You might not want to read this post around mealtime. But it does offer food for thought on an old bete noire, negligence per se. Louie DePalma, a character in one of our all-time favorite sitcoms, Taxi, once hired a lawyer who advertised that if he lost a case, he’d “eat a bug”. That’s what happened in Gentry v The Hershey Co., et al., 2010 U.S. Dist. LEXIS 9278 (M.D. Tenn. Feb. 3, 2010). The Gentry case is a combination of CSI, Willy Wonka, and Animal Planet.

Ms Gentry was in the habit of picking up a York Peppermint Patty at the Petco while shopping for her pet. (Yes, we have the same reaction. Turns out there’s a good reason for that reaction). She’d munch on the candy and then pay for it at the register. Only this time the texture of the Peppermint Patty was a bit … off. That’s because it came with something a little extra: moth larvae. She got sick and endured an “intensive regimen of psychological counseling.” And then she sued every entity in the Peppermint Patty’s chain of custody: manufacturer, distributor, and retailer.

At this point in the opinion, we are treated to a description of how a Peppermint Patty arrives in your hands. Unlike sausages, it’s not a bad story. So much heat (between 700 and 900 degrees Fahrenheit) and then refrigeration are involved that it was exceedingly unlikely that the moths showed up in the patties before the patties showed up at Petco. Moreover, a swarm of expert entomologists had examined the larvae and, based on their (the moths’, not the entomologists’) numbers and maturity, all concluded that the moths didn’t make their homes in the chocolate until Petco. This is gross and engrossing stuff. Moreover, the types of moths involved (Indian moths vs. Almond moths – we now know way more about this topic than we ever dreamed possible) often reside in grains and – ta da! – pet foods. So that proximity between the human food and pet food — in this case, the patties were close to “dog treat island” — which (ahem) bugged you about plaintiff’s dining habits, was spot-on. Anyway, summary judgment for the manufacturer and distributor.

Interestingly, plaintiff did not oppose the summary judgment motions submitted by the manufacturer and the distributor, but Petco did. Sorry, says the court, but Petco was basically now crying for comparative fault, an affirmative defense it had never pled. Too late. Goodbye Hershey and distributor.

Now Petco is not without defenses. Some work, some don’t. The sealed container doctrine does not work, because the boxes of patties were not sealed in the retail store. By the way, after the infestation was discovered, the store examined ten of the remaining patties and “observed larvae or webbing inside approximately four of those packages.” As Homer Simpson would say, “I like those odds!” But the store didn’t, so it discarded all remaining patties. The court seemed slightly annoyed by this, but didn’t address spoliation.

Nor was Petco able to escape a breach of warranty claim on the ground that Ms Gentry had not actually paid for the patty. It was her custom and practice to pay at the register and Petco acted like that was hunky-dory. It’s like restaurant patrons, where pay-when-served is the exception, not the rule. The restaurant cannot elude liability (“Waiter, there’s a fly in my soup”) because payment was not yet rendered.

But Petco did successfully fend off the claim of negligence per se, and that’s why we are posting on this case. (Much as mint patties renew and embiggen us, we aren’t calling them drugs or devices). Plaintiff argued that Petco was negligent per se because it violated both the FDCA and Tennessee’s little FDCA. The court threw out the claim for two reasons, both near and dear to our defense lawyer hearts: (1) there is no private right of action under the FDCA (big or little), and application of negligence per se would be a clumsy way of circumventing that fact of life (citing Kemp v. Medtronic, Inc., 231 F.3d 216, 236 (6th Cir. 2000)), and (2) plaintiff generally asserted that Petco violated the FDCA, but never exactly said how. “Plaintiff does not point to the specific statutory provisions under the FFDCA or TDFCA which Petco is alleged to have violated. Thus, the Court cannot determine whether either statute sets forth a duty, the violation of which would constitute negligence per se.” We’ve blogged in the past about how courts should not permit plaintiffs to make blanket assertions of FDCA violations in claims of negligence per se, especially in the wake of TwomblyIqbal, and this time the court gets it right.

Petco still faces trial on other theories of liability, but negligence per se is gone. The court also precluded punitive damages because there was no evidence of recklessness. Plaintiff tried to show such recklessness by virtue of a supplemental expert affidavit in response to Petco’s summary judgment motion. Plaintiff’s expert discussed an FDA news release, Petco’s training of its employees, and its track record in other stores. Petco cried foul because the expert had never uttered these opinions before and the discovery deadline had been passed a while ago. In an act almost as refreshing as a Peppermint Patty, the court actually enforced the discovery cut-off and excluded the supplemental affidavit. According to the court, “Plaintiff effectively tries to do indirectly that which she was being prohibited from doing directly — supplement her expert’s report.”

Of course, plaintiffs do that all the time. They also all the time offer vague pleading to support claims of negligence per se or other theories. And they often get away with it. We’ve often found ourselves saying that if a judge ever did the right thing and enforced the rules against plaintiffs, we’d eat a bug. We won’t be saying that anymore.