·  Legal News, Analysis, & Commentary


Potentially Contaminated Blue Bell Ice Cream is Still on the Menu

— May 11, 2015


Imagine that your favorite creamy dessert suddenly disappeared from stores due to the risk of it killing you. You’d probably be sad, but relieved that you were still alive and unharmed. Not so in Texas, where potentially contaminated Blue Bell ice cream is still on the menu.

Rather than pitch the last two half-gallons of Blue Bell’s latest “Lucky Listeria” flavor, one brave(?) customer keeps spooning it up. According to an interview with Texas TV station KHOU, she nibbles just a wee bit once a week, drawing out the enjoyment until the product is available for purchase again.

As she told the interviewer when asked about the possibility of becoming seriously ill, “I know the different symptoms with Listeria, so I’m hoping that I won’t catch it. It’s more of a faith thing.” To date, her faith, whether in Blue Bell or a higher power, has kept her alive and well.

Public health experts are a little less supportive of her decision. Maybe the part she’s eaten haven’t been contaminated, but that’s no guarantee the rest of the container is safe. This is especially true when one considers that neither the public health experts nor Blue Bell know exactly which products have the potentially lethal “extra ingredient.”

This interview was conducted before the news bomb hit that showed Blue Bell’s products were contaminated with Listeria as far back as 2013 and that, according to the FDA, Blue Bell didn’t lift a finger to change anything. It’s unknown if that knowledge has changed the “super scooper’s” plans.

When I hear stories like this, I have two reactions:

  1. We are all the “captains of our ships and masters of our souls.” If we want to make stupid decisions that could endanger our lives, we’re damned well free to do it.
  2. As Bill Engvall would put it, “Here’s your sign.”

I am a firm believer in #1 above. If somebody wants to eat fast food three times a day, rock on! Just don’t whine to me when you gain 80 pounds and need 17 different prescriptions to keep you alive. Likewise, if I want to pig out on a chewy-gluten-containing pizza, it is my perfect right to do so. However, I do so knowingly and willingly forfeiting my right to complain when I swell up like a Ball Park® frank and become capable of producing sounds akin to moose mating calls.

Responsibility to the responsible, after all. As a lawyer (non-practicing) I am strongly supportive of #2 above when it comes to folks exercising their right to be stupid and then suing someone because they didn’t like the consequences. “Here’s your sign!”

I don’t have the “super scooper’s” name and wouldn’t use it if I did. However, I’m glad that someone at KHOU has it just in case the “scooper” finally hits that delicious pocket of Listeria-laden goodness and does her own version of moose mating calls. Or worse, dies. Because lemme tell ya, this choice the “scooper” made effectively bars her (or her estate) from any recovery against Blue Bell, in my opinion.

Not that I’m on Blue Bell’s side here. I think it’s reprehensible that a company should know of such a dangerous defect in its product line and just blow it off. However, I am very much against people like the “scooper” recovering damages when they willingly blew their own hand off.

The hand. It comes from a case back when I was an L1 (a first-year law student, for those not in the know). It was in the Products Liability unit of Torts II that we first heard about the drunken frat boy who thought it would be funny to hold a firecracker (an M-80, if I recall) in his hand until it went off. “Here’s your sign!”

As you can imagine, it was not funny. He sued the manufacturer for failure to warn. Logic prevailed and he lost. There was a warning on the package and on the firecracker itself telling users to not let the product detonate in their hands. The court held that the manufacturer’s warning could have been in neon lights (or some such other overly obvious method, it’s been quite a few years since I read the case) and it wouldn’t have mattered due to the intoxicated state of the frat boy. It became known as the drunken frat boy defense.

Just as Mr. Frat Boy lost, so too should the “scooper” if she ever gets sick and files. No, she may not be intoxicated, but how much more obvious must a warning be to be effective? The product is no longer being sold. It’s in the news that it’s dangerous. She participated in an interview during which she acknowledged her understanding of the danger and her intent to continue eating the product.

Good luck! “Here’s your sign!”


Stubborn Blue Bell Fan Keeps On Eating Potentially-Contaminated Ice Cream



Join the conversation!