Costco is once again offering hepatitis A vaccinations to customers/members who were potentially exposed to hepatitis A contaminated frozen berries it sold (good on ya Costco). This time it is Canadian customers/members who purchased (and presumably consumed) Nature’s Touch Organic Berry Cherry Blend a frozen berry mix recently recalled by the Canadian Food Inspection Agency. The frozen berry mix was sold exclusively at Costco stores in Ontario, Quebec, New Brunswick, Nova Scotia, and Newfoundland and Labrador. Thirteen cases of Hepatitis A have been linked to the product — nine in Ontario, three in Quebec, and one in Newfoundland and Labrador — with the individuals becoming sick in February and March and three people were hospitalized. It is unclear at this point how many will receive vaccinations.
In 2013 Costco faced the same issues – contaminated frozen berries and hepatitis A and vaccines. A certified class action is still pending in Federal Court in California. There the named-plaintiffs and class members (estimated to be 25,000) allege injury as a result of actual exposure, or the imminent and real risk of having been exposed, to the hepatitis A in the “Townsend Farms Organic Anti-Oxidant Blend” that was subject to a recall announced in a press release that the defendant Townsend Farms issued on June 4, 2013. The FDA had sought the recall of the product because of the risk of hepatitis A infection created by the fact that the consumption of the recalled product had caused a hepatitis A outbreak. According to Townsend Farms, the product-recall was “because [the Product] has the potential to be contaminated with hepatitis A, based on an ongoing epidemiological and traceback investigation by the FDA and the CDC of an illness outbreak.” See http://www.townsendfarms.com/ (checked June 9, 2013). Because of the imminent and real risk of being infected as a result of having consumed the recalled-product, or having been exposed by intimate contact with someone actually infected by consumption of the recalled-product, the named-plaintiffs and class members took the medically-reasonable steps recommended by public health agencies—i.e., to obtain a hepatitis A vaccination or IG-shot—to avoid falling ill with hepatitis A.
In the 2013 lawsuit the defendants (both Costco and Townsend Farms) have argued against liability (despite the warning to get a vaccine to avoid developing hepatitis A) and despite that the vaccinations likely prevented hundreds of illnesses (and financial exposure for damages) that:
- “the number of bags containing contaminated pomegranate arils from … was very small compared to the total production during the relevant time period;”
- “the vast majority of the putative class was not exposed to the Hepatitis A Virus;”
- that for the plaintiffs to prove that the recalled product was “defective,” they must show that each bag of the recalled product was actually contaminated with Hepatitis A virus;
- “[m]ost of the product sold by Costco was apparently uncontaminated and perfectly fit for human consumption;”
- “in the parlance of product liability law, most of the mixed berries sold were not defective;” and
- “each Plaintiff must prove contamination in the package of berries he or she consumed.”
 Costco Opposition (Dkt. 159) at 5/18-20.
 Costco Opposition Brief (Dkt. 159) at 5/23-4.
 United Juice’s Opposition (Dkt. 158) at 1/26-8 and 2/1-2.
 See United Juice’s Opposition Brief (Dkt. 158) at 5/20-2.
 See United Juice’s Opposition Brief (Dkt. 158) at 5/22-3.
 See United Juice’s Opposition Brief (Dkt. 158) at 8/3-4.