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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Veggie Booty, you must be kidding?

Several weeks ago we filed a Complaint on behalf of little Sydney and Cole Scheels who became ill with culture-positive Salmonella and were tied specifically to the Veggie Booty Salmonella outbreak.  A few days ago we received the defendant Robert’s American Gourmet Food Inc.’s response (it’s Answer) to poisoning my clients (and presumably all the other customers sickened).  It’s Answer was in fact a blanket denial of everything (much different than the public apologies).  Most interesting were the “Affirmative Defenses.”  Some of the more amusing are here:

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

If, in fact, plaintiffs sustained injuries or damages as alleged in the Verified Complaint, which damages and injuries are hereby expressly denied, said injuries and damages occurred as a result of the plaintiffs’ own culpable conduct.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

If, in fact, plaintiffs sustained damages as alleged in the Verified Complaint, such damages were caused, in whole or in part, by the comparative negligence of the plaintiffs and such damages, which are hereby denied, should be diminished and reduced in the proportion to which the comparative negligence attributable to the plaintiffs bear up on the culpability, if any, of all parties.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE

That in the event that any judgment or verdict is rendered in favor of the plaintiffs, this answering defendant is entitled to have such judgment or verdict reduced by the amount of any collateral payments made to the plaintiffs for expenses and by the amount of all such payments plaintiffs will receive in the future.

AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE

Plaintiffs’ recovery should be barred or reduced by virtue of the adult plaintiffs’ having knowingly, voluntarily and unreasonably assumed the risk of physical injury to the infant-plaintiff by not seeking immediate and/or proper medical attention.

AS AND FOR A NINTH AFFIRMATIVE DEFENSE

At all times relevant herein, this defendant exercised reasonable care, acted in accordance with or exceeded all applicable Municipal, City, State and Federal statutory, regulatory and common law requirements, regulations, codes and standards.

AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE

The incident, the injuries, and the damages complained of were caused by the unauthorized, unintended, improper and/or negligent use or abuse of the product and plaintiffs’ failure to exercise reasonable and ordinary care, caution or vigilance.

AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE

Defendants made no warranties to plaintiffs.

AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE

To the extent warranties apply, defendant breached no warranties.

AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE

To the extent the warranties apply, the incident and all injuries and damages complained of occurred after all applicable warranties expired.

AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE

The product complained of was designed and manufactured in compliance with all applicable design and manufacturing specifications.

AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE

Plaintiffs’ damages were the result of a preexisting condition and are unrelated to any conduct of defendants.

AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE

Plaintiffs’ alleged damages are the result of idiosyncratic conditions and are unrelated to any conduct of this answering defendant.

AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE

Plaintiffs’ knowingly and voluntarily assumed all risks associated with the activities in which they were engaged.

AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE

Plaintiffs’ failed to mitigate their damages.

AS FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE

Plaintiffs’ claims are barred by the applicable doctrines of Laches, unclean hands, waiver and estoppel.

AS FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE

Plaintiffs’ injuries, symptoms or problems, if any, are the result of genetic, environmental and/or sociological factors over which defendant had no control and had no duty to control.

AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE

The product was substantially altered, modified and/or changed, after it left the control of the defendants.

Sometimes a Corporation and its lawyers have no shame at all.