Costco Hepatitis A Frozen Berry Class Action Lawsuit Moves Forward

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.

Lead plaintiffs alleged in their class action lawsuit that Townsend Farms Organic Antioxidant Blend frozen berries sold through Costco had been tainted with hepatitis A.

The resulting outbreak allegedly sickened more than 100 people in several western states. The USDA issued a recall of the berry blend and told consumers they should get a vaccination for hepatitis A.

Costco has already lost several motions to dismiss the class action. Most recently, the company argued that the consumers had not shown that they had actually eaten the berry blend and therefore could not claim they were harmed.

Costco argued that by allowing the class action to continue, retailers would be at risk for lawsuits whenever there was a recall. U.S. District Court Judge David O. Carter disagreed with Costco’s argument.

“The plaintiffs are not asserting that a recall creates strict products liability, and are instead advancing a more nuanced argument,” pointed out the judge. “The thrust of plaintiff’s argument is that the berry mix was defective because it was unfit for human food.”

Judge Carter noted that while plaintiffs are required to show that a defect caused harm, it is also important to count the harm the plaintiffs may have suffered. The judge pointed out that in this case, the plaintiffs were required to seek medical attention, including an emergency vaccination.

Judge Carter also rejected Costco’s argument that the claims should be dismissed because the plaintiffs had not suffered any physical harm aside from a needle poke from the vaccination. Costco argued that case law holds that a needle prick is not enough to establish a claim.

“[T]hat court made that observation in the context of a negligent infliction of emotional distress fear of disease claim, where the plaintiff sought to recover for her fear of contracting AIDS,” pointed out the judge. “The court is not prepared to find, as a matter of law, that unwanted medical care in the form of a needle stick can never constitute a personal injury.”

The retail wholesaler also argued that the class action should be dismissed because the plaintiffs have not clearly established that they feared contracting hepatitis A and “have in numerous instances conceded they cannot show exposure to hepatitis A.”

The judge also rejected Costco’s argument that anyone who signed the liability waiver for a flu shot vaccine at Costco should not be able to participate in the class action. The judge found that the flu shot liability waiver was not meant for this situation.

Judge Carter agreed with this argument, finding that the plaintiffs had adequately established a claim for emotional distressed based on fear of contracting hepatitis A.

“Accordingly, to the extent plaintiffs have asserted a claim for emotional distress due to fear of disease, summary judgment is granted in part as to those claims,” the wrote the judge.

The Class was certified in January of this year.

The plaintiffs 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 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 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 2: 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 3: 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 4: March 2019, a website for Class Members in a Costco hepatitis A berries class action lawsuit has been launched. Click here to learn more.