Tyson Chicken Nugget Recall & Texas Products Liability Law

By Michael GrossmanSeptember 28, 2016Reading Time: 7 minutes

Tyson Foods, Inc. recently issued a recall of 132,520 pounds of pre-cooked chicken nuggets. According to their release, some of the 66+ tons of Panko Chicken Nuggets involved in the recall contain pieces of hard plastic within their processed pieces.

The U.S. Department of Agriculture's Food Safety Inspection Service is helping to circulate the Class I recall. "Class I" designation suggests that even minor exposure to the food could constitute serious health risks. The hazard to consumers is considered high.

The Lowdown: What Happened?

Based in Sedalia, MO, Tyson produced the faulty products on July 18 of this year per their records. Primarily shipped out in 5-pound bags to grocery retailers (mostly Costco locations), some nuggets were also packaged into 20-pound bags and shipped to a Pennsylvania wholesaler for larger-scale uses. The recall will include specific stores that received these shipments once they have been identified.

So far no injuries have been reported. Consumers have found plastic in their nuggets, but have thankfully avoided ingesting the pieces. In the recall notice, Tyson encourages anyone who suspects a possible adverse reaction to consult a health care provider, but strongly suggests that anyone who bought the damaged products either return or discard them.

The compromised nuggets can be identified by information on their packages:

  • 5-pound bags of "Tyson FULLY COOKED PANKO CHICKEN NUGGETS" with a "Best If Used By" date of July 18, 2017, and case code 2006SDL03 and 2006SDL33.
  • 20-pound bulk packages of "SPARE TIME Fully Cooked, Panko Chicken Nuggets, Nugget Shaped Chicken Breast Pattie Fritters With Rib Meat" with a production date of July 18, 2016, and case code 2006SDL03.

This link will also take you to images of the products' labels to aid in recognizing them.

The debris is believed to be pieces of a plastic rod that was attached to a transfer belt on the plant's assembly line. They are estimated to be around 21mm in length, and approximately 6.5mm in diameter. In other words, it's small and might not immediately be seen inside the nuggets' breaded coating.

tyson-foods-tiny

To assist with perspective, this Tyson Foods logo has been shrunk to 21mm wide x 6.5mm high: That could fit inside a nugget with room to spare.

While part of Tyson's quality control involves running finished products through a metal detector, the equipment cannot detect plastic materials.

What Can I Do if I Am Injured by This Product?

As helpful as these recalls are, their primary application is so retailers can remove the offending product from their shelves as quickly as possible. Consumers cannot be expected to meticulously scour the Internet for recalls before every grocery-shopping excursion, and only the highest-profile incidents of food contamination tend to get "face time" in the media (Chipotle's recent scares with listeria, norovirus, and salmonella come to mind).

Tyson's move on this was fairly swift, and that's a start, but ex post facto action doesn't necessarily save people who bought the product in good faith, expecting no more excitement from it than noshing on some nuggets during a Netflix binge. There's a very real possibility that someone can still be injured by this defective product.

Of particular concern is that chicken nuggets are particularly popular among the sticky-handed youth of our country. It seems most likely that children would be the group who would be at the greatest risk from plastic-laced chicken nuggets. They are the least likely to notice something is amiss with their food and given their propensity to complain about food that is perfectly safe, may have their concerns overlooked by parents.

If your snack or meal is interrupted by a mouthful of plastic, and if (God forbid) that plastic causes you any sort of physical harm--broken teeth from biting it, damaged mouth or tongue from its edges, or any kind of injury to your digestive tract from swallowing it before you realize it's there--then you may be entitled to compensation from Tyson. A recall is only a public acknowledgment that they screwed up, not a "Get Out of Jail Free" card.

The primary theory to be employed against Tyson in a personal injury claim would be that of negligence, based on the idea that the company allowed harmful material to leave their facility in food products, which subsequently hurt one or more consumers. Most states also recognize actions for breach of implied warranty; in the case of food products, that warranty generally is interpreted to mean "fit for human consumption," which plastic elements certainly are not. Claims involving warranty can usually be pursued along all branches of the chain of consumption, be they against processors, retailers, or restaurants. The primary defendant in this nuggets tort would be Tyson itself.

Case law explicitly reinforces the liability idea that a product's manufacturer is beholden to injured consumers in the event that their product can be proven the source of the damages.

