The 3rd U.S. Court of Appeals yesterday revived a class action lawsuit against Tri-Union Seafoods brought by a consumer who allegedly contracted mercury poisoning from eating Chicken of Sea tuna products over a five-year period.
In February 2006, Deborah Fellner filed the lawsuit in New Jersey Superior Court seeking damages under the New Jersey Products Liability Act for the "extreme physical and emotional injuries" she allegedly sustained from a diet consisting almost exclusively of Chicken of Sea tuna products from 1999 to 2004.
Fellner's claim is based on Tri-Union's failure to warn consumers of the health risks associated with excessive tuna consumption. Tuna and other predatory fish can contain high levels of the neurotoxin methylmercury.
Yesterday, a three-judge panel unanimously overturned a U.S. District Court ruling dismissing the suit on grounds that it was pre-empted by the U.S. Food and Drug Administration's regulatory approach to the risks posed by mercury in fish.
"The FDA has promulgated no regulation concerning the risk posed by mercury in fish or warnings for that risk, has adopted no rule precluding states from imposing a duty to warn, and has taken no action establishing mercury warnings as misbranding under federal law or as contrary to federal law in any other respect," said Senior U.S. Circuit Judge Walter Stapleton.
Defense attorney John Kiernan of Bonner Kiernan Trebach & Crociata argued that the FDA would deem any warning misleading because it would not "balance out the negative … information with positive information about the numerous healthy attributes of canned tuna."
But Stapleton disagreed, saying, "The FDA took no action to preclude state warnings - at least, no binding action via ordinary regulatory procedures."
In May 2006, California Superior Court ruled that canned tuna companies are not required to label their products with mercury warnings under California's Proposition 65 law, which requires food manufacturers warn consumers of products containing potentially hazardous substances, arguing that FDA's regulatory approach pre-empts state law.
