Products Liability Law Reporter

A federal district court held that the manufacturer of a coffee drink could be liable to a consumer who discovered a dead rodent at the bottom of an empty drink can.

Ohio resident Safwat Qashqeesh purchased a can of Java Monster drink. After drinking most of the beverage in the can, he noticed that it was unusually heavy. He discarded the rest of the drink, inspected the inside of the can, and discovered a dead rodent. He became violently ill, which led to epigastric problems necessitating hospitalization.

Qashqeesh sued Sarwat Monster Beverage Corp., Monster Energy Co., and Energy Beverages, LLC, which own, license, manufacture, supply, and distribute the coffee drink, alleging negligence per se and statutory products liability. Among other things, the plaintiff alleged that the defendants were negligent per se because the Java Monster drink contained rodent contamination and was therefore an adulterated product that was unreasonably dangerous and unfit for human consumption, in violation of the Ohio Pure Food and Drug Law, Ohio Rev. Code Ann. §3715.01.

The defendants removed the case to federal court and then moved to dismiss.

Denying the motion, the court considered the defense argument that the Ohio Product Liability Act (OPLA) abrogated the plaintiff’s negligence per se claim. The court noted that all claims arising from a product’s manufacturing, warranty, or representation constitute products liability claims governed by the OPLA and that all common law products liability claims have been abrogated by the statute. Nevertheless, the court said, a violation of the Pure Food and Drug Law is not a common law products liability cause of action, adding that under applicable case law, a violation of the law was statutory negligence per se. Thus, the court concluded that the plaintiff could proceed with his claim as a permissible statutory negligence per se claim.

Turning to the plaintiff’s claim that the defendants’ manufacture, design, and failure to warn of the drink’s defective condition constituted a violation of the OPLA, the court rejected the defendants’ assertion that the plaintiff had not stated an adequate claim. To state an OPLA claim, the court explained, a plaintiff must provide more than a recitation of the statute and must submit a complaint that supports a plausible inference that a defendant designed or manufactured a defective product. Here, the plaintiff specified the product at issue by including its UPC number, referenced the OPLA sections at issue, and stated that his injuries were caused by the product’s failure, the court said. Consequently, the court held that the plaintiff had adequately stated an OPLA claim.

Citation: Qashqeesh v. Monster Beverage Corp., 2020 WL 6544246 (S.D. Ohio Nov. 6, 2020).

Plaintiff counsel: AAJ member Roger Soroka, Columbus, Ohio; and AAJ member Eric Henry, Chagrin Falls, Ohio.