Understand Your Rights. Solve Your Legal Problems
The American food supply chain, an intricate web of global sourcing and domestic distribution, is increasingly finding itself at the center of sophisticated product liability litigation.
Recent alerts from the U.S. Food and Drug Administration (FDA) highlight two distinct, high-stakes recalls.
One involves Sea Port Products Corp.'s Raw Frozen Easy Peel White [Shrimp], which was potentially contaminated with the radioactive isotope Cesium-137 (Cs-137).
The other alert concerns New Age International Inc.'s Signature [Enoki Mushroom], contaminated with the dangerous bacteria Listeria monocytogenes.
These two recalls, though distinct in their contaminating agents, are united by a common and growing legal thread in the product liability landscape: the potential for mass tort and class action claims based on breaches of implied warranty, unjust enrichment, and consumer protection statutes, even in the absence of a mass reported outbreak of severe illnesses.
They represent the current frontier of food litigation, where perceived risk and economic loss replace physical injury as the primary basis for class certification.
The recall of Sea Port shrimp is part of a broader, unsettling investigation by the FDA into Cs-137 contamination tied to an Indonesian processor, PT. Bahari Makmur Sejati (BMS Foods).
Cesium-137 (Cs-137), a man-made radioisotope and a byproduct of nuclear fission, is not a typical foodborne hazard.
Its presence, suspected to be the result of contaminated scrap metal or industrial practices near the processing facility, introduces a unique, almost unprecedented element to product liability claims in the food sector.
The FDA's official announcement stated that the primary health concern following longer-term, repeated low-dose exposure is an elevated risk of cancer, resulting from damage to DNA within living cells.
Crucially, the FDA explicitly stated that the recalled product appeared to have been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with Cs-137 and “may pose a safety concern.”
For a class action lawsuit to materialize from the shrimp recall, plaintiffs’ counsel would likely focus on two primary, yet legally complex, theories, both of which pivot on the un-consumed product's diminished value:
1. Economic Damages (The "No-Injury" Claim): The most immediate and certifiable class would be all purchasers who paid full value for a product that was, by definition, defective and unmerchantable from the moment of purchase. This class seeks a full refund for the product—a claim of "benefit of the bargain" harm.
Under state consumer fraud and warranty statutes (such as violations of the Uniform Commercial Code’s Implied Warranty of Merchantability), the injury is not physical illness, but the economic loss suffered by purchasing a product that fails to meet basic safety expectations.
The product’s failure to comply with basic, reasonable safety expectations constitutes the injury, regardless of whether a consumer ate it or became ill.
Even if the contamination levels are below the FDA's Derived Intervention Level (DIL) for Cs-137 (which, according to FDA’s public statements, they were), the mere fact of the recall and the potential for a long-term cancer risk is sufficient to strip the product of its intended value, allowing the action to satisfy Rule 23's Commonality and Typicality requirements.
2. Medical Monitoring Claims: A more advanced and legally contentious legal theory involves a class seeking funds for future medical monitoring. Given that the long-term health risk of Cs-137 exposure is an elevated risk of cancer, plaintiffs could argue for the establishment of a court-supervised fund to pay for regular screening and testing for exposed consumers.
This claim, recognized in a minority of jurisdictions but gaining momentum, hinges on proving that exposure created a "significantly increased risk" of a serious latent disease, justifying the expense of preventative monitoring.
The influential American Law Institute (ALI) Third Restatement of Torts now supports recovery for medical monitoring expenses "even absent present bodily harm," signaling a potential judicial trend that defense counsel must anticipate.
The wide-ranging nature of the Indonesian supplier's product (affecting multiple brands and retailers nationwide) perfectly satisfies the Numerosity requirement of Rule 23, setting the stage for centralized, high-stakes litigation, likely consolidated into a Multi-District Litigation (MDL).
For a full and detailed account of the FDA's findings and recall information, legal professionals should consult the official advisories posted on the FDA’s website regarding the frozen shrimp recalls associated with Cesium-137.
The recall of Signature Enoki Mushrooms due to Listeria monocytogenes contamination presents a more traditional, yet equally high-stakes, product liability scenario.
Listeria is known to cause severe illness, Listeriosis, particularly in vulnerable populations (the elderly, immunocompromised, and pregnant women) and has historically been the basis for numerous high-value settlements in foodborne illness litigation.
The New Age International Inc. Signature Enoki Mushroom recall announcement from the FDA confirmed the presence of the organism, which can cause serious and sometimes fatal infections, and warned that it “can cause miscarriages and stillbirths among pregnant women.”
