirements for safety goggles to protect the eyes and to prevent injury when opening an institutional can of such a product. It is my opinion that a simple warning statement (in bold letters) regarding the use of safety goggles to protect the eyes when handling this product should have been put on the label. The plaintiff was not informed of the danger, nor did she know that the product was an irritant to eye tissue.
The Petition:
The petition claimed the following points:
1. The liquid used to pack the jalapenos (vinegar) was of high enough acidity to cause serious injury to the plaintiff's eyes.
2. The conjunctivas and corneas of both eyes were directly affected.
3. The container should have been more carefully designed to prevent any liquid from coming into contact with the food handler when the can was opened and the contents expelled from the can.
4. There was no warning on the label as to the potential for injury from the liquid holding the jalapenos in suspension.
5. Because there was no warning to the consumer, the plaintiff received severe and permanent damage to both eyes.
6. The plaintiff incurred significant medical expenses for treatment of the injuries resulting from the incident.
7. The plaintiff must now use artificial tears and various ocular lubricants in her eyes to maintain properly functioning eyesight, and she may have to continue these aids for the rest of her life.
8. Plaintiff has continued to suffer severe pain from the burns. The pain is in conjunction with irritation to both eyes and requires almost continual pain medication.
9. Plaintiff cannot enjoy many activities that she once indulged in due to pain and irritation, which continually restrict her activities.
10. The plaintiff has been unable to sustain steady employment and has been saddled with loss of income, which will probably continue into the future.
Technical Background:
The ingredient CAPSAICIN is the active element in the hot peppers and in spicy foods generally found in the tropical regions of the world. The various chemical properties of CAPSAICIN have been extensively researched, and it has been found to be weakly acidic. The unusual pungency of red peppers is the contributing factor for their widespread use as a condiment in highly spiced dishes, typically chili, Tabasco sauces, and curries.
The pungency of the product has an irritating effect upon nasal membranes, leading to sneezing and deep coughing. There is also a burning sensation that results when CAPSICIN comes in contact with skin. When a food product containing CAPSAICIN is swallowed, there is a decided feeling of warmth. An increase in the percent of CAPSAICIN in the food product can easily lead to severe pain and burning, which may result as a gastrointestinal disorder-possibly requiring medical attention.
CAPSAICIN research has shown that corneal lesions were noted in rats treated with various formulations. Experiments with the cornea have demonstrated the long-lasting effects of desensitization influenced by local and systemic CAPSAICIN therapy. Neonatal mice have been subjected to subcutaneous injection of CAPSAICIN, resulting in corneal lesions to their eyes. The application of CAPSAICIN to neonatal rats has been shown to cause a chronic keratitis (inflammation of the cornea) condition. One explanation proposed was that these observed changes might be due to increased vulnerability to direct injury resulting from reduced corneal sensitivity.
The defendant's motion for a partial summary judgment was called for, then heard, and then submitted to the court. The court considered all the pleadings, agreements presented, and a list of all authorities, and then ruled that "the motion is denied."
Labeling of Hazardous Substances:
A hazardous product in a package is considered misbranded if the label does not state certain facts that would prevent injury to the ultimate consumer. All statements on the label that introduce warnings and other means of protection must be arranged on the label so that these safety topics can be easily read and fully understood by the consumer. An "800" number must be stated on the label in order to obtain further information from the manufacturer when any hazardous ingredients are used in the formulation that may cause injury. Although this was a food product, the presence of CAPSAICIN as one of the key ingredients in jalapenos makes that food product hazardous through contact with human tissue, especially if the liquid gets into one's eyes.
The FHSA (Federal Hazardous Substance Act) defines substances that are hazardous and gives the government the authority to prevent certain products from reaching the marketplace. It also requires that manufacturers appropriately label hazardous substances by cautioning the user to use proper care in handling the specific product.
Conclusions:
Any person that handled this product in any way-opening the can and then pouring the contents into a food mixture for preparation, would not know that the product could cause serious injury to the eyes, since there was no statement on the label advising the consumer to use extra caution when handling this particular product. The average person would merely assume that the product was a food product, that it was safe to handle, and could not possibly cause any type of injury.
A No. 10 institutional food can is a difficult container to pour from-considering one has to contend with solids and liquids that tend to splash in many directions. The large opening of this particular can presents some difficulty in pouring the contents and in removing the product without necessarily spilling the contents, causing splash-back of the liquid. There is no handle attachment for this type of can, which could have helped in safely removing the can's contents.
I was deposed twice on this case, which was headed for trial, but a settlement was achieved by the plaintiff and defendant.
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