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D.C. Circuit Doesn't Swallow Lactose-Intolerance Class Action
Special to Law.com
November 19, 2007
Howard J. Bashman
Related: Bashman Archive
We are rapidly approaching that time of year when people gather with family and friends to celebrate holidays, complete with extravagant meals that may leave some participants feeling just a bit queasy. Perhaps, some lawyers might wonder in between bites, more food warning labels are needed for the day after such festive occasions?
That thought may not be as farfetched as it seems. Only last week, the U.S. Court of Appeals for the D.C. Circuit decided an appeal from the dismissal of a class action lawsuit against nine sellers of milk. The class was defined as consisting of individuals who consumed milk before becoming aware that they were lactose intolerant. As a result, the lawsuit alleged, they experienced stomach discomfort and flatulence. The class action sought, among other things, to have the sellers put warning labels on milk containers to warn consumers that some may experience these symptoms.
According to the D.C. Circuit's opinion, plaintiffs had suggested two specific warnings that could be affixed to milk containers. The first states, "Warning -- If you experience diarrhea or stomach cramps after consuming milk, you may be lactose intolerant. Check with your physician." The second proposed warning states, "Warning -- Lactose intolerant individuals may experience bloating, diarrhea, or other gastrointestinal discomfort from consuming milk. Check with your physician." However, the appellate court's opinion does not indicate whether the class members were seeking similar warnings for packages containing cheese, yogurt or ice cream.
After the case had been removed to federal court, the U.S. District Court for the District of Columbia dismissed the lawsuit for failure to state a claim. First, the trial court ruled that the plaintiffs' tort claim under local D.C. law was pre-empted by the federal Nutrition Labeling and Education Act. And second, the trial court ruled that even if federal law did not pre-empt the plaintiffs' tort claim, no duty to warn existed because the health consequences of being lactose intolerant are well known.
In affirming the trial court's dismissal of the case, the D.C. Circuit ruling relied solely on the second of these two bases in dismissing the suit. According to the appellate court, "we hold as a matter of law that a reasonable consumer today would be well aware that milk may adversely affect some people." The appellate court concluded its rejection of the plaintiffs' tort claim under D.C. law by stating: "the risk that milk will cause temporary gas and stomach discomfort to lactose-intolerant individuals who do not yet know of their condition cannot support a failure-to-warn tort claim under D.C. tort law."
As a result, the appellate court found it unnecessary to resolve whether the pre-empting effect of the Nutrition Labeling and Education Act also required the dismissal of the suit. And the court also observed that even if the risk of drinking milk were not widely known, the fact that the alleged harm is temporary and limited might nonetheless defeat any failure to warn claim.
Judge Brett M. Kavanaugh wrote the D.C. Circuit's opinion on behalf of a unanimous three-judge panel. His opinion reveals that he is no stranger to potential food-related causes of stomach upset: "A bout of gas or indigestion does not justify a race to the courthouse. Indeed, were the rule otherwise, a variety of food manufacturers as well as stadiums, bars, restaurants, convenience stores, and hot dog stands throughout the country would be liable to millions of would-be plaintiffs every day. Plaintiffs' novel claim falls far short of what D.C. law requires."
Because the D.C. Circuit's ruling issued literally only hours before this column had to be finalized for publication, it is too soon to know for certain whether the nation's baked-bean manufacturers are celebrating the decision's outcome. But in the meantime, those who would rather err on the side of caution may find it best to think twice about some of their menu choices this season -- and, in the absence of a court ruling to their liking, would-be litigants with sensitive stomachs may want to remember that revenge is a dish best served cold.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.
