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Tuna That Tastes Good: Tri-Union Seafoods

By James M. Beck and Mark Herrmann

We don't do food; we do drugs.

(Does that sound bad?)

We veered off into food to read The People ex rel. Edmund G. Brown, Jr. v. Tri-Union Seafoods, LLC, No. A116792, 2009 Cal. App. LEXIS 309 (Cal. App. Mar. 11, 2009), a California Proposition 65 case. Tri-Union involved a lawsuit brought by the State of California to require producers of canned tuna to warn pregnant women that they are exposed to methylmercury when they consume canned tuna.

After a six-week bench trial, the court said, "Sorry, Charlie," ruling that the State was not entitled to any of the relief it requested. The trial court rested its decision on three separate grounds: (1) Prop 65, as it applied to the tuna companies, was preempted by federal law, (2) the amount of methylmercury in canned tuna doesn't rise to the threshold level that would trigger a warning requirement, and (3) virtually all methylmercury is "naturally occurring," and thus doesn't count toward the threshold exposure.

We were hoping for a decision on the preemption issue, but the court disappointed us. The First District Court of Appeal affirmed the trial court judgment solely on the ground that there was substantial evidence to support the decision that virtually all methylmercury is naturally occurring. Given that holding, the appellate court didn't have to reach the other issues.

We overcame our disappointment about not reading a preemption case when we reached the following language, suggesting that courts consider appointing expert panels to help resolve complex scientific questions:

"It bears contemplating, however, whether the truth about complex, threshold scientific issues encompassed within Proposition 65 -- such as whether methylmercury in fish is naturally occurring -- is best derived by application of the substantial evidence rule to the testimony and opinions of dueling experts serving under partisan commitments. . . . More than a century ago our Supreme Court proposed that rather than relying on expert witnesses called by the parties, the trial courts should summon a disinterested body or board of experts to give their opinion and reasons therefore to the court and jury regardless of the consequences to either litigant. . .. Our Evidence Code now provides for a similar remedy, authorizing courts to appoint experts to investigate and render a report on the matter in question, subject to cross-examination by the parties. . . . Resort to such a procedure could reduce the risk of a decision based on anything but the most valid scientific investigation and assessment."

Id. at *45-46.

In appropriate circumstances, we're all in favor of convening expert panels to help guide factfinders. We'll tuck this precedent in a file, and we'll use it when the right time comes.

We hope you will, too.

Full post as published by Drug and Device Law on March 30, 2009 (boomark / email).