At Walmart, Fresh Express promise an “organic mix” and it delivered more than it advertised. A customer in Florida found a bat inside of its Organic Marketside Spring Mix. It was not this bat but it was reportedly a bat. What is interesting from a torts perspective since two people started to eat the lettuce. That raises a question of negligent infliction of emotional distress.
Here is the notice from the Food & Drug Administration:
| Date | Brand Name | Product Description | Reason/ Problem | Company |
|---|---|---|---|---|
| 04/08/2017 | Marketside | Organic Spring Mix | Potential to contain bat body parts (minimal risk of potential rabies contamination) | Fresh Express |
If that seems fairly mild, it is still better than the notice of Fresh Express Marketplace, which referred only to “extraneous animal matter” in its notice while adding that it was only “a single container of the salad.” Of course, it is better than just relabeling at “Bat-avia lettuce” with the slogan “you can’t say Batavia without saying bat.”
Not only could the customers sue for negligent infliction, there is a basis for intentional infliction of emotional distress if there is a showing of recklessness. The elements are (1) the defendant must act intentionally or recklessly; (2) the defendant’s conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress. There can also be strict liability in some cases for food poisoning or contamination.
Being sold at Wal-Mart is a product warning in itself.
Besides, what kind of wonk came up with the label“Organic Marketside Spring Mix”? That alone sounds so corporate you have to be suspicious of how organic and healthy it actually is. A dead rat in the gutter is organic and who wants a rodent much less a bat.
Walmart is the biggest retailer in the world. Companies will do anything to get their products on the shelves. Don’t kid yourself.
Deteriorating bat would have given off gases which would have inflated the bag. One source said the bat was desiccated but since this product is mechanically chopped and also goes through a color separation process that a bat in any state would have made it into a bag are very, very unlikely. Most people don’t understand that color scanners are used to identify and remove unripe or bad products. Verdict, Insurance Fraud.
Just a little info that may, or may not, influence your opinion. This specific type of salad mix, from this specific company, does not come in a bag. Instead, it comes in a clear, plastic box. As such, whatever gas or gases that you believe would have impacted the malleable, plastic bag would not, necessarily, have impacted the rather substantial plastic box used to package this salad mix. I know. I buy it all the time. Correction: I used to buy it all the time.
How do we know whether or not the customer is telling the truth? I have purchased packages of Fresh Express foods, and I could immediately determine if a bat was in the package as soon as I picked up the package.
I think that defendants should claim the bat was a natural additive and the customers are lucky they were not charged extra.
This is a necessary part of our society. You buy a lottery ticket and you have a one in a gazillion chance of becoming a gazilionaire. You buy a package of lettuce and you have a similar chance of getting whatever the lawyers leave.
OK. Aside from all the screaming involved, this event would have exposed anyone eating the salad in this package, to bat bodily fluids during the manufacturing process (recall that only one scoop had the actual bat carcass but that was scooped out of a larger container or conveyer of lettuce, so more than that one container was contaminated).
1. 10% of bats, on average, test positive for rabies. Sure, this is “low risk”, but how would a healthy bat end up dead in a salad? It’s rather difficult to catch a healthy wild bat, and they don’t sleep in lettuce fields nor in noisy manufacturing plants.
2. Bat guano is often contaminated with a fungus that can cause damage and scarring to the cornea, as well as the lung disease histoplasmosis. It seem likely that the little bat would have defecated whilst being packaged as a salad. Typically, the guano has to age before it can host significant numbers of histoplasma, so perhaps the largest risk would be E. coli.
3. Bats in Africa are vectors for Ebola. Was this salad grown domestically or abroad?
4. Bats can carry Marburg virus, which, like Ebola, kills about 90% of those humans infected. It’s another hemorrhagic fever found in Africa, where the population is completely screwed when it comes to plagues. In this case, it seems unlikely that the lettuce was grown in Africa.
5. Bats can carry the Nipah virus, which causes encephalitis. Southeast Asia.
6. Bats can carry Hendra virus, but those are usually the cute flying fox fruit eating bats of Australia (like the photo in the headline above).
So, realistically, the greatest risk is rabies and E coli and possibly parasites. Obviously the people who ate the salad will have to get PEP rabies shots, which have absolutely terrible neurological side affects, sometimes permanent. But what a horrible choice for everyone who consumed salad from the same lot. Do they roll the dice and hope that rabid bat blood did not taint their salad, or do they go with the PEP shots just in case, even though their package did not contain dead bat?
