Jones v. WFM-WO, Inc.

• Decision Date: 17 July 2017
• Docket Number: No. 3:17–cv–00749,3:17–cv–00749
• Citation: 265 F.Supp.3d 775
• Parties: Holly Lynn JONES, Individually, and Holly Lynn Jones, as Next Friend of ECJ, a Minor, Plaintiffs, v. WFM–WO, INC., d/b/a Whole Foods Market, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

265 F.Supp.3d 775

Holly Lynn JONES, Individually, and Holly Lynn Jones, as Next Friend of ECJ, a Minor, Plaintiffs,

v.WFM–WO, INC., d/b/a Whole Foods Market, Defendant.

No. 3:17–cv–00749

United States District Court, M.D. Tennessee, Nashville Division.

Filed July 17, 2017

John C. Taylor, Dotson & Taylor, Murfreesboro, TN, for Plaintiffs.

Austin K. Purvis, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Nashville, TN, Robert F. Tom, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Memphis, TN, for Defendant.

MEMORANDUM

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Pending before the Court in this removed action is Defendant WFM–Wo, Inc. d/b/a Whole Foods Market's ("Whole Foods") Motion to Dismiss (Doc. No. 5), to which Plaintiff Holly Lynn Jones on behalf of herself and her minor child ECJ have filed a response (Doc. No. 13) and Whole Foods has replied (Doc. No. 14). For the reasons that follow, the Motion to Dismiss will be granted in part and denied in part.

I. Factual Background

The Complaint, originally filed in the Davidson County Circuit Court, alleges the following facts:

On March 18, 2016, Jones went to the Whole Foods Market grocery store on Hillsboro Pike and purchased two slices of "Vegan Garden Pizza" for ECJ, her daughter. ECJ has a "severe nut allergy

, including a severe allergy to pecans." (Doc. No. 1–1 Comp. ¶ XI). After eating the pizza slices, ECJ "suffered a severe allergic reaction, resulting in serious and life-threatening injuries" that required hospitalization. (Id. ¶¶ XV, XVI).

The pizza was located in Whole Foods' bakery department, where each pizza "was accompanied by specific label/signage identifying each variety of pizza by name and further specifying each variety of pizza's list of ingredients." (Id. ¶ IX). Jones had purchased the Vegan Garden Pizza in the past for consumption off-site, "specifically relying upon the label/signage accompanying the same, which specified its contained ingredients—namely that it did not contain certain nuts and/or ingredients derived from nut products." (Id. ¶ XII).

After ECJ suffered the allergic reaction

, Jones contacted the "manager of the prepared food department," who stated that the "Vegan Garden Pizza" had been improperly labeled on the day in question and that it "did, in fact, contain nuts and/or ingredients derived from nuts." (Id. ¶ XVI). The manager also stated that this occurred because an employee used a taco sauce from the burrito bar that contained "crushed pecans," and that "no labels and/or signage were utilized in warning patrons that the ‘Vegan Garden Pizza’ contained ‘crushed pecans,’ nuts and/or ingredients derived from nuts." (Id. ).

Based upon the foregoing allegations, Jones filed suit alleging negligence, negligent supervision, product liability, misbranding of food for consumption, and breach of express warranty. Whole Foods moves to dismiss all claims.

II. Standard of Review

In considering a motion to dismiss under Rule 12(b)(6), the Court "construe[s] the complaint in the light most favorable to the plaintiff, accept[s] its allegations as true, and draw[s] all reasonable inferences in favor of the plaintiff." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) ; Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). Plaintiff need only provide "a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests," Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), and the Court must determine only whether "the claimant is entitled to offer evidence to support the claims," not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ). Nevertheless, the allegations "must be enough to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In short, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679, 129 S.Ct. 1937 ; Twombly, 550 U.S. at 556, 127 S.Ct. 1955.

III. Application of Law

Whole Foods moves to dismiss based upon the following arguments:

1. The vegan pizza was not in a defective or unreasonably dangerous condition as is required to state a products liability claim under Tennessee law because nuts such as pecans are a common, well-known, and essential ingredient in vegan foods;

2. Whole Foods was not required to warn of the presence of pecans in the vegan pizza under the applicable federal law, which expressly preempts any state law to the contrary, including all claims asserted by Plaintiff in this case;

3. Plaintiff fails to state a claim for breach of express warranty under Tennessee law because the Complaint does not allege that Whole Foods made an affirmative representation that the vegan pizza was free of nuts; and

4. Plaintiff is not permitted to recover damages for herself individually for alleged personal injury to ECJ under Tennessee law.

