Food & Beverage Litigation Update l June 2021

Shook, Hardy & Bacon L.L.P.

Johnson to Answer Food Safety Questions in AIB International Webinar

Shook Of Counsel John Johnson III will answer “That Food Safety or FDA Question You’ve Always Wanted to Ask” in a webinar presented by AIB International on Friday, June 4, at 11:00 a.m. CDT. The webinar will be live and will feature answers to questions commonly asked about food safety as well as questions provided by the audience. Register now to join the webinar on June 4.

Massachusetts High Court Affirms Mistrial for “Reptile Litigation Tactics”

The Massachusetts Supreme Judicial Court has affirmed a lower court’s grant of a mistrial in Fitzpatrick v. Wendy’s Old Fashioned Hamburgers of New York, Inc. This was a bone-in-the-hamburger case, causing a broken tooth and multiple surgeries. The lower court had found that the plaintiff’s counsel used “so-called ‘reptile’ litigation tactics” in the closing, including:

“But you know what, when Wendy’s and JBS sells all those burgers, they are more than happy to take our money. We pay for the burger. It goes to them. But when a burger hurts somebody, no responsibility. No accountability. Shame on them, honestly—shame on them.”

“Are these important rules in our community? Are we going to enforce them? Are you going to enforce them? If the rules that we talked about here, the safety rules, if those are important you need to speak to that and your verdict needs to speak to that. Your verdict will speak volumes echoing outside of this Courthouse. If the rules are not important, if it’s okay for them to serve burger with bone and someone gets hurt once in a while, and if they get injured, too bad for them. Then you know what? Give these guys a pass. Give them a pass. I don’t think you can. I don’t think you can give them a pass.”

“And this may be the kind of case that triggers something for you a month from now or a year from now. You might be eating a burger. Maybe you’ll read an article that someone else got hurt by a food product. Or you’ll be telling your wife or your husband about the case. That somebody ate a burger and they did not expect to get hurt. And that safety rules were violated and that you helped to make a wrong right. You made it right and you held them responsible and accountable.”

Wendy’s moved for a mistrial. The plaintiff’s counsel protested that he had not “crossed any lines.” The judge responded, “I have not yet decided how close you were to that line but it was close. I’m going to let it go to the Jury and we’ll see what happens after that. All right?”

The jury returned a $150k verdict, and the judge granted the mistrial.

The Massachusetts high court decided that mistrial motions must be decided when they are first brought, and moving forward, judges cannot reserve judgment on the motion until after the jury has returned a verdict. After a verdict, a party seeking a new trial must bring a motion for a new trial—it would be too late at that point to declare a mistrial. Moreover, at that point the court should apply the standard for a motion for a new trial, which involves reviewing the entirety of the trial, and assessing the potential for prejudicial impact on the jury’s verdict in light of that totality, rather than examining just the offending conduct as it would in the context of a motion for a mistrial.

The court reasoned that this approach would discourage mistrial motions, opining, “This approach will best conserve judicial resources by discouraging counsel from resorting rashly to the most drastic remedy possible for trial errors.” In other words, it raises the stakes—defendants moving for a mistrial now risk getting what they ask for; the judge can’t give them a free shot at a defense verdict first.

The court let the trial court’s judgment stand in this case, because it found no abuse of discretion.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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