Pennsylvania Federal Court Allows Customer To Bring Claims Against Grocery And Bakery For Alleged “Mental Anguish And Emotional Distress” Caused By Eating Moldy Bread

By: Carl L. Engel

On December 21, 2022, the U.S. District Court for the Eastern District of Pennsylvania, in the case Kovalev v. Lidl US, LLC, allowed a customer to bring a claim for emotional distress which he alleges he suffered after eating moldy and contaminated bread that had been baked by H&S Bakery and purchased at Lidl stores. The court found that the customer’s claim is supported by Pennsylvania law, because he alleges that his psychological injury was caused by a “physical impact,” i.e., eating contaminated food. However, because the customer does not allege that he was hospitalized, required therapy, or incurred any other hard costs associated with his psychological injuries, it is unlikely that H&S Bakery or Lidl will have to pay substantial damages, even if the customer proves his case at trial. Therefore, the defendants will need to consider whether to offer the customer a payment for the “nuisance value” of the case before legal costs increase, or whether to send a message to other customers that, if they claim that they were psychologically traumatized by bad food, they will be required to prove their injuries at trial.

In his complaint, the customer alleges that, on March 19, 2021, he purchased eight loaves of bread from two separate Lidle stores. After he ate the first loaf of bread, he felt some difficulty breathing and abdominal pain, but did not realize what had caused the symptoms. He then ate from a second loaf of bread and became “violently sick with nausea” and experienced “respiratory issues” that persisted for several days. When he inspected the loaf, he discovered mold of various colors. He also found mold on the loaves that he had not yet opened yet. Almost immediately thereafter, on March 29, 2021, the customer filed his lawsuit in Pennsylvania state court.

Apparently a glutton for both punishment and bread, the customer claims that he purchased four more loaves on June 21, 2021, from a second Lidl location. As he was eating bread from the first loaf, he alleges that he “discovered a large piece of black substance baked inside the bread,” which he describes as a “foreign object and/or dirt, and/or rodent/rat excrement.” Because he had consumed some of the bread without knowing whether he had ingested any of the strange substance, he was “appalled and severely traumatized” and experienced “immediate mental anguish and emotional distress.” Specifically, he says that he was “terrified and placed in extreme fear of his life, safety, and well-being,” and that he experienced sleeplessness and a “loss of enjoyment of life.” He also raises concerns about potential future bodily harm, such as cancer or damage to his organs.

On July 23, 2021, Lidl and H&S Bakery removed the case from Pennsylvania state court to federal court in the Eastern District of Pennsylvania, because the plaintiff and defendants were residents of different states.

On February 3, 2022, the customer filed an amended complaint to include his claims arising from the bread that he purchased on June 21, 2021. In the amended complaint, he brought a total of eleven claims against Lidle and H&S Bakery: (i) strict liability; (ii) breach of express warranty; (iii) breach of implied warranty of merchantability; (iv) breach of implied warranty of fitness for a particular purpose; (v) negligence; (vi) negligence per se; (vii) negligent infliction of emotional distress; (viii) fraud and fraudulent misrepresentation; (ix) reckless endangerment; (x) violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”); and (xi) unjust enrichment. The customer also requested an award of punitive damages. Lidl and H&S Bakery each filed motions to dismiss the claims against them, except for strict liability, breach of implied warranty of merchantability, and negligence.

On December 21, 2022, the court dismissed all the claims addressed in the motions, except for the customer’s claim for negligent infliction of emotional distress. The court found that the customer identifies a “physical impact” as the cause his emotional distress and, therefore, the claim is supported as a matter of Pennsylvania law. Specifically, he alleges that he ingested moldy bread and bread with a strange substance inside, and this contact is what caused his psychological trauma. The court also allowed the customer to pursue punitive damages, because it is possible that a jury would find that the grocery and bakery acted “outrageously or recklessly” in supplying contaminated bread. In making its decision, the court reiterated that when deciding whether to dismiss the customer’s claims, it was required to accept his allegations as true.

Even under this generous standard, however, the court dismissed most of the claims. The claims for fraud, breach of express warranty, and violation of the UTPCPL were all dismissed because the statements on which they were based, i.e., labels that identified the bread as “high quality” and “new & improved,” were statements of “puffery” and opinion, rather than statements of measurable value. The court dismissed the claim for breach of implied warranty of fitness for a particular purpose, because the only purpose for the bread that the customer identified was its ordinary purpose, i.e. consumption as food. The customer’s claims for negligence per se and reckless endangerment both failed because neither one is a recognized right of action under Pennsylvania law. Finally, the court dismissed his unjust enrichment claim because he received the loaves of bread that he purchased.

As a result of the court’s decision, the customer may proceed with four of his claims: strict liability, breach of implied warranty of merchantability, negligence, and negligent infliction of emotional distress. In most cases, it would be significant that the court dismissed the customer’s claim for violation of the UTPCPL, because this is the only claim that would allow him to collect his attorneys’ fees if he were successful. However, because he is proceeding pro se, he is not incurring attorneys’ fees in connection with the lawsuit and, therefore, will not have fees to recover at its end even if he were allowed to collect them from defendants.

Therefore, if he is successful at trial, the customer’s damages will be limited the cost of the bread, medical costs related to his physical illness, and costs for therapy for his mental anguish. Because the customer does not claim to have been hospitalized or to have sought therapy for his alleged psychological trauma, it is unlikely that his damages would amount to more than the cost of the twelve loaves of bread that he purchased. Lidle and H&S Bakery, therefore, will need to consider whether to pay the customer a settlement for the “nuisance value” of having to litigate such a trivial case, or whether to send a message to other customers that they will not reward lawsuits for psychological distress arising from bad food unless the customer proves the alleged emotional trauma in front of a jury.