Although the article breaks down why the products liability claim was dismissed, I am going to type out a summary so as to assure that I am understanding the article & its contents in their entirety, & throughout, I will ask questions as they arise.
Jody Gorran, the plaintiff, made the claim that his use of the Atkins Diet was synonymous with the health problems he experienced after just two months on the diet. In particular, a rise in cholesterol, severe chest pains, & an eventual angioplasty¹. Suing for products liability, negligent misrepresentation, & deceptive conduct under Florida law, Gorran claimed the diet is dangerous because it calls for a high-fat, high-protein, low-carbohydrate diet, increasing the risks of coronary heart disease, diabetes, stroke, & certain types of cancer. Further making the claim that the books, food products & nutritional supplements are defective & unreasonably dangerous. Now, as I understand it, if this claim were to have passed, the spreading of risk would have been spread through the entire manufacturing chain, granted each party knew of its defects, correct? Although, the amount of liability would most likely be less severe as you went down the chain. Nevertheless, the defendants after reviewing the claim asked the judge to dismiss in accordance to Rule 12(c) of the FRCP². Following this dismissal, the defendant's found that the plaintiff's books & food products are not defective or dangerous products, thus irrelevant within the meaning of products liability law. The Atkin Diet calls for the consumption of pastrami & cheesecake, which Gorran admitted to consuming large amounts of. & while the consumption of pastrami & cheesecake in mass will undeniably present risks, they are risks the consumer is aware of, or
should be aware of. This is where I found the claim ironic. As Gorran was suing for negligent misrepresentation, he himself was establishing negligent acts, failing to exercise the care a reasonable, prudent person would exercise under the same circumstances. Further yet, the book contains not only a disclaimer on its copyright page stating that the book is not intended to substitute the advice & counsel of a dietary physician, Gorran failed to present facts that would conclude that the food products sold by the defendants were defective as defined by the products liability law. Additionally, the products the plaintiff had consumed &/or bought were not in an altered condition otherwise anticipated by the average consumer, as the average consumer would most likely anticipate the high-fat, high-protein diet would inflate the chances of high cholesterol & the risk of heart disease, as it is what I would believe to be common sense. This next part is what I found the most interesting. The article states that Gorran's claim was deficient to the extent that although the book's tangible qualities would give rise to a products liability action (which I understand, as in my previous post I stated I understood the three areas of defect, design being one of them), the book's intangibles (its ideas & expressions) are not relevant to products as defined by the products liability law.
Under Florida law, a plaintiff must allege that:
- The defendant made a misrepresentation of material fact.
- The defendant was negligent in making the statement because he should have known the representation was false.
- The defendant intended to induce the plaintiff to rely on the misrepresentation.
- Injury resulted to the plaintiff by his justifiable reliance on the misrepresentation.
Gorran claimed the defendants misrepresented the risks of the diet, which I found interesting, as there was already proof that the book contained a disclaimer & that the risks are easily anticipated by average consumers. Further, Gorran claimed the book & website served as advertisements, where I believe the claim would give rise to a defect in marketing, although apparently overlooked by Gorran, & either way the book was found to be noncommercial speech³, rather than an advertisement; a guide rather, to leading a controlled carbohydrate lifestyle, & that the website was purely opinion. Also, the website contains information on how to follow the diet and recommendations for optimizing health and nutrition, thusly negating the defendants misrepresented the risks of the diet, as the information surely was written with the risks in mind, lenient on the idea that with the recommendations, the risks would be lessened. With all this in mind, the plaintiff's claim was dismissed, & the defendant's motions on the pleading was granted. Now, @ the end of the article, it states that the claim was dismissed in its entirety,
with prejudice and costs but without fees. The italicized text is what I am not understanding, so would someone please clear this up for me. Conclusively, I find that the plaintiff was bound to fail from the get go. Certainly after reviewing the claims & the information given from both parties.
¹I Googled this term & found that an angioplasty was a surgical procedure in which a balloon-tipped catheter (thin tube) is inserted into a diseased, narrowed blood vessel; inflation of balloon stretches vessel opening, improving blood flow through it.
²Again, I Googled this phrase & found that the dismissal was called in order for both parties to collect materials relevant to the the motion.
³I was not able to find the meaning of this term. So, it would be appreciated if someone could define it for me.