Top Defense Results: Environmental Law Foundation v. Beech-Nut Nutrition Corp. et. al.

Michele B. Corash and her team at Morrison & Foerster LLP achieved a rare win for food companies last summer.

Her clients, which include Del Monte Corp. and Beech-Nut Nutrition Corp., faced claims that their fruit juice, baby food and canned fruit contained unsafe levels of lead.

Similar lawsuits brought under the state's Proposition 65 often settle because defendants carry the burden of proving lead in their products is within legal limits, which can get pricey, Corash said. The food companies decided to risk it.

"These companies sell a product they believe not only doesn't pose a risk of cancer and birth defects, but actually prevents diseases," she said.

The trial focused on how lead should be measured.

The plaintiff, Oakland-based nonprofit Environmental Law Foundation, argued that Alameda County Superior Court Judge Steven A. Brick should look at lead levels consumed in one day. The Morrison & Foerster team said lead levels should be averaged in a two-week span.

Corash used expert testimony to argue that some of the accused products like grape and peach juices were consumed once a week or once every 12 days, respectively.

Brick agreed with Corash and dismissed the case in August, though he did write the companies failed to meet their burden to prove lead was naturally occurring in their products. Environmental Law Foundation v. Beech-Nut Nutrition Corp. et al., RG11597384 (Alameda Super. Ct., filed Sept. 28, 2011).

The dismissal carries significance because courts weigh in so rarely on Prop. 65, so a result in favor of food companies could discourage future lawsuits, Corash said.

"This case is very important for the entire food industry," she said.

The Environmental Law Foundation has appealed Brick's decision, and the Morrison & Foerster team has filed a cross-appeal on the "naturally occurring" ruling. Environmental Law Foundation lawyer James R. Wheaton could not be reached.

- SAUL SUGARMAN

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