Just when you thought litigation could not get more gruesome after the Illinois flying body part case. I just came across articles in this 2009 case where the lawyers for Pepsi came up with a novel defense against a product liability claim of an Illinois man who alleged that he found a dead mouse in his Mountain Dew. Impossible, they insist, because our product would have dissolved any mouse in a can. It is the type of legal argument that wins a case and loses a market. It certainly was consistent with the original slogan of the company: “It’ll Tickle Yore Innards!”
Ronald Ball sued Pepsi in 2009 claiming that he opened a can and “spat out the soda to reveal a dead mouse”. He alleges that “[a]fter purchasing said can of Mountain Dew, he opened the can and immediately became violently ill such that he began to vomit.” He then sent the mouse to Pepsi in a mason jar filled with the leftover Mountain Dew from the can. However, when Ball requested the mouse be returned to him for use as evidence in the civil action and for independent testing, he was denied for a number of months and he says it “destroyed” the remains in testing the animal. His complaint states that “[b]y the time Defendant Pepsico eventually did return said evidence to Plaintiff, the evidence was in deplorable condition from having remained saturated in the liquid for an extended period of time and having been subjected to destructive testing by Defendant Pepsico which severely damaged the head, leg and lung of the mouse, such that the evidence is now unfit for further testing.”
However, Pepsi’s lawyers submitted the testimony of experts that “the mouse would have dissolved in the soda had it been in the can from the time of its bottling until the day the plaintiff drank it” — turning it into a “jelly-like substance.”
The Madison Record reports Ball is suing Pepsico as well as the store Shop N’ Save where he purchased the can. He also added Paul Pohlman, the store manager, as a defendant.
In his ten-count suit, he is alleging breach of warranty and spoliation of evidence and is liable for its defective product. He is demanding medical bills, sustained disability, lost wages and experienced pain and suffering.
The defense reminds me to the argument of the lawyers for the late Dominick Dunne in the Condit libel action that he should not be liable because no one really took his “musings” seriously as fact.
I am interested if anyone knows what happened in this case. I could find no mention after reports of a hearing on the motion to dismiss. I am eager to see if the mouse dissolving defense goes down better in court than in the market.
Madison County District Court case number: 09-L-440.