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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

We Need to Do Something About Frivolous Pot Pie Defenses

For those with short memories, between January 1, 2007 and October 29, 2007, at least 272 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint have been collected from ill persons in 35 states. Ill persons whose Salmonella strain has this genetic fingerprint have been reported from Arizona (1 person), Arkansas (4), California (18), Colorado (9), Connecticut (7), Delaware (5), Florida (2), Georgia (2), Idaho (11), Illinois (7), Indiana (3), Iowa (1), Kansas (4), Kentucky (9), Massachusetts (7), Maryland (7), Maine (2), Michigan (3), Minnesota (7), Missouri (18), Montana (6), Nevada (6), New York (10), North Carolina (2), Ohio (11), Oklahoma (1), Oregon (4), Pennsylvania (18), Tennessee (6), Texas (4), Utah (12), Virginia (9), Vermont (2), Washington (27), Wisconsin (24), Wyoming (3). The common link to all these illnesses were Pot Pies produced by ConAgra. We commenced several lawsuits on behalf of several dozen of the 272 people genetically linked to each other and to ConAgra’s Salmonella-tainted Pot Pies, including one who just received these AFFIRMATIVE DEFENSES:

ConAgra, by counsel, reserves the right to rely upon the following affirmative defenses to the claims asserted in Plaintiffs’ Complaint to the extent supported by evidence later developed or facts later learned, without now assuming a burden of proof on any such defense that would otherwise rest on Plaintiffs’ and with reservation of its rights to amend or supplement its responses to Plaintiffs’ Complaint, as well as its affirmative defenses, as information is gathered through discovery.

5.Plaintiffs’ claims are barred in whole or in part by the doctrine of assumption of risk.

6.The negligence of Plaintiffs’, and their failure to use that degree of care as would have been used by ordinary, reasonable and prudent persons under the same or similar circumstances was a, or the sole, proximate cause of their injuries.

7.The alleged injuries and/or damages of Plaintiffs were caused by the alteration, unintended use, abuse, misuse and/or modification of the product referred to in the Complaint in an unforeseeable manner by parties outside the control of ConAgra.

8.Defendant affirmatively alleges that the Plaintiffs’ claim is barred or appropriately reduced by the doctrine of contributory negligence.

9.All alleged defects in the product at issue and all uses or alleged misuses of the product at issue constitute open and obvious hazards that Plaintiffs should have noted and avoided.

Now remember, these Pot Pies were supposed to be pre-cooked and not to contain Salmonella in any event. ConAgra’s defenses are shameful and shameless – talk about frivolous.  By the way, for those at ConAgra reading my blog (you know you do), please check out Doug Powell’s video on cooking Pot Pies.

  • undisclosed

    we see that all the time– the insurance company always scream about frivolous lawsuits– the fact is they put up more frivolous defenses (especailly the med mal cases) to delay, protract and make litigation unnecessaily expensive—rather than accept responsiblity for their own actions
    it is complete bull but the public rarely sees that side of the story….
    they assumed the risk of eating bad food from our irresponsible company that does little if anything to make sure the product is safe for actual human consumption…come on
    they claimed the same thing in a brain surgery case in NY: my spin on their defense is below
    she assumed the risk of brain damage and paralysis because we operated on her using cob job eqiupment that is not approved even for vetinary use without telling her; and that we incidentally failed to maintain and malfunctioned during surgery but nevertheless its not our fault– the hemorrhage was a risk of any brain surgery and its all her fault cause although she was unconscious at the time, she mistakenly trusted us like a dumb ass to operate on her brain with safe appropriately maintained equipment–so she assumed the risk of injury and is guilty of culpable conduct and contributory negligence
    Its time to elect some politicians that will work to curb insurance company abuses rather than punish injured parties

  • Carol Sandt

    Your January 3, 2008 pot pie outbreak-related blog states the following:
    “Now remember, these Pot Pies were supposed to be pre-cooked and not to contain Salmonella in any event.”
    I am puzzled by this statement based on ConAgra Foods’ news release (excerpted below) which contains text implying that its pot pies contain uncooked poultry that would be expected to be contaminated with Salmonella:
    “ConAgra Foods Offers Consumer Advisory Regarding Banquet Pot Pies
    OMAHA, Neb.–(BUSINESS WIRE)–Oct. 9, 2007…The company reminds consumers that these products are not ready-to-eat…Salmonella is among the common pathogens found in not-ready-to-eat poultry containing products like pot pies.”
    Did the pre-recall ingredient list specify that the poultry used in the pot pie was cooked or uncooked?