Hebrew National hot dogs with mustard and relish

Hebrew National Hot Dogs may answer to a Higher Authority, but for the time being they’ll also be answering to the United States District Court of Minnesota.  Hebrew National Hot Dogs which are owned by ConAgra Foods, Inc. has been sued in a class action Complaint (pdf download) which alleges that it utilized deceptive and misleading labeling by representing that Hebrew National hot dogs are strictly 100% kosher in violation of applicable consumer protection statutes.  The suit claims that ConAgra’s kosher meat producer, AER Services, improperly slaughtered and did not maintain the slaughter house in accordance with Kosher laws by, among other things, using knives which were nicked thus preventing a clean cut as mandated by Kosher law and by failing to keep kosher meat separate from non-kosher meat.

The suit contains causes of action for:

  1. negligence;
  2. violation of state consumer protection acts;
  3. breach of express and/or implied warranty; and,
  4. breach of implied warranty of merchantability/fitness for a particular use.

The suit further alleges that employees of AER Services raised concerns about the procedures at the slaughter house, but those concerns were dismissed and the employees were either threatened with retaliation or fired.  None of the employees are named in the suit.

Hebrew National hot dogs are certified as Kosher by Triangle K, the Kosher Food Supervision and Certification Agency which is based in New York.  Neither Triangle K nor AER Services are named as Defendants in the Complaint.  In statements, Triangle K and AER Services have all denied that the allegations.  ConAgra which successfully removed this action to Federal Court has untilJuly 13, 2012to answer.  In response to the suit, ConAgra issued a press release which states that…

for more than 100 years, Hebrew National has followed strict dietary law, using only specific cuts of beef that meet the highest standards for quality, cleanliness, and safety with no by-products, artificial flavors, or artificial colors.”

Some states have statutes which regulate the labeling of Kosher food.  See e.g., the New York Kosher Law Protection Act of 2004.  We expect the Food and Drug Administration as well as other states to issue additional regulations pertaining to such advertising given the increased production and distribution of other religiously significant food products.  Food manufacturers and distributors should follow these regulations closely, as failing to follow them can be costly.  One recent suit brought in Orange County California against Super King Market subsequently settled for $527,000.  In that suit,  Super King allegedly improperly sold generic meat as halal meat, or that which follows Islamic law.
Continue Reading Hold the relish: ConAgra under fire for allegedly misrepresenting kosher status of Hebrew National hot dogs

Co-authored by Brian Gross

On September 28, 2011, the Sixth Circuit Court of Appeals awarded Garlock a decisive victory in the matter of Olwen Moeller v. Garlock Sealing Technologies, LLC (C.A. No. 09-5670).  In overturning a jury verdict against Garlock, the Moeller Court, pursuant to the substantive laws of the State of Kentucky, held that plaintiff failed to prove that any alleged asbestos exposure from Garlock products was a substantial factor in the development of Robert Moeller’s mesothelioma.

The facts of the case were not in dispute.  The decedent, Robert Moeller (“Decedent”), was a pipefitter from approximately 1962-1970.  During the course of this employment, Decedent allegedly worked with Garlock asbestos-containing gaskets. Additionally, from 1962 to 1975, Decedent had significant exposure to asbestos-containing thermal insulation.  Both the Decedent’s estate and Garlock agreed that the Decedent’s mesothelioma was caused by asbestos, and that the thermal insulation exposed him to asbestos.

At trial, plaintiff presented the testimony of Richard Hatfield, Dr. Arthur Frank and Decedent’s treating physician, Dr. Charles Webb.  Hatfield testified that Decedent was exposed to asbestos through the removal of Garlock gaskets.  Dr. Frank testified that all of Decedent’s exposures to asbestos, including  the exposure to Garlock gaskets, contributed to cause Decedent’s mesothelioma.  And lastly, Dr. Webb testified that if Decedent scraped and grinded asbestos gaskets, and then in turn inhaled the fibers, that exposure could have caused his mesothelioma.

Based on the testimony of plaintiff’s experts, Garlock argued that plaintiff failed to prove that any exposure to asbestos as a result of working with Garlock products was a substantial contributing factor to the development of Decedent’s mesothelioma, and moved for directed verdict and for judgment on the pleadings.  Both were denied, and Garlock appealed to the Sixth Circuit Court of Appeals.

In overturning the verdict against Garlock, the Court found that while Garlock gaskets may have contributed to cause Decedent’s mesothelioma, plaintiff failed to produce evidence which would “support an inference that it was a substantial cause of his mesothelioma.”  In so finding, the Court held that “Plaintiff failed to quantify [Decedent’s] exposure to asbestos from Garlock gaskets.”   Moreover, because “plaintiff concedes that [Decedent] sustained massive exposure to asbestos from non-Garlock sources, there is simply insufficient evidence to infer that Garlock gaskets probably, as opposed to possibly, were a substantial cause of [Decedent’s] mesothelioma.”

The Moeller decision is part of a growing trend in which courts have begun to look upon with disfavor the plaintiff’s “every exposure” theory of substantial causation.  As a result of this trend, it has become even more important than ever to obtain as much information as possible concerning all of a plaintiff’s alleged exposures.  Moreover, it is increasingly important to drill down on plaintiffs’ experts in order to reveal their inability to quantify a plaintiff’s alleged exposure to a particular defendant’s product.

Continue Reading Sixth Circuit Holds that Substantial Cause Must Be Explicitly Established; “Every Exposure” Insufficient