The mushroom recall generates two parallel streams of litigation:
1. Personal Injury/Wrongful Death Claims (Mass Tort): These claims focus on individuals who consumed the product and developed Listeriosis. Because Listeria cases involve highly individualized questions of medical history, severity of illness, causation, and damages, these actions are typically pursued as individual lawsuits or consolidated under a Multidistrict Litigation (MDL) for pre-trial efficiency. The threat of these severe, potentially fatal, injury cases creates massive leverage for plaintiffs against the manufacturer, New Age International Inc., and any retailers in the chain of distribution.
2. Economic Damages Class (The Superiority of "No-Injury"): Similar to the radioactive shrimp scenario, a Rule 23(b)(3) class action would capture all consumers who purchased the recalled Signature Enoki Mushrooms but did not fall ill. Their claim is purely for economic harm—recovering the purchase price of a food item that posed a significant and unacceptable health risk. This "no-injury" class action is often deemed the Superior method for resolving the claims of thousands of consumers with small, identical damages, as individual lawsuits would be cost-prohibitive. The successful prosecution of a handful of personal injury claims dramatically increases the settlement value of the parallel no-injury class, as the manufacturer faces a unified and credible threat of liability. Legal and industry experts should review the FDA's advisory on the Listeria monocytogenes contamination for precise recall details.
For companies like Sea Port Products and New Age International, a voluntary recall is often the first line of defense, demonstrating reasonable conduct and mitigating future punitive damages.
By cooperating with the FDA, immediately removing the product, and offering refunds, a company aims to demonstrate a commitment to consumer safety.
However, as legal practitioners know, the recall itself can be a double-edged sword that provides key evidence for plaintiffs:
1. Subsequent Remedial Measure (SRM) Rule Challenge: Federal and many state rules of evidence generally bar the recall notice from being used to prove initial negligence or culpable conduct (Federal Rule of Evidence 407).
This is known as the Subsequent Remedial Measure (SRM) rule. However, plaintiffs' attorneys are highly adept at having the recall admitted for other purposes, such as proving the existence of a feasible safety measure, showing a duty to warn, or disputing the knowledge a company had of the defect.
The fact that the company took a post-injury or post-discovery action to prevent further harm often proves to be an insurmountable hurdle for the defense in the court of public opinion, and often in the courtroom.
2. Waiver of the Defect Element: The fact of the recall effectively concedes the defect of the product—an essential element of any strict liability claim.
This streamlines the central liability element of a product liability claim and allows plaintiffs to proceed rapidly to class certification arguments centered on injury and damages.
The defense is then forced to focus on the individual nature of damages (to defeat commonality and predominance), rather than the existence of the hazard itself.
3. Insurance and Corporate Governance Fallout: Beyond the courtroom, these recalls trigger complex insurance coverage disputes, including those under Commercial General Liability (CGL) policies for bodily injury and specialized Product Recall/Contamination Insurance policies.
Furthermore, the specter of a shareholder derivative suit looms when recalls reveal deep, systemic failures in corporate governance, compliance protocols, and supply chain oversight.
The current legal climate, with heightened consumer awareness, increasing global supply chain complexity, and sophisticated "food forensics" testing driving litigation, ensures that these recalls are not merely news stories. They are the opening salvos in complex and costly legal battles that are redefining the boundaries of "injury" and determining the true cost of contaminated commerce.
Can you sue for buying recalled food if you didn’t get sick?
Yes. Many consumers file “no-injury” class action lawsuits to recover the purchase price of contaminated products. Even without illness, the product is considered defective and unmerchantable.
What is a “no-injury” class action lawsuit?
A no-injury class action allows consumers to sue for economic loss when a product poses safety risks, even if no physical harm occurred. The claim is usually for refunds under consumer protection or warranty laws.
What is Cesium-137 and why is it dangerous in food?
Cesium-137 is a radioactive isotope created by nuclear fission. Long-term exposure, even at low levels, can increase the risk of cancer by damaging DNA.
What legal claims arise from Listeria contamination?
Listeria cases often involve personal injury lawsuits for people who became ill, wrongful death claims for fatalities, and class actions for consumers seeking refunds.
How do recalls affect product liability lawsuits?
Recalls can help plaintiffs because they act as evidence that the product was defective. While companies argue recalls are a “remedial measure,” courts often allow them to show knowledge of the defect or safer alternatives.
Can consumers get medical monitoring after exposure to contaminated food?
In some jurisdictions, yes. Courts may approve medical monitoring funds when exposure creates a significantly increased risk of serious illness, even without current symptoms.
