Legal Question in Civil Litigation in California

My 18 year old daughter, who has Celiac disease, recently ate a Post Brand Cereal that is labeled as "gluten free." She has eaten this cereal before, but this was a new box. Within 10 minutes, she had a violent Celiac reaction - severe stomach pain, diarrhea, vomiting. It lasted about two hours. She has had this reaction to gluten in the past, so we know the symptoms. There are test kits available to test for gluten. If did such a test and discovered gluten in this cereal, would we have a case against Post? Not only did the cereal cause a two-hour reaction in my daughter, but when those with Celiac disease eat gluten, it actually kills villi in their small intestines, causing further digestion problems and, over time, can actually lead to colon cancer and other health issues. It is an autoimmune disease, so the process of avoiding gluten is very important. We trusted that a cereal marked in this way was accurate.

My husband also has Celiac (it's a hereditary disease), and he often eats this cereal as well.

Since gluten free labeling is not yet regulated by the Federal Government, I don't know what tactics Post might use to deny liability. Would we have any case here?


Asked on 6/04/11, 11:03 am

1 Answer from Attorneys
Phyllis Voisenat Phyllis Voisenat, Esq.

I'm also on a gluten-free lifestyle, but not for Celiac. I'm sympathetic to your daughter's dietary needs and the severity of the consequences if her diet is not maintained. First, your daughter is 18, so it would be her case. If the box and its contents are tested by a third party and show gluten above 20 ppm, then you would be well supported in making a claim for product liability. Since Post chose to label the product, "Gluten Free" they are warranting that it is. If POST has tested the product and knowingly labeled it gluten free, there may be a case for fraud. However, you also state that your daughter and husband both previously ate the cereal without consequence. This may mean, there was either something else your daughter ate, or the box had cross contamination. I would have to learn more about this to advise on that scenario, for example whether the box disclosed it shares processing with gluten products.

Read more
Answered on 6/04/11, 11:53 am


Related Questions & Answers

More General Civil Litigation questions and answers in California