Attorney: Chobani could face more lawsuits over moldy yogurt, but they are very hard to prove

By Elaine Watson

- Last updated on GMT

Attorney: Chobani could face more lawsuits over moldy yogurt, but they are very hard to prove

Related tags Food safety Foodborne illness

The publication of a paper alleging that the fungus in yogurts voluntarily recalled by Chobani last fall is more virulent than originally thought could prompt a new wave of civil lawsuits against the Greek yogurt maker, although product liability cases are very tough to prove, say food law experts.

Justin Prochnow, an attorney in the Denver office of law firm Greenberg Traurig, was speaking to FoodNavigator-USA after microbiologists at Duke University claimed that “understudied Mucor species can cause a potentially serious illness following ingestion with foods".

In a paper published in the journal mBio (click HERE​), researchers  said they had tested yogurt from the refrigerator of a Texas couple who said they became ill after eating it and concluded that: “While information disseminated in the popular press would suggest this fungal contaminant poses little or no risk to consumers, our results show instead that it is capable of causing significant infections in animals.”

In the study - which draws conclusions Chobani says are not actually supported by the research in question -  the team isolated an M. circinelloides​ strain from the yogurt container, and via multilocus sequence typing, identified it as Mucor circinelloides​ f. circinelloides​.

The strain in question is the “most virulent M. circinelloides subspecies and is commonly associated with human infections, whereas  M. circinelloides f. lusitanicus and M. circinelloides f.griseocyanus  are less common causes of infection​,” said the researchers, adding that tests showed it can survive passage through the gastrointestinal tract of mice.

Could Chobani face further legal action?

So could Chobani face fresh civil litigation as a result of the new paper - the conclusions in which are strongly disputed by Chobani?

The firm has already been sued once over the mold incident last September, when California resident Howard Green filed a proposed class action lawsuit​ accused Chobani of negligence and breaching the implied warranty of merchantability. However, the case was voluntarily dismissed in late October and Chobani has not commented on whether it has reached a confidential settlement with Green.

The mBio paper will likely encourage some opportunistic plaintiff’s attorneys to launch new cases against Chobani, predicted Prochnow, but proving liability won’t be easy.

“Some plaintiff’s lawyers in California will probably try and take a shot at Chobani, but product liability cases can be very hard to prove; you need to show a causal link between the product and the damage, and there are often other factors such as what else that person had to eat, other medical conditions and so on.

“Also, with something like a mold, you don’t know whether all the products were affected or just a small number.”

Putative plaintiffs could face an uphill battle

Kristen Polovoy, counsel in the litigation department of Montgomery, McCracken, Walker & Rhoads LLP, added:"If there is a large time gap between a consumer’s consumption of the food pro​duct and the commencement of their symptoms, a putative plaintiff could face an uphill battle in being able to make a cause-effect connection between a specific food product and a specific physical illness.

"But if there is a parallel government agency investigation of a certain manufacturer’s specific food product, a putative plaintiff’s claim would arguably face less challenge in making the consumer’s legal claim."

She added: "Foodborne illness cases are often attractive to plaintiff’s counsel if they have the potential to be asserted as mass  tort cases.  But, each member of the class would have to show where he/she purchased the product, when it was bought, when he/she ate the food at issue, when he/she became ill, and why there is an alleged cause-effect relation between the food and the illness. 

"In other words, the purchase and illness circumstances would vary widely among the putative plaintiff class, which would require individualized fact-finding on non-common legal and factual issues – which sounds the death knell for class certification."

Where cases are filed also makes a big difference, she said: "If a plaintiff elected to sue in a state that has enacted strict product liability laws, the consumer would just have to prove the existence of a contaminant in the food and that the contaminant caused his/her illness – but not have to prove that the manufacturer was negligent in making and supplying the food. 

"If strict product liability doctrine is not available under the law applicable to a given plaintiff’s claims, he/she would have to prove that the manufacturer did not exercise due care in manufacturing / distributing the food at issue (and also prove that the food made him/her ill)."

Chobani: There is no evidence that the strain in the recalled products causes illness in consumers when ingested

Chobani, meanwhile, challenged the study's methodology and its findings (more to follow later).

In a statement, Dr. Alejandro Mazzotta, Chobani's vice president of global quality, food safety and regulatory affairs, said: "To our knowledge, there is no evidence, including the assertions presented in this publication, that the strain in the recalled products causes illness in consumers when ingested.”

Chobani has also added new equipment for microbiological testing since the recall and conducts more than 500 of these tests a day at different stages of production, he added.

"Chobani conducted an aggressive, statistically significant series of tests of the products voluntarily recalled in September 2013 with third party experts confirming the absence of foodborne pathogens. Chobani stands by these findings, which are consistent with regulatory agency findings and the FDA’s Class II classification of the recall on October 30, 2013."

Randy Worobo: Strain is not considered a disease-causing foodborne microorganism

Chobani first started fielding complaints about bloated and fizzy yogurt cups produced from its Twin Falls plant in Idaho last August, and issued a formal recall on selected products on September 5 after confirming they had been affected by a "common mold".

In an update​ on September 6, Chobani said that after “extensive testing and expert consultation, we now know that the mold … is a species called Mucor circinelloides​”

However, it reassured shoppers with a statement ​from Randy Worobo, professor of Food Science at Cornell University’s College of Agriculture and Life Sciences, who said that the mold “should not pose a health risk to most consumers​” and is “not considered a disease-causing foodborne microorganism”.

Very rarely, Mucor circinelloides can act as an opportunistic pathogen

Dr Worobo added: “Very rarely, it ​[Mucor circinelloides] can act as an opportunistic pathogen, but not through food and usually only for people with compromised immune systems through inhalation. The organism is regularly used for the production of natural flavor compounds that are widely used in the food industry.”

It’s not clear how many people ate the affected products, but the FDA told reporters last year that it had received more than 220 reports from people complaining of cramps, nausea, headache and diarrhea after eating Chobani products - although it stressed this did not prove that the yogurts made them sick.

Click HERE​ for more on this story.

The paper in mBio is:  Analysis of a Food-Borne Fungal Pathogen Outbreak: Virulence and Genome of a Mucor circinelloidesIsolate from Yogurt​, doi: 10.1128/mBio.01390-148 July 2014 mBio vol. 5 no. 4e01390-14

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