The Agents of SHIELD season finale left us with the ultimate cliffhanger: No, not what the heck happened to Jemma Simmons, but what is the products liability for the dietary supplement company whose fish oil product was tainted by Terrigen Crystals?

It would not take the Center for Disease Control long to see there was something fishy about people turning stone-like and crumbling into pieces.

First thing first: Dietary supplements are governed by the Dietary Supplement Health and Education Act of 1994, which has less regulation then real medications or food. According to the Dietary Supplemental Health and Education Act of 1994 , the “Federal Government should not take any actions to impose unreasonable regulatory barriers limiting or slowing the flow of safe products and accurate information to consumers.” Paragraph 13 of DIETARY SUPPLEMENT HEALTH AND EDUCATION ACT OF 1994, 1994 Enacted S. 784, 103 Enacted S. 784, 108 Stat. 4325, 4326. Moreover, the Act also states in paragraph 14 that “dietary supplements are safe within a broad range of intake, and safety problems with the supplements are relatively rare.” Id.

If the FDA Secretary declares an imminent hazard to public health from dietary supplements, the Secretary “shall promptly” hold proceedings to affirm or withdraw the declaration. Section 4 of Act.

Given the number of people who will either turn in rubble or mutate into a drooling dog that can teleport, that hearing should go fairly quickly with bipartisan freak-outs over safety.

People who watched family members turn into dust would sue the fish oil manufacturer on a products liability claim. Many states follow the Restatement of Torts, 2nd § 402A on strict products liability. The rule states:

402A. Special Liability of Seller of Product for Physical Harm to User or Consumer

(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

(a) The seller is engaged in the business of selling such product, and

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

California summarizes the rule as follows: “[a] manufacturer is strictly liable in tort when an article he places on the market … proves to have a defect that causes injury to a human being.” Greenman v. Yuba Power Products, Inc., 377 P.2d 897, 900 (Cal. 1963).

FishOil_Liability

In a 1978 New Mexico case, a Plaintiff failed to prove a can of 7-Up with unknown blood vessels in it was “unsuitable for its intended purpose, but they also had to prove that it was unreasonably dangerous.” Tenney v. Seven-Up Co., 1978-NMCA-090, ¶¶ 7-8 [92 N.M. 158, 160, 584 P.2d 205, 207]. It is a safe bet this case would have a different result today with “blood anything” in a can of soda.

Surviving family members suing the fish oil manufacturer could argue very effectively the fish oil was defective, because taking a fish oil pill should not kill or mutate someone. However, the fact dietary supplements have less regulation thanks to effective lobbying in the 1990s, the dietary company could argue against strict liability for the deaths, because strict liability is not absolute liability.

There is a huge problem for plaintiffs in suing a dietary supplement company that manufacturers fish oil pills: the plaintiffs would have to prove that the risk of the Terrigen Crystals was knowable from currently available scientific knowledge. Just what safety testing does a dietary supplement company have to do on fish oil? Would any anomalies be detectible with the tests the dietary supplement company currently conducts? The answers to these questions could sink the plaintiffs’ case.

Here is a wild idea: If SHIELD did not have a rogue aircraft carrier outside the military chain of command, perhaps reporting to the Secretary of Defense would have alerted the FDA to have all fish products used for human consumption tested. The area could have been quarantined from all commercial fishing given the fact a genetic WMD was lost overboard.

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.