(Doc. No. 5 at 1–2). The Court addresses each argument in turn.

A. Product Liability and Defective or Unreasonably Dangerous Condition

To prevail on a claim under the Tennessee Products Liability Act ("TPLA"), Tenn. Code Ann. § 29–28–101 et seq. , "a plaintiff must prove that the product was defective and/or unreasonably dangerous." Tatham v. Bridgestone Americas Holding, Inc., 473 S.W.3d 734, 749 (Tenn. 2015). This is because the Act specifically provides that "[a] manufacturer or seller of a product shall not be liable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller." Tenn. Code Ann. § 29–28–105(a).

What constitutes a "product liability action" is broadly defined to include "all actions based upon the following theories: strict liability in tort, negligence, breach of warranty (express or implied), breach of or failure to discharge a duty to warn or instruct, misrepresentation, concealment or non-disclosure, or under any substantive legal theory in tort or contract whatsoever." Id. § 102(6). "Accordingly, whether a plaintiff's claim against a product manufacturer is couched in negligence, strict liability, or breach of warranty, Tennessee courts have held that the plaintiff must establish that the product was defective or unreasonably dangerous at the time the product left the control of the manufacturer." Stockton v. Ford Motor Co., 2017 WL 2021760, at *3 (Tenn. Ct. App. May 12, 2017) (collecting cases).

Whole Foods argues that Jones' claims fail at the outset because nuts are a common staple of a vegan diet and, therefore, having nuts in a vegan pizza does not make it defective or unreasonably dangerous. It quotes Ingram v. Hall, 2009 WL 1971456, at *1 n.1 (M.D. Tenn. July 7, 2009) for the proposition that a vegan is ‘a vegetarian who omits all animal products from the diet" and does not eat any "meat, fish, or fowl," and Keesh v. Smith, 2011 WL 1135931, at *6 (N.D.N.Y. Feb. 2, 2011) for the proposition that "[b]ecause vegans do not eat dairy products, including eggs and cheese, they rely upon legumes such as peas, beans, lentils, and soy for protein." Whole Foods also cites cases which basically state that vegan diets commonly include nuts, see e.g., Tatum v. Meisner, 2016 WL 323682, at *7 (W.D. Wisc. Jan. 26, 2016) ; Cotton v. Cate, 2011 WL 3877074, at *3 (N.D. Cal. Sept. 1, 2011), and points to a Department of Agricultural website (www.choosemyplate.gov/protein-foods) that discusses protein options for vegetarians and vegans, including "beans and peas, processed soy products, and nuts and seeds[.]" Doc. No. 6 at 7–8).

From this, Whole Foods contends that "[t]here is no question that a reasonable consumer would objectively expect that the Vegan Pizza would not contain meat, fish, fowl, or any animal products such as ‘honey, eggs, or cheese ... [or] milk’ but that it could contain alternative sources of protein from pecans or other nuts." (Id. at 7). The Court begs to differ.

Under the TLPA, " ‘[d]efective condition’ means a condition of a product that renders it unsafe for normal or anticipatable handling and consumption," and " ‘[u]nreasonably dangerous' means that a product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics[.]" Tenn. Code Ann. § 29–28–102(2) & (8). "Th [is] consumer expectation test assesses ‘whether the product's condition poses a danger beyond that expected by an ordinary consumer with reasonable knowledge.’ " Tatham v. Bridgestone Americas Holding, Inc., 473 S.W.3d 734, 750 (Tenn. 2015) (quoting Ray ex rel. Holman v. BIC Corp., 925 S.W.2d 527, 529 (Tenn. 1996) ). "Put another way, ‘[u]nder this test, a product is not unreasonably dangerous if the ordinary consumer would appreciate the condition of the product and the risk of injury.’ " Id. If "plaintiff provide[s] sufficient evidence to create a question of fact that the product was ‘dangerous,’ " then "[t]he general rule in Tennessee is that the issue of whether a product is defective or unreasonably dangerous is one for the jury," and " ‘the jury is to employ its own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence.’ " Jackson v. Gen. Motors Corp., 60 S.W.3d 800, 805–06 (Tenn. 2001) (citations omitted).

An ordinary consumer purchasing a slice of vegan pizza may well expect that it would...