Amy and Fred Denegri allege that they were a bit surprised at their Florida beach house when Fred complained about a funny taste in his Diet Pepsi and was a wee bit surprised to find a mouse in the can. We can now understand Pepsi’s old slogan: “It’s the Cola”/”Dare for More”
The FDA is now investigating and the diet mouse has been preserved. Pepsi insists that most such cases are either fraud or involve a mouse climbing into a can after it is opened.
While the couple is not planning for a lawsuit, they would have grounds. Under the common law principle of res ipsa loquitur, a jury is allowed to assume negligence where the plaintiffs can show (1) that the injury does not ordinarily occur absent negligence, (2) the object was under the exclusive control of the defendant at the time of the accident or injury, and (3) the injury is not due to the actions of the plaintiff or some other person or cause. The problem will be the second condition. Most factories are designed to move cans rapidly and in a fashion to prevent material from falling into an opening. It is extremely unlikely that a mouse could enter a can in most soft drink factories. Indeed, Justice Breyer once used the “mouse-in-a-coke-bottle” hypothetical in oral argument as an example of frivolous claims, here.
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