In the Restatement of Torts § 402A, the American Law Institute phrased this liability as such:

1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

  1. the seller is engaged in the business of selling such a product, and
  2. it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

2. The rule stated in Subsection 1 applies although

  1. the seller has exercised all possible care in the preparation and sale of his product, and
  2. the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Two major elements need to be established by a skilled products liability attorney in the event that an injury like this occurs: liability and damages.

In terms of liability, there's less ambiguity than there might be if you had been injured in a restaurant setting. There would then be the need to determine exactly when the foreign item appeared in a dish's ingredients. In this Tyson scenario, though, theirs are more or less the only hands on the chicken until it's opened in a consumer's home. Additionally, their issued recall is an acknowledgment of liability, as they are taking responsibility for the presence of the foreign item. Paired with the cited tort definitions above, liability in this instance is fairly clear.

When we examine damages in a claim like this, things get slightly shakier. By virtue of how it operates, products liability law generally awards compensation only to parties who are significantly, demonstrably injured by a faulty product. If the plastic piece from the chicken nugget caused internal damage to a degree that requires surgery or other medical attention, those records can serve as evidence that compensable damages did occur. A plaintiff would be able to pursue damages for medical expenses, lost wages, pain and suffering, and a number of other causes of action.

While we genuinely hope that anyone unlucky enough to find one of these plastic pieces in their nuggets isn't hurt in such a manner, merely discovering you purchased one of the damaged batches is unlikely to produce any compensation in court. Furthermore, injuries that do not require medical attention (sore jaw from accidentally biting down on the plastic, temporary choking hazard without lasting injury) will be unlikely to meet the minimum threshold needed to pursue damages.

I Bit into a Bone Fragment, Not Plastic. Can I Still Sue?

While it is not official or individually-tailored counsel, the answer is "Yes. Anyone can sue anyone for anything." That, however, is just a loose statement on the nature of torts. It does not account for any specifics.

One major concern is jurisdictional, in that different courts apply different rules for this kind of liability (if they have any defined guidelines at all--many states do not). A bone fragment in the product might be subject to the foreign-natural test. Courts generally agree that so-called natural elements found in food items--components that could reasonably be expected in the food products, like pits in cherries or small bones in fish filets--are seldom grounds to pursue litigation. While there is some dispute as to whether these natural elements can reasonably be anticipated in highly-processed foods (like chicken nuggets), a personal injury claim from finding a bone fragment is not generally feasible in states employing this standard.

Other courts make use of the idea of reasonable expectation, which interprets what a consumer might logically expect to be present in a product. Using reasonable expectation, a consumer could allege negligence if they choked on bone fragments from a chicken nugget, since expectations are set by the packaging and advertising that no bones should be present.

Texas tort law actually makes judgments based on reasonable expectation, applying the idea that a consumer isn't necessarily wrong to think that the hazardous pieces of a food would have been removed from its refined or processed form. The relevant cases are Harmon v. S.H. Kress & Co. (1948) and Jim Dandy Fast Foods, Inc. v. Carpenter (1976). The latter case dealt specifically from an injury sustained by a chicken bone that could not reasonable be expected in the finished product.

As an example, one could reasonably expect to find a full complement of bones in a rotisserie chicken purchased from the grocery store, due to the way it is prepared and presented. However, should one opt for chicken nuggets from the frozen food section, it is not unreasonable to believe that the bones would have been entirely removed from the meat during its processing and formation. While it is a far cry from a large chunk of plastic, a wayward bone fragment can still wreak havoc on an unwary diner. In Texas and many other states, if a person suffers serious injury from such unexpected organic material while eating, they may have grounds to seek damages.

If You Are Injured by Unexpected Items in Your Food, Consult an Attorney.

Tyson Foods appears in the news a few times a year for recalls; last year they were investigated for allegedly-abusive practices toward their workers and livestock. While their overall history suggests that they keep a fairly tight leash on safety concerns, that doesn't let them off the hook when things go wrong. Those unexpected plastic pieces could still seriously injure someone.

So far, no one has been reported hurt, and we sincerely hope that trend continues. Should the worst occur, though, we want to help ensure that any injured parties know their rights. Most products liability attorneys, Grossman Law included, are happy to offer consultation for free.