I love bats. They are crucial for our environment. I think baby bats are so cute, and I adore flying foxes. That said, they belong in the wild, and you have to assume that they can carry disease unless they are pets and receive veterinary care. I personally encountered a rabid bat at a park when I had my son with me as a baby. There was this bat flying in broad daylight, running into the roof of the gazebo where I was sitting with my friends. They thought it was funny, and that it was just lost and stunned by the light. But I told them it was probably rabid and that bats navigate by echolocation, not sight. If you disturb bats from a cave they fly correctly and find shelter; they don’t bumble around. It was flying right above our heads. I took my son home and called animal control. Sure enough, they uncovered a nest where a great many bats tested positive for rabies. They couldn’t be sure if they found the exact one, but they did find rabid bats at that park. Such a close call was especially scary because my son was so little. I cannot imagine what those who receive this notice, having ate that batch of salad, must be going through.
Sorry, it’s a bat colony not a nest.
“Obviously the people who ate the salad will have to get PEP rabies shots, which have absolutely terrible neurological side affects, sometimes permanent.”
Don’t they have the bat carcass? Is so, can’t they just test the carcass and take the series of shots only if the bat is infected with rabies?
I also wonder about the rate of infection when the route of infection is through the gastrointestinal tract – not a risk I would want to take, but still may be lower than the rate of infection when saliva is injected through a bite.
Walmart needs to invoke Sicilian retribution.
Probably fake. Just like with hate crimes, there are so many fake incidents of disgusting things found in food that I’m always sceptical. The salad would have been sorted and mixed and washed and packaged and weighed. At any of these steps it’s hard to believe nobody noticed a bat in there. Sounds more like somebody is trying to cash in, but going up against Walmart isn’t the best idea.
Perhaps a disgruntled employee placed the bat in the bag. Or an anti Walmart activist =)
You guys are way out of line here.
Who says a bat cannot be organic?
The label did not say vegan Marketside Spring Mix.
Just one more example of delicious, nutritious products provided by our wonderful free market food distribution system.
Walmart should hire some crony to say that he put the bat in there as a joke and that he did not work for Walmart and had no connection. Thus Walmart was not at fault for this fart.
Extra damages: plaintiff was vegan.
So, would Batman eat bat salad? I guess the Food & Brand Lab at Cornell won’t bat an eye before rethinking the superhero they chose for this campaign:
“Cornell study shows that children can be primed to order healthier fast food items merely by thinking about what their favorite superhero would eat. Would you like a fun way to convince children to eat more healthy foods? Ask them what would Batman eat!
http://foodpsychology.cornell.edu/discoveries/what-would-batman-eat
Only in his Bruce Wayne form!
Try to buy local. Even in big cities you can find fresh foods. Stay away from the monster stores, they suck the life out of everything. And good luck trying to sue Walmart.
I pulled out a bag of frozen green beans from my freezer. I bought it at a major grocery chain. It says Product of China. What?! Can we not stock our grocery stores with green beans from USA? I don’t want my green beans processed in China. So, yes, buy local and know where your food comes from.
Disturbing. But to prove it now days in court, would you not have to be filming opening the bag and finding it? How does one prove it was not placed in the bag by the plaintiff?
This is a good point, and how did it all proceed this far without some sort of proof?
Testimony can be sufficient proof. It all depends on whether or not the witness is deemed credible by the trier or triers of fact.
Did I spell “back” wrong? Or did the bats do it?
It is a “bat out of Hell”. They find their way to planet Earth and sneak into places which will annoy humans. It is God’s Wiill. If you sue, they will come bat and get you too.
Will I’m going with the magic Amazon monkey tree frog dish. Mateses Indian shaman shows how to prepare it.
LOL a nice comparable transition. Could be the start of a new cookbook titled
Natures Path to Nutritional
Cooking.
Well ugh. Fresh Express brand is carried pretty widely, at least in California… not just Walmart. How odd…the bagged mixed salad greens should have gone thru sorting and, in the field depending on grow site, up to triple washing. The only thing I can say about Walmart is during the two years they delivered to addresses in San Francisco, I only ordered items that never had been alive or planted. I once gingerly ordered lemons, seems maybe safe enough, but they did not look very good and I tossed them.
Crap. I buy that stuff all the time.
Oh craaaaap! I do too! Um, was the Florida contaminated batch distributed nationwide, including, for example, CA?
No, it’s distribution area is the southeast US, and only those sold at WalMart.
I know, right, me too!!! I am permanently switching to Publix salad , I won’t be able get this outta my head, if it was anything other than a animal i could get over it but a bat..umm no..ack!