Companies in the food and beverage industry are routinely confronted with false advertising claims making incredulous allegations. Recently, consumers claimed to be misled because “Froot Loops” has no real fruit and there are no real berries in “Captain Crunch Crunchberries.” Less frequent are product liability class actions for food borne illness claims. The reason for the disparity is simple: causation.

Unlike false advertising claims, product liability claims generally require a plaintiff to prove that a defect existed in the product and that the defect caused his or her alleged injuries. Contaminated food may be enough to establish a “defect” in a product. Causation is more difficult. It is likely that in a given day, a plaintiff ate more than the burrito, ice cream, or packaged nuts they claim made him or her sick. Simply eating a contaminated food product is not enough—a plaintiff must prove that the contamination was the cause of his or her illness.

Establishing causation through fact intensive discovery is inherently at odds with the purpose and intent of class certification – all members of the class must suffer from the same harm as a result of the same product. These are known as the typicality and commonality requirements. There is no “general proof” that can apply on a class-wide basis to demonstrate causation of food-borne illnesses – each class member would independently have to establish the defective food caused his/her illness. Such piecemeal discovery undermines the purpose of uniting members into a class. Indeed, federal and state class action jurisprudence admonishes these types of mini-trials and individualized inquiries.

Even so, the typicality and commonality prerequisites to class certification do not always preclude all food-borne illness class actions. If a food or beverage manufacturer is the unfortunate target of one of these suits, what should be done?

  1. If allowed in the jurisdiction, make an early motion to strike class allegations, arguing that product liability claims are inherently not susceptible to class treatment due to an inability to prove causation. Even if unsuccessful, such a motion would be beneficial insofar as it will educate the Judge on the fundamental deficiencies in the claims.
  2. If early motion practice does not resolve the claim, push to limit discovery only as to causation issues. While it is, and will always be, the plaintiff’s burden to show causation, well-crafted discovery requests can prove to be a useful tool in opposing a product liability class action. Inquiring into areas such as what other food was consumed and who else in the individual’s household may have been sick will assist in determining whether any other etiologies for the illness exist. Even if it is ultimately found that the contaminated food caused that person’s illness, the fact that detailed, prolonged discovery was needed to rule out other possible causes goes to show that class certification is inappropriate.

Litigation is an unfortunate reality of the food and beverage industry. However, developing a strategic plan during the early stages of a suit will lead to a more efficient resolution of the claim.