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Eric Skelly is a partner with MG+M. He is a civil litigator who focuses his practice on all aspects of civil litigation including food liability matters, business and commercial disputes, products liability, and toxic torts.

House Bill 4123 makes two changes to Massachusetts Superior Court procedure, both of which favor plaintiffs.  The first, addressed by Section 1 of the bill, allows plaintiffs’ attorneys to request a specific monetary amount of damages at trial.  The second, addressed by Section 2 of the bill, allows attorneys to conduct voir dire.

The Language of the Bill

Section 1 of the bill states that “[i]n civil actions in the superior court, parties, through their counsel, may suggest a specific monetary amount for damages at trial.”

Section 2 of the bill requires the court, upon the request of any party or any party’s attorney, to permit “the party or the party’s attorney to conduct, under the direction of the court, an oral examination of the jury venire.”  This examination is not unlimited, however.  Instead, “[t]he court may impose reasonable limitations upon the questions allowed during such examination.”  The court may provide additional time to the parties at its discretion.

Examination by a party or a party’s counsel does not replace voir dire conducted by the court.  Instead, such examination is “[i]n addition to whatever jury voir dire of the jury venire [that] is conducted by the court.”  Also, the bill does “not limit the number of peremptory challenges a party is entitled to by statute or court rule.”

Massachusetts’s Jury Trial Statistics

 

In a 2005 study, the Department of Justice analyzed plaintiff success rates in the United States’ seventy-five most populous counties.  Four Massachusetts counties were included in this study: Essex, Middlesex, Suffolk, and Worcester.  The study revealed that plaintiffs prevailed approximately 53.2 percent of the time nationwide.  However, in the four Massachusetts counties, plaintiffs prevailed in only 79 of the 321 jury trials, for a success rate of approximately 24.6 percent.

 

Potential Impact of the Bill

 

The Massachusetts Academy of Trial Attorneys, an organization of Massachusetts plaintiffs’ attorneys, believes that the implementation of House Bill 4123 will make Massachusetts a more plaintiff-friendly jurisdiction.  After the governor signed the bill into law, the Academy’s president posted a letter to the group’s website calling the bill “a cultural shift in Massachusetts.”  The letter further stated that “the ability to state a dollar amount at trial is also a huge advance” for plaintiffs’ attorneys.

If the Academy is correct, House Bill 4123 could make Massachusetts a particularly problematic jurisdiction for toxic tort and products liability defendants.  According to the Department of Justice’s 2005 study of nationwide trial statistics, plaintiffs prevailed in jury trials less than half as frequently in Massachusetts as they do throughout the country.  If plaintiffs in Massachusetts jury trial begin winning more often because House Bill 4123 (1) gives their attorneys a better chance to influence the jury through attorney-conducted voir dire and (2) strengthens their attorneys’ presentation to the jury by authorizing them to request a specific amount of monetary damages, then Massachusetts could become an appealing jurisdiction for plaintiffs, and plaintiffs’ attorney might be emboldened to push cases to the
Continue Reading Will House Bill 4123 Turn Massachusetts Into a Filing Haven for Plaintiffs?

FMSA Moving Forward

In the future, we might look back at 2013 as the year the Food Safety Modernization Act (FSMA) finally got some teeth.  In January, the Food & Drug Administration (FDA) released two long awaited proposed rules, one aimed at food manufacturers and the other at farmers. A third rule is still in the drafting process and will require food importers to comply with United States standards through a stringent verification process.

It has been two years since President Obama signed FSMA into law, but these new rules proposed in January would be the first which actually give the FDA enhanced authority in its efforts to prevent food-borne illness. A major motive behind FSMA and the new rules is to allow the FDA to be proactive, rather than reactive, which, in turn, should lead to a tangible decrease in the number of food-related illnesses.  Presently, one in every six Americans suffers from a food-borne illness annually, with 130,000 requiring hospitalization and 3,000 dying each year.  As a result of these eye popping numbers, and increased media coverage, outbreak awareness and food litigation have exploded in recent years.   From the perspective of attorneys involved in food litigation, there are likely several ways which these new rules will impact current and future client.  Let’s take a closer look:

Rule #1, Manufacturers:

This rule will require food manufacturers to formulate a plan to prevent its food products from causing food-borne illness, as well as a plan to deal with any contamination or outbreak.  The rule also requires that the plan include a detailed strategy related to recall procedures.  Manufacturers will be required to document the plan and keep records to verify that their preventive steps are working. Furthermore, each plan will be evaluated by the FDA, and it will use the plan as a key factor in determining “high risk” facilities, which will be subject to increased inspections.  The new rule also grants audit power to FDA inspectors to confirm compliance with safety standards established in a plan.  Additional scrutiny by the FDA means more opportunity for a problem to be found, which could lead to increased future litigation. As such, compliance with the new rule is of paramount importance to any of your clients who manufacture a food product (which includes products originally manufactured in a foreign country). Your clients must be advised that a well-crafted, detailed plan is essential to both minimize risk of a contamination event, and to reduce the possibility of FDA scrutiny through audits and inspections. 

