Legal News

Chicken-of-the-Sea Headed Back to Court Over Mercury Poisoning

By Dan Slater

Tired of preemption in the medical device context? Let’s try tuna.

Tri-Union Seafoods, maker of Chicken-of-the-Sea brand tuna, took a hit yesterday when the Third Circuit Circuit Court of Appeals revived a class action brought against it by consumers who say they were never warned that excessive consumption could lead to mercury poisoning. The appeals court found that a lower court improperly dismissed the suit on the grounds that it was pre-empted by FDA regulations.

Here’s a report from the Legal Intelligencer, and here’s the 38-page opinion.

“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,” wrote Judge Walter K. Stapleton on behalf of a unanimous three-judge panel.

Someone else who might applaud the decision is Daphne Zuniga, of Melrose Place fame. Zuniga apparently had a pretty bad case of mercury poisoning a few years back. Click here for her account.

The facts of the Tuna case merit a brief mention: Deborah Fellner, the plaintiff alleges that, for five years, her diet consisted almost exclusively of Chicken-of-the-Sea tuna, causing her to contract severe mercury poisoning, and that Tri-Union Seafood had failed to warn consumers of the risk of excessive tuna consumption.

John A. Kiernan of Bonner Kiernan Trebach & Crociata repped Tri-Union. Adina H. Rosenbaum and Brian Wolfman of the Public Citizen Litigation Group repped the plaintiff, Deborah Fellner, in the appeal along with William O. Crutchlow and Khalid Elhassan of Eichen Levinson & Crutchlow.

Correction: An earlier version of this post contained a picture and made mention of the StarKist mascot, Charlie Tuna, rather than the Chicken-of-the-Sea mermaid.

Full post as published by Law Blog - WSJ.com on August 20, 2008 (boomark / email).