Finding Foreign Objects in Food
We get a lot of questions sent to us when someone finds a foreign object in their food. These range from staples to pieces of plastic to completely unidentifiable objects and these are found in already prepared foods and in cans of ingredients.
The usual question on this topic is, “Can I sue?” and my usual response is, “You need to visit with a local lawyer to examine your options.”
I want to go into a little more detail here in this article since I really can’t answer a question like this sent directly to me.
Just as with anything else, anyone can sue anyone else for anything. However, suing a company because a customer finds a foreign object in their food is almost never the kind of case an attorney will take. That’s because lawsuits have to have two parts to make them feasible from an attorney’s point of view. The first is liability and the second is damages.
Proving liability in a case such as this is often hard and may require an expert which can cost an investment of several thousand dollars which is not recoverable in the case. Expert fees are generally not a “taxable cost of court”.
However, you can proceed to court and hope that the jury believes your testimony that the foreign object was actually found in your food and that it wasn’t placed there by you to try and “make money”, which is usually the position taken by the company. This defense often works because as the Plaintiff, or the one suing, the burden of proof is on you.
In addition, case law has long held there are certain objects which can’t be the basis of a lawsuit. For instance, the two most often is finding a piece of bone in the “boneless meat” you ordered or finding a cherry stone in a slice of cherry pie. These types of objects aren’t considered foreign, even though most people don’t expect them.
Above all, save the foreign object! Without it you have almost a 0% chance of any kind of recovery. We’ll discuss this later.
So, to sum up the portion on liability, to win a case you must be able to prove the company who provided the food was negligent and thus liable.
Next, you have to prove you had damages. In the past few years we’ve been hearing of people getting very sick when they ate some type of food with “E. Coli” bacteria in it. These people usually have sufficient doctor’s bills, lost time from work, etc. that they can tie directly to the food and thus prove the negligence caused them to have damages. This could also be done if, for instance, you swallowed a piece of metal and had to have an operation to remove it, it cut your throat or stomach, etc. However, if you spotted the foreign object in the food either while looking at it or felt it when it was in your mouth, then you likely don’t have the amount of damages that would justify the time and effort an attorney would have to spend to file and pursue the case.
You still have the option of filing the case yourself in small claims court and asking for damages including the cost of the food, plus mental anguish. Be warned though, mental anguish damages are not usually the basis for a substantial damages award unless you have some type of disfiguring injury.
Many companies will attempt to settle these type of cases rather than spend the time and effort to defend them, but their settlement offers rarely go above $1000 although you may be able to get some amount of money and then some free food coupons or shipment (although most people are hesitant to accept that if they have found a foreign object in the food originally).
This website, in conjunction with RebellionBooks.com a book available which explains the basics of small claims courts as well as how to present your case so if you intend to pursue it, you might be wise to invest the few dollars in something like this book to help you win your case.
Finally, if you do intend to pursue a case under no circumstances should you allow the company to take the foreign object from you. It is perfectly acceptable to set up a time where they can examine it with you present, and preferably with you videoing the examination. The foreign object provides the link between you, the food, and the company.
So, if you find a foreign object in your food the first option is to take it to a local attorney who does personal injury work (some of them have advertisements which show up on this website) and have them advise you on whether they will assist you but if they won’t, then the next step is to file the lawsuit yourself in a small claims court. Remember though, that while things aren’t as formal in a small claims court it is still a court and the judge enforces the rules so be sure you are prepared and ready to move forward because often you will be facing an attorney on the other side if your state allows it.