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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Dole, Natural Selection Foods – You must be kidding!

You have to love the creativity of counsel for Dole and Natural Selection Foods (NSF) in answering the complaint of a little boy frm Utah poisoned (one of at least 204 in twenty-six states – there were four deaths) by spinach NSF produced for Dole.  I have picked out some of the more absurd defenses raised:

THIRD AFFIRMATIVE DEFENSE
The product complained of was in a reasonable safe condition when it left the possession and control of Defendant.

FOURTH AFFIRMATIVE DEFENSE
At the time of manufacture of the product complained of there was no alternative production practice available that would not have compromised the product’s usefulness.

FIFTH AFFIRMATIVE DEFENSE
The injury complained of is the result of an inherent characteristic of packaged and processed food items and cannot be eliminated without compromising its usefulness thus precluding liability.

ELEVENTH AFFIRMATIVE DEFENSE
Defendants made no warranties, expressed or implied, that were relied upon by Plaintiffs.

THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiffs claims against Defendants are barred or must be reduced to the extent Plaintiffs failed to mitigate any alleged damages or by the doctrine of avoidable consequences.

FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiffs have unreasonably delayed the commencement of this action to the prejudice of Answering Defendants. Therefore, the complaint, and each and every cause of action alleged therein is barred, in whole or in part, by the doctrine of laches.

EIGHTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ complaint is barred by the doctrines of contributory negligence and/or assumption of risk.

NINETEENTH AFFIRMATIVE DEFENSE
Defendants owed no duty to Plaintiffs.

TWENTY-THIRD AFFIRMATIVE DEFENSE
Plaintiffs’ alleged damages were the result of an idiosyncratic reaction which Defendants could not reasonably foresee.

  • Jay

    Looks like they are willing to say absolutely anything to try and get out of this.