Chicken-of-the-Sea Headed Back to Court Over Mercury Poisoning

[WSJ Law Blog]

Tired of preemption in the medical device context? Let’s try tuna.

Tri-Union Seafoods, maker of Chicken-of-the-Sea brand tuna, took a hit yesterday when the Third Circuit Circuit Court of Appeals revived a class action brought against it by consumers who say they were never warned that excessive consumption could lead to mercury poisoning. The appeals court found that a lower court improperly dismissed the suit on the grounds that it was pre-empted by FDA regulations.

Here’s a report from the Legal Intelligencer, and here’s the 38-page opinion.

“The FDA has promulgated no regulation concerning the risk posed by mercury in fish or warnings for that risk, has adopted no rule precluding states from imposing a duty to warn, and has taken no action establishing mercury warnings as misbranding under federal law or as contrary to federal law in any other respect,” wrote Judge Walter K. Stapleton on behalf of a unanimous three-judge panel.



Someone else who might applaud the decision is Daphne Zuniga, of Melrose Place fame. Zuniga apparently had a pretty bad case of mercury poisoning a few years back. Click here for her account.

The facts of the Tuna case merit a brief mention: Deborah Fellner, the plaintiff alleges that, for five years, her diet consisted almost exclusively of Chicken-of-the-Sea tuna, causing her to contract severe mercury poisoning, and that Tri-Union Seafood had failed to warn consumers of the risk of excessive tuna consumption.

John A. Kiernan of Bonner Kiernan Trebach & Crociata repped Tri-Union. Adina H. Rosenbaum and Brian Wolfman of the Public Citizen Litigation Group repped the plaintiff, Deborah Fellner, in the appeal along with William O. Crutchlow and Khalid Elhassan of Eichen Levinson & Crutchlow.

Correction: An earlier version of this post contained a picture and made mention of the StarKist mascot, Charlie Tuna, rather than the Chicken-of-the-Sea mermaid.

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Shannon P. Duffy
The Legal Intelligencer
August 20, 2008


The 3rd U.S. Circuit Court of Appeals has revived a class action suit against the manufacturer of Chicken-of-the-Sea brand tuna brought by consumers who say they were never warned that excessive consumption could lead to mercury poisoning.

The unanimous three-judge panel found that a lower court improperly dismissed the suit on the grounds that it was pre-empted by U.S. Food & Drug Administration regulations.

"The FDA has promulgated no regulation concerning the risk posed by mercury in fish or warnings for that risk, has adopted no rule precluding states from imposing a duty to warn, and has taken no action establishing mercury warnings as misbranding under federal law or as contrary to federal law in any other respect," Senior U.S. Circuit Judge Walter K. Stapleton wrote in Fellner v. Tri-Union Seafoods.

Read more...

Law.com - 3rd Circuit Revives Mercury-in-Tuna Class Action

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Plaintiff: DEBORAH FELLNER
Defendant: TRI-UNION SEAFOODS, L.L.C.

Case Number: 2:2006cv00688
Filed: February 15, 2006

Court: New Jersey District Court
Office: Newark Office
County: Morris
Presiding Judge: Judge Dennis M. Cavanaugh
Referring Judge: Magistrate Judge Mark Falk

Nature of Suit: Torts - Injury - Personal Injury- Product Liability
Cause: 28:1446pl Petition for Removal - Product Liability
Jurisdiction: Diversity
Jury Demanded By: Plaintiff

FELLNER v. TRI-UNION SEAFOODS, L.L.C. - 2:2006cv00688 - Justia Federal District Court Filings and Dockets