TOXIC TORT: Battle of Experts in Starbucks Trial


A lawsuit brought by the Council for Education and Research on Toxics ("CERT"), a.k.a. Raphael Metzger of the Metzger Law Group, against more than 90 coffee roasters and retailers, including Starbucks, Trader Joe’s, and Costco, is in the midst of trial, with competing expert testimony being set forth and challenged. The case entitled Council for Education and Research on Toxics v. Starbucks Corp., et al. [Super. Ct. L.A. County, No. BC435759] alleges that harmful levels of a chemical known as “acrylamide” found in coffee poses a risk of causing cancer in consumers. As an extension, plaintiff argues that defendants are liable for failure to provide sufficient warning and labeling, pursuant to Proposition 65 (“Prop 65”), a law requiring businesses to warn California consumers of the potentially hazardous chemicals contained within their products. This matter is being heard as a bench trial presided over by Hon. Elihu M. Berle.

The defense, led by Morrison & Foerster, LLP attorney James Schurz and Raoul Kennedy of Skadden, Arps, Slate, Meagher & Flom, LLP, argue that acrylamide forms naturally as a part of the roasting process; which is necessary to make coffee ready for consumption. The defense further argues that the quantity of formed acrylamide is infinitesimal, and would require absurd consumption rates to do harm to human beings. In support of this position, the defense put on their expert, Darryl Sullivan, lab director of Covenant, Inc., an entity charged with testing and analyzing the quantity of acrylamide in coffee. Covenant, Inc. results, if accepted, purport to proof that acrylamide levels found in coffee are too low to warrant a warning label, pursuant to Prop 65.

On September 12, 2017, attorney Raphael Metzger cross-examined Sullivan and challenged his company’s findings and credibility. Specifically, he attempted to show that the process by which the sample coffee was analyzed by Covenant, Inc. has not been generally accepted in the science community, and therefore must be flawed. Sullivan agreed with Metzger that the testing and analysis process ultilized by Covenant, Inc. has not been adopted by the Food and Drug Administration (“FDA”); however, he indicated that the process was based on a draft method from the FDA. Judge Berle made his own inquiry as well, asking Sullivan whether the methodology used by Covenant, Inc. had ever been used before. Sullivan indicated it had not. Judge Berle further asked whether there were any peer-reviewed articles on Covenant, Inc.’s findings. Again, Sullivan answered in the negative.

On September 26, 2017, Metzger put on his own expert, Neil Spingarn, in a further attempt to discredit Covenant, Inc.’s findings. Spingarn testified that the method used by Covenant, Inc. to test the sample coffee was flawed. Specifically, he contended that the method was not easy to recreate and failed to hold up across multiple labs and differing environments. Spingarn further contended that the conclusions found in Covenant, Inc.’s analysis was actually mathematically incorrect. James Schurz led cross examination for the defense, and elicited testimony from Spingarn confirming that his own lab has not tested the levels acrylamide in coffee.

The trial is set to resume on October 2, 2017. Should plaintiff prevail, it will attempt to value damages based on the sale of coffee within California for the past thirty (30) years, commencing from the 1986 enactment of Prop 65, for ongoing failure to warn during the entire existence of the law.

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