Granting the defendants’ motion to dismiss in part, a federal court in New York has allowed further proceedings on most of the claims filed by a man who alleged that consuming one to two cans of tuna daily for more than two years caused his mercury poisoning. Porrazzo v. Bumble Bee Foods, LLC, No. 10-4367 (U.S. Dist. Ct., S.D.N.Y., decided September 30, 2011). So ruling, the court agreed with the Third Circuit Court of Appeals that the Food and Drug Administration’s failure to adopt a regulation on the alleged risks of mercury in fish or warnings about that risk does not preclude the states from imposing a duty to warn. Additional information about that case appears in Issue 272 of this Update.

According to his complaint, the plaintiff purchased and consumed 10 sixounce cans of tuna fish each week from January 2006 to October 2008, at a time when the manufacturing defendant “promoted its tuna fish as an ‘excellent and safe source of high quality protein, vitamins, minerals and Omega-3 fatty acids, as well as being low in saturated fats and carbohydrates[,] and touted its product as being ‘heart healthy,’” without disclosing that it contained mercury. The plaintiff allegedly began experiencing chest pains, heart palpitations, sweatiness, dizziness, and lightheadedness several times each week, which led him to seek medical attention for what he believed was a heart condition. His primary care physician ordered a heavy metals blood test after numerous other tests failed to reveal the cause of his symptoms, and the test purportedly revealed that he had more than double the normal mercury level in his blood. Thereafter, the N.Y. State Department of Health advised the plaintiff to stop eating tuna fish, and within a few weeks, his blood mercury level had returned to normal, and his symptoms disappeared.

In addition to finding that the plaintiff’s claims were not preempted, the court determined that (i) he had plausibly alleged an injury and that the defendants’ conduct was the proximate cause of his injury; (ii) his claims for emotional distress and punitive damages could be pursued as elements of his damages but not as causes of action; (iii) his daily tuna consumption could not be said, as a matter of law, to be unreasonable; (iv) it was too early to say that the “dangers of mercury poisoning from consumption of canned tuna fish are open and obvious, and that an ordinary consumer would necessarily be aware that canned tuna fish contains high levels of methylmercury”; and (v) he adequately alleged strict liability failure to warn as to both defendants.

The court determined that the plaintiff could not pursue a negligent failure to warn claim or a claim for breach of implied warranty of merchantability against the retailer under state law. The court also ruled that some of the plaintiff’s claims could be pursued under the state’s Agriculture and Markets Law, but that others, involving claims of added deleterious substances, unfit food, the product of a diseased animal, or inferiority to other like products on the market, failed. The court indicated that it would not sua sponte allow the complaint to be amended, noting that the plaintiff did not request leave to file a second amended complaint or demonstrate how further amendment would cure the deficiencies in his pleadings.