July 9, 1999

Warning: The soup contains MSG

By ANDREW BERGH
Special to the Journal

"Excuse me, waiter, but are those eggs in my omelet?"

Even if you're terribly allergic to eggs, you wouldn't ask a question this dumb at a restaurant -- not with the answer plainly staring you in the face.

But sometimes the ingredients of a meal -- and the potential for an adverse reaction -- aren't quite so obvious. And as shown by Livingston v. Marie Callenders, Inc., the question then arises whether the restaurant is liable for the ensuing injuries to the customer.

The Livingston case involves something you might find in the spice rack near the salt and pepper. I'm talking about monosodium glutamate, or MSG for short. (According to my Webster's, MSG is a crystalline salt used for seasoning foods.)

On July 12, 1993, David Livingston stopped for lunch at a Marie Callenders restaurant in Toluca Lake, California.

Livingston carefully reviewed the menu, as he was both asthmatic and allergic to MSG. His eyes were drawn to the vegetable soup offering, which, the menu promised, was made daily from scratch with only the freshest ingredients.

When it came time to order, Livingston told the waitress he had asthma and asked her if the soup contained MSG. Assured that such wasn't the case, he ordered a bowl and slurped it down.

Unfortunately, the waitress didn't have her facts straight. The veggie soup definitely did contain MSG, and Livingston soon suffered a severe adverse reaction. Eventually diagnosed with MSG Symptom Complex, his symptoms included respiratory arrest, hypoxia, cardiac arrest, and brain damage.

Livingston later sued Marie Callenders in Los Angeles County Superior Court. He claimed, among other things, that the restaurant was strictly liable because the soup was defective and unfit for human consumption. (Under California law, the reasonableness of the manufacturer's conduct is irrelevant in a strict liability claim. Moreover, a product, even one made properly, is "defective" when unaccompanied by adequate warnings about a particular risk.)

But a funny thing happened on the way to the courthouse.

Just before trial was set to begin in June 1997, the judge dismissed all but one of Livingston's claims. To add insult to injury, the man in the black robe did so even though Marie Callenders never moved to dismiss. The judge's only rationale was that there was "nothing wrong" with either the soup or the MSG in the soup.

The customer then went to trial on his remaining claim for negligence.

Unlike the strict liability claim, however, this meant Livingston had to prove that Marie Callenders had somehow acted unreasonably. And although it strikes me that Marie Callenders's waitress acted carelessly by not getting her facts right and misadvising Livingston that the veggie soup had no MSG, the restaurant was eventually absolved by the jury.

(My best guess is that Marie Callenders put on evidence, which would be irrelevant in a strict liability claim, that industry standards don't require customers to be warned about MSG.)

If you think Livingston got the short end of the stick, you'll be happy to hear about the outcome of his appeal.

It's true, said the appeals court, that restaurants may reasonably assume that those with common allergies will already know about them. It is thus unnecessary to warn customers with allergies to eggs, strawberries, or other everyday foods.

But the appeals court felt the trial judge's "nothing wrong" analysis was flawed.

Marie Callenders had a duty to warn, said the court, if its food product contained an ingredient to which a substantial number of the population is allergic, if the customer would not reasonably expect to find it, and if the restaurant knew or should have known the ingredient was present and potentially dangerous to its customers.

As that is a mouthful, let's chew on it a bit.

The court essentially said Livingston had to prove four things in order to prevail. First, that a substantial number of the population is allergic to MSG. Second, that he reasonably did not expect to find MSG in his soup. Third, that Marie Callenders knew or should have known that MSG was one of the ingredients of its veggie soup. And fourth, that the restaurant also knew or should have known about the potential risks of MSG.

Livingston has yet to recover damages, of course, since he still has to convince 12 licensed drivers (i.e., a jury) that each of these propositions is true.

It wouldn't surprise me, however, if the restaurant instead chooses to settle. Given the catastrophic nature of Livingston's injuries, defending against his strict liability claim seems like a recipe for disaster.

Previous columns:

• Grave concerns for the dead, 06-17-1999
• Another roadside distraction, 06-04-1999
• The perils of penitence, 05-21-1999
• Playing dice with your rights, 05-06-1999
• Escaping common sense, 04-15-1999
• The naked truth of Oregon's beaches and wildlife areas, 04-01-1999
• Here's 30 beers; take a hike, 02-25-1999
• Table dancing, 10 feet away, 02-11-1999