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From Products Liability Law Daily, December 12, 2014

Dismissal of suit alleging makers’ high-fructose corn syrup caused teen’s diabetes upheld

By Susan Lasser, J.D.

The dismissal of a parent’s complaint, which alleged that her daughter’s consumption of high-fructose corn syrup (HFCS) was a substantial factor in causing her daughter to develop Type 2 diabetes, was affirmed by the U.S. Court of Appeals for the Second Circuit in a summary order. The parent’s complaint, asserting claims of negligence, gross negligence, strict products liability resulting from design defect, and failure to warn under New York law against five manufacturers of HFCS was dismissed by a federal district court in New York (S.F. v. Archer-Daniels-Midland Co., December 11, 2014, Per Curiam).

Background. S.F., the parent (mother) and natural guardian of S.E.F., a 14-year-old, 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.

The district court dismissed the complaint because the mother and daughter failed to plead and prove that HFCS was unreasonably dangerous and failed to link over-consumption of HFCS to the daughter’s development of Type 2 diabetes (see Products Liability Law Daily’s April 22, 2014 analysis). 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 mother and daughter failed to allege or prove the existence of an alternative design. The mother and daughter appealed the lower court’s decision.

Ruling on appeal. The court of appeals affirmed the trial court’s holding, finding first that the parent’s claims for negligence, gross negligence, and strict products liability based in design defects failed because she did not allege a safer alternative design for HFCS. The Second Circuit stated that a claim for defective design under New York strict products liability law requires a plaintiff to allege that “(1) the product as designed posed a substantial likelihood of harm; (2) it was feasible to design the product in a safer manner; and (3) the defective design was a substantial factor in causing [the] plaintiff’s injury.” The appellate court determined, however, that the parent failed to plead a safer alternative form of HFCS, and noted that S.F.’s attorney conceded as much during oral arguments. The Second Circuit reiterated the lower court’s finding that a design-defect claim fails “if the only alternative is an outright ban.”

In addition, the appellate court agreed with the trial court that the parent’s claims relied on “market-share liability theory,” and it rejected the theory’s application in the case. The doctrine “provides an exception to the general rule that … a plaintiff must prove that the defendant’s conduct was a cause-in-fact of the injury.” New York’s market-share liability theory allows a defendant manufacturer in limited circumstances to “be presumed liable to the extent of its share of the relevant product market.” According to the Second Circuit, the adoption of the theory was limited, and its application for the most part rejected by courts mainly on the ground that the product at issue was not fungible. In the current case, the appellate court noted, the manufacturers produced a product that was used in non-fungible products identifiable by brand names. The court ruled that it would not extend market-share liability to the parent’s case, agreeing with the lower court that the case didn’t meet the necessary criteria. Fungibility was only one factor. In addition, as the district court explained, there was no “signature injury” definitively linking the product to the harm, and the HFCS manufacturers did not have exclusive control of the risk because the end-product manufacturers—not the makers of HFCS—determined how much HFCS to use in their products.

The case number is 14-1615-cv.

Attorneys: John Michael Hayes (Law Office of J. Michael Hayes) for S.F., as Parent and Natural Guardian of S.E.F. Stephen Victor D'Amore (Winston & Strawn LLP) for Archer Daniels Midland Co., Cargill Inc., Ingredion Inc., and Tate & Lyle Ingredients Americas, LLC. David Ray Adams (Hurwitz & Fine PC), and Yonaton Aronoff (Foley & Lardner LLP) for Roquette America Inc. Companies: Archer Daniels Midland Co.; Cargill Inc.; Ingredion Inc; Tate & Lyle Ingredients Americas, LLC; Roquette America Inc.; Penford Products Corp.

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