A federal court in New York has refused to dismiss claims alleging that Bumble Bee Foods is strictly liable for and was negligent in failing to warn about the mercury in its products in a lawsuit alleging personal injury from excessive consumption of the company’s tuna products, which contain methylmercury. Porrazzo v. Bumble Bee Foods, LLC, No. 10-4367 (U.S. Dist. Ct., S.D.N.Y., order entered February 27, 2014). An earlier ruling in the case is summarized in Issue 413 of this Update.

The plaintiff, who apparently consumed one to two cans of tuna daily for more than two years and was diagnosed with dangerously high levels of mercury in his body, also brought claims for breach of implied warranty of merchantability and violations of certain state statutory provisions involving agricultural and business law. The court found that the issues argued in Bumble Bee’s motion for summary judgment involved genuine issues of material fact that were for a jury to decide. Among other matters, the company argued that the level of methylmercury in its tuna was below the U.S. Food and Drug Administration’s (FDA’s) internal enforcement guideline and that the agency does not require warnings about methylmercury on fish product labels.

As to the latter, the court said, “the FDA’s decision not to adopt a warning requirement does nothing to absolve defendants of liability if they breached their common law duty to warn. To hold otherwise would entirely vitiate the failure to warn doctrine, rendering proof of such claim impossible unless a federal agency specifically mandated the missing warning. The Court declines to adopt such unworkable rule.”