The U.S. Supreme Court cleared the way for a suit by a New Jersey woman who claims to have suffered mercury poisoning from Chicken of the Sea canned tuna.
The denial of certiorari sets the stage for a federal court trial in Newark, N.J., in a putative class action suit, filed under New Jersey’s Product Liability Act, that faults a cannery company with not putting mercury warnings on the label.
The justices without opinion let stand a 3rd U.S. Circuit Court of Appeals ruling last September that the claim is not pre-empted by the Food and Drug Administration’s “pervasive regulatory scheme.” The appeals court said this is a case where state tort law complements federal regulations, which often lack a compensatory apparatus or a process for gathering information about potential claims.
The suit asks for certification of two classes, one in New Jersey and the other nationwide, of people who bought tuna distributed by Tri-Union Seafoods LLC, of San Diego, and were not warned of mercury hazards. The suit seeks compensatory, punitive and treble damages as well as costs of future medical monitoring and attorney fees.
Plaintiff Deborah Fellner of Mine Hill, N.J., who said she virtually lived on Chicken of the Sea tuna from 1999 to 2004, sued Tri-Union Seafoods LLC, of San Diego, in state court in 2006 after contracting mercury poisoning. Tri-Union removed the case to federal court and the U.S. District court dismissed it in early 2007, finding the claims pre-empted.
But the 3rd Circuit said the suit did not conflict with the FDA’s regulatory scheme, noting the FDA addressed the toxicity issue primarily through an advisory. It set maximum recommended consumption levels for women who are or might become pregnant, nursing mothers and young children but did not “specifically regulate” tuna consumption or promulgate a legal standard with which state law claims could conflict.
The 3rd Circuit said that neither the advisory — nor a letter the FDA sent to California’s attorney general in connection with a 2004 suit against Tri-Union and other tuna producers over failure to warn about mercury — served to institute a regime affirmatively proscribing all warnings obligations.
“[T]he FDA has not acted in a way that creates a federal regulation,” says Adina Rosenbaum of Public Citizen in Washington, D.C., which represented Fellner at the 3rd Circuit, along with William Crutchlow of Eichen Levinson in Edison, N.J.
The case is Fellner v. Tri-Union Seafoods LLC, 06-CV-0688.
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