Ashley Milano  |  December 2, 2016

Category: Consumer News

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Costco Frozen Berries LawsuitA group of consumers are urging 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.

Costco had originally lost its October bid to decertify the class action and dismiss the case, but was allowed to redo its motion for summary judgment, which the retailer filed on Nov. 22.

In the new motion, Costco contends that at least five of the named plaintiffs fail to establish recoverable damages under state laws and therefore have no standing in this tort claim.

The warehouse giant also now argues that the frozen berries were never defective since not one of the named plaintiffs were able to show proof that they consumed berries contaminated by hepatitis A, thereby mooting their claims for strict liability.

But the consumers fought back Monday, tell U.S. District Judge David O. Carter that Costco and berry supplier Townsend Farms Inc. voluntarily recalled the frozen berries and issued several statements that the berries were “unfit for human consumption and must be discarded.”

The plaintiffs reminded the court that the companies urged customers who ate the contaminated berries to quickly obtain a vaccination against the disease.

“The defendants may well think that a jury would shrug and accept their argument that Costco and Townsend Farms were just kidding when they issued warnings urging class members to get vaccinated, and that, instead, the recalled product was actually safe all along and not defective after all,” the consumers wrote. “But, according to proof that the plaintiffs will offer at trial … it is precisely the inability of a consumer to know whether hepatitis A was present in the berries or not, and to know whether a vaccination was actually necessary or not, that made the product so unsafe and so defective.”

Furthermore, the plaintiffs argued that actual proof of the virus existing couldn’t be determined in this instance anyway since the berries were consumed, discarded, or destroyed following the recall.

“By conflating the requirement of an actual defect with a requirement of actual contamination, the defendant rely on a circular argument to try to raise the burden of proof for a food product claim higher than the what the laws of nine states in fact require,” the consumers wrote.

The 2013 hepatitis A outbreak affected hundreds of people who reportedly fell ill with the infection after eating frozen mixed berries purchased from Costco stores in nine states: Arizona, California, Colorado, Hawaii, Idaho, Nevada, New Mexico, Oregon, and Washington.

The U.S. Centers for Disease Control and Prevention (CDC) quickly linked the multistate outbreak to pomegranate arils in Townsend Farms Organic Antioxidant Blend sold at Costco.

Soon after, Costco voluntarily removed the product from its shelves and contacted all customers who had purchased the frozen fruit to warn them about their potential exposure. The warehouse chain also offered free vaccinations in the outbreak’s aftermath, and ultimately vaccinated 10,316 customers.

In January, Judge Carter certified the class action, including nine state-specific subclasses of consumers seeking damages for pain and inconvenience of obtaining a hep A vaccination and fear that they may have contracted the virus.

The consumers are represented by Frederic L. Gordon of Gordon & Holmes, Richard R. Waite of Keeney Waite & Stevens and William D. Marler of Marler Clark LLP.

The Costco Hepatitis A Frozen Berry Recall Class Action Lawsuit is Petersen, 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 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 2: 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 3: 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 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: March 2019, a website for Class Members in a Costco hepatitis A berries class action lawsuit has been launched. Click here to learn more. 

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One thought on Costco Customers Fight Motion to Dismiss Hepatitis Berry Class Action

  1. Top Class Actions says:

    UPDATE: 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.

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