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From Products Liability Law Daily, April 22, 2014

Consumers fail to prove high-fructose corn syrup was defective or negligently designed or caused Type 2 diabetes

By Pamela C. Maloney, J.D.

A mother and daughter failed to plead and prove that high-fructose corn syrup (HFCS) was unreasonably dangerous and failed to link over-consumption of HFCS to the daughter’s development of Type 2 diabetes, a federal court in New York ruled, dismissing a products liability and negligence complaint against five manufacturers of HFCS. The court also determined that the complaint did not connect the daughter’s disease to the actions of any one of the manufacturers and that the duo failed to allege or prove the existence of an alternative design (S.F. v. Archer-Daniels-Midland Co., April 21, 2014, Skretny, W.).

Background. S.E. F., a 14-year-old, and her mother, S. F., brought strict liability, negligence, and failure-to-warn claims against five manufacturers of HFCS, alleging that the HFCS consumed by the teen in various end-products, such as popular soft drinks, was a substantial factor in causing her to develop Type 2 diabetes. According to the complaint, fructose is metabolized differently from glucose—“almost entirely in the liver”—and that it can therefore lead to insulin resistance. It was further alleged that HFCS “by-passes the insulin-driven satiety system, suppressing the degree of satiety that would normally result from a meal of glucose or sucrose”; in other words HFCS allegedly makes people feel hungry when they should feel full, which stimulates excessive and continued consumption. Thus, by extension, fructose is a major cause of metabolic syndrome and Type 2 diabetes, the complaint stated. The manufacturers moved to dismiss the complaint, arguing that it failed to establish a causal connection between HFCS and the teen’s disease, and that by grouping all the manufacturers together as one unit, the teen and her mother could not connect the alleged harm to any one particular manufacturer.

Causation. In order to prevail on her claim that these manufacturers were liable for placing an unreasonably dangerous product in the stream of commerce and for failing to warn of its dangerousness, the teen was required to allege that the HFCS manufactured by these companies was a substantial factor in causing her disease. Type 2 diabetes is a multifactorial disease which can be caused by, among other factors, lack of exercise, genetics, or poor diet. Even accepting the allegations in the complaint as true, there was little to suggest that the teen could prove her consumption of some foods containing HFCS over the course of her life was a substantial factor in causing her diabetes. While it might be possible that HFCS could have caused the teen to develop diabetes, the question was whether, based on the facts in the complaint, it was plausible. The Second Circuit has held that information regarding the particular effect foods have on causing injuries is the sort of information that is appropriate for discovery; however, the teen was still required to state a plausible claim for relief.

Market-share liability. Even assuming that the teen could surpass the causation hurdle, the court determined that the claims failed for several other reasons, including impermissible group pleading, i.e., making undifferentiated allegations against the defendants as a group without identifying any wrongdoing on the part of any particular defendant. The teen asserted that her claim should not be dismissed on this ground because she was proceeding under the doctrine of market-share liability, arguing that HFCS is a fungible product and she could not identify which company manufactured the HFCS that she had consumed. The court noted that New York courts have rejected application of this theory in cases that do not meet very strict criteria. In this case, the inability to locate evidence alone did not justify application of market-share liability, and fungibility was only one factor germane to the analysis. The other two key factors were not present: there was no claim that the manifestations of injury were far removed from the time of ingestion of the product, and there has been no legislation suggesting an overriding public interest in allowing claims like this to proceed in this manner. Furthermore, the manufacturers of HFCS did not have exclusive control of the risk. Instead, it was the makers of the end-products that decided what quantities of HFCS to use.

Unreasonably dangerous requirement. The second reason the teen’s claim must be dismissed even if causation had been adequately pleaded was her failure to plead that HFCS was unreasonably dangerous. As mentioned, the teen alleged that HFCS was more dangerous than sugar because of the way fructose is processed in the body. However, fructose is a naturally occurring compound, found in everyday, commonly consumed fruits, and the teen failed to distinguish between fructose found in fruit and fructose found in HFCS. If there is no difference between HFCS and simple fructose, HFCS can hardly be said to be unreasonably dangerous.

Safer alternative design. The third basis for dismissing the claim was the teen’s failure to allege how HFCS could be made safer. The teen had argued that all HFCS—even those formulations with a lower fructose-to-glucose ratio than sugar—was unsafe, regardless of its composition. However, she failed to demonstrate how HFCS’s risks could be removed without destroying its utility. The teen seemed to suggest that HFCS should not be used at all and that sugar should be used in its place. However, the court refused to impose state-law tort liability on the manufacture and sale of HFCS as that would constitute a virtual ban on the product, concluding that if the only alternative was an outright ban of a product, no design-defect claim could stand.

The case number is 13-CV-634S.

Attorneys: J. Michael Hayes (Law Offices of J. Michael Hayes) for S. F., as Parent and Natural Guardian of S.E.F., an Infant. Kevin M. Hogan (Phillips Lytle LLP) and Cornelius M. Murphy (Winston & Strawn LLP) for Archer-Daniels-Midland Co. Kevin M. Hogan (Phillips Lytle LLP) for Cargill, Inc., Ingredients, Inc., and Tate & Lyle Ingredients Americas, LLC.

Companies: Archer-Daniels-Midland Co.; Cargill, Inc.; Ingredion, Inc.; Tate & Lyle Ingredients Americas, LLC; Roquette America, Inc.

MainStory: TopStory DesignManufacturingNews WarningsNews SCLIssuesNews FoodBeveragesNews NewYorkNews

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