Costco Denied Quick Win in Hepatitis Berry Class Action

Top Class Actions’s website and social media posts use affiliate links. If you make a purchase using such links, we may receive a commission, but it will not result in any additional charges to you. Please review our Affiliate Link Disclosure for more information.

Costco has failed to bring a quick end to a three-year old litigation over berries contaminated with hepatitis A, following a federal judge’s decision.

U.S. District Judge David O. Carter granted plaintiffs’ ex parte motion to strike summary judgment by defendants Costco, Townsend Farms and Fallon Trading Co.

The judge agreed with the plaintiffs that the defendants’ motion was filed too late – after the cutoff date for motions, and in violation of the court’s scheduling orders.

Costco and the other defendants filed their motion on October 24, in hopes of bringing this three-year-old litigation to a quick end.

The motion sought a judgment in the defendants’ favor based solely on the evidence yielded in discovery and without proceeding to a full trial.

In an eleventh-hour defense, Costco attempted to counter the plaintiffs’ arguments, saying the most recent controlling case schedule set October 24 as the deadline for filing motions.

Costco also argued that cutting off any further motions would be inappropriate because discovery is supposedly not yet complete.

The company says two experts who authored reports disclosed in September have yet to be deposed, and there has been no discovery of evidence relative to two new Class Representatives proposed by the plaintiffs.

Plaintiffs countered that the March 2015 scheduling order sets October 24 as the date for hearing motions for summary judgment, not the date on which those motions can be filed. With an October 24 hearing date, the motions themselves should have been filed weeks in advance of that date, the plaintiffs argued.

The Costco hepatitis A class action lawsuit was filed in June 2013, when word got out that Townsend Farms Organic Antioxidant Blend frozen berries sold through Costco the previous month had been tainted with hepatitis A. The contamination allegedly resulted from Townsend Farms’ purchase of a batch of infected pomegranate seeds.

Following notification of the outbreak by the Centers for Disease Control, Costco pulled the affected Townsend Farms frozen berries from it shelves. Potentially exposed Costco customers were advised to get vaccinated for hepatitis A as soon as possible.

Plaintiffs claim 162 persons in several different western states ultimately got sick due to the outbreak. Other potential Class Members ultimately did not get sick but did have to purchase vaccines and blood testing at their own expense.

In January 2016, plaintiffs won certification for nine proposed subclasses, one from each state in which consumers were affected by the Costco frozen berry contamination. But with Costco’s motion for summary judgment now out of the way, plaintiffs must now oppose a pending motion by the defendants to decertify the plaintiff Class.

As certified, the nine subclasses cover affected Class Members in the states of Arizona, California, Colorado, Idaho, Hawaii, Nevada, New Mexico, Oregon and Washington.

The plaintiffs are represented by attorneys Denis W. Stearns and William D. Marler of Marler Clark LLP; Frederic L. Gordon of Gordon & Holmes; and Richard R. Waite of Keeney Waite & Stevens.

The Costco Hepatitis A Frozen Berry Recall Class Action Lawsuit is Jacob Peterson, et al. v. Costco Wholesale Co. Inc., et al., Case No. 8:13-cv-01292, in the U.S. District Court for the Central District of California.

UPDATE: On Nov. 28, 2016, a group of consumers urged a California federal judge to reject Costco’s motion for summary judgment in a class action lawsuit over frozen berries allegedly contaminated with hepatitis A.

UPDATE 2: On Jan. 17, 2017, a class action alleging a frozen berry mix sold by Costco was contaminated with hepatitis A will be allowed to continue after a California federal judge’s ruling.

UPDATE 3: On June 6, 2018, Costco urged a federal court to toss a class action over frozen berries that were allegedly contaminated with hepatitis A because none of the plaintiffs claim that they had actually become ill after consuming the product.

UPDATE 4: On Oct. 31, 2018, consumers were able to get Costco to agree to reimburse medical expenses for those affected by an alleged hepatitis A frozen berry recall, as a part of a class action settlement.

UPDATE 5: On Jan. 17, 2019, a federal judge presiding over a frozen berry Costco class action lawsuit has denied the defendant’s motion to dismiss non-California plaintiffs from the case.

UPDATE 6: March 2019, a website for Class Members in a Costco hepatitis A berries class action lawsuit has been launched. Click here to learn more.