Also, it may sound obvious, but your clients must be instructed that going forward, they must comply with the plan at all times.  Having a plan is the first step, but that plan must be followed.  It is almost worse for your client to have a plan, if they do not comply with it.  After the rule is formally enacted, it is easy to envision how a plaintiff could exploit any inconsistencies or failure to comply with the plan that your


Continue Reading FSMA: Finally Moving Forward

Ben & Jerry's Chocolate Nougat Crunch Ice Cream

With the Summer Solstice only days away, and peak ice cream eating season upon us, Unilever,PLC, the company which owns Ben & Jerry’s, is voluntarily recalling pints of Ben & Jerry’s Chocolate Nougat Crunch Ice Cream because the container label does not include a statement which warns that the product was manufactured on equipment also used to process peanuts and tree nuts.  In its press release concerning the recall, the Food & Drug Administration (“FDA”) warned that individuals who have an allergy to nut products would “run the risk of serious or life-threatening allergic reaction if they consume” this Ben & Jerry’s product.  The ice cream was distributed to retailers nationwide and it appears that the pints reached shelves for consumer purchase. Luckily, no illnesses have been reported to date.

In 2004, Congress passed the Food Allergen Labeling and Consumer Protection Act (“FALCPA),” which mandates the labeling of food allergens on packaged foods.  The Act was added to the Federal Food, Drug and Cosmetic Act and became effective in 2006.  21 U.S.C.  § 321.  FALCPA requires that manufacturers of foods which contain one of the eight major allergens responsible for 90 percent of food allergies (which includes peanuts and tree nuts) either:

  1. state on the food’s packaging that the food contains the allergen; or
  2. refer to the allergen in the ingredients listing.

According to the Food Allergy and Anaphylaxis Network, 4 percent, or 9 million adults, and about 8 percent or 6 million infants and young children in theU.S., suffer from food allergies. Every 3 minutes a food allergy sends someone to the emergency room in theUnited States.  In fact, more than 200,000 consumers require emergency room treatment each year.  According to the FDA approximately 150 Americans die each year from food allergies.  This is a large pool of potential claimants and you can rest assured that plaintiff firms are well aware of the statistics and track labeling related recalls closely.

We continually advise our manufacturing and processing clients that proper labeling, especially with respect to allergens is critically important.  We help insure that they have appropriate checks and balances surrounding food production and labeling.  Furthermore, we remind our retail (i.e. grocery stores and restaurants) and food services clients that they are held to the same FALCPA labeling standards if they package food for consumption at their facilities.

The Ben & Jerry’s recall is the perfect example of a situation that could result in serious food borne illness claims, and even wrongful death claims.  These claims can be difficult to defend if the labeling practices of a company violated FALCPA, and a claimant can provide proof that they consumed the mislabeled product and suffered an adverse reaction.  In cases such as the Ben & Jerry’s recall, an experienced plaintiff firm’s first step will be to attempt to preserve the food item and any packaging.  As such, any company conducting a recall for mislabeling should not destroy the product at issue, or risk a spoliation claim from future claimants.  Allow this
Continue Reading Ben & Jerry’s Recall: Container Label Missing Nut Allergen Advisory in Chocolate Nougat Crunch

Raw HamburgerOn May 2, 2012, the United States Department of Agriculture (“USDA”) announced a series of prevention-based policy measures that it believes will better protect consumers from foodborne illness in meat and poultry products.

The USDA states that the purpose of these new regulations is to better allow both manufacturers and the USDA to:

(1)  trace contaminated food materials in the supply chain;

(2)  react more quickly to contamination; and

(3)  establish effective food safety systems.

The first measure will allow the USDA’s Food Safety and Inspection Service (“FSIS”)  to speed up the process for tracking E. coli O157:H7 in the nation’s food supply.  Currently, after an initial report of E. coli, USDA officials are required to wait for additional confirmation before they can begin an investigation.  These new measures will now allow FSIS to  initiate its investigation after the first indication of a positive test and move quickly to identify the source of the contaminated product and any processors who may have received contaminated product.  Once the source is properly identified, FSIS can issue instructions for minimizing consumer cases of foodborne illness accordingly.

The second key measure announced by the USDA is the implementation of three provisions included in the Food, Conservation and Energy Act of 2008.  These provisions will now require food establishments to:

(1)  prepare and maintain recall procedures on site;

(2)  notify FSIS within 24 hours that a meat or poultry product which could harm consumers has been shipped into commerce; and

(3)  document each reassessment of their hazard control and critical control point (HACCP) system food safety plans.

In addition,  USDA will make publicly available guidance to plants on the steps that are necessary to establish that their HACCP food safety systems will work as designed to control the food safety hazards that they confront. This process, called “validation,” enables companies to ensure that their food safety systems are effective for preventing food borne illness.  The guidelines will be available on the USDA website.

Proactive compliance with food safety standards, such as these recent measures enacted by USDA is of paramount importance to any company in the food industry. We advise our clients that such a proactive approach is essential to minimize risk, protect  the company’s brand name, and most importantly, to protect the customer. As such, all food manufacturers, suppliers and processors should, as soon as possible, ensure that their plants are in compliance with the new USDA measures, particularly with respect to reporting potential contamination and documenting any changes to a HACCP plan.  Furthermore, companies should preemptively review the HAACP plan guidelines released by USDA to confirm that their food safety systems are adequate and in compliance with federal laws.  The USDA expects the new regulations to go into effect in July, which just happens to coincide with the peak grilling season in the United States.
Continue Reading USDA Tightens Oversight and Announces New Foodborne Illness Measures