Key Points

  • The District of Columbia Court of Appeals reversed the Superior Court's dismissal of a negligent failure-to-warn claim against Trader Joe's over a fish bone in its "Oven Ready Breaded Cod Fillets."
  • Trader Joe's conceded the product had no warning label and admitted it knew bones may be latent in it, leaving only whether the risk was obvious to consumers.
  • Relying on Hochberg v. O'Donnell's Restaurant, the court held that a food's preparation and presentation can change what consumers reasonably expect, so whether the bones were obvious is a jury question.
  • Even if fish bones were an obvious ingredient as a matter of law, whether a lodged bone requiring hospitalization and surgery was an obvious harm is a separate question of fact.
  • The court declined to create a special exception barring recovery for injuries from fish bones latent in fish products and remanded for further proceedings.

The District of Columbia Court of Appeals on Thursday revived a negligence suit against Trader Joe's by a woman who needed surgery to remove a fish bone from her esophagus, holding that a jury should decide whether shoppers would expect bones in the grocer's frozen "Oven Ready Breaded Cod Fillets."

Associate Judge Howard, writing for a three-judge panel, reversed a Superior Court order that had dismissed Taraneh Bahrampour's claim that Trader Joe's negligently failed to warn consumers that the breaded fillets may contain bones. The panel, which also included Chief Judge Blackburne-Rigsby and Associate Judge McLeese, sent the case back to the trial court.

The decision means Trader Joe's cannot end the case at the pleading stage by arguing that every consumer knows fish may contain bones. The court held that two questions belong to a jury. The first is whether the presence of bones in this product was obvious, and the second is whether the harm Bahrampour suffered was obvious.

According to the opinion, Bahrampour ate one of the fillets on May 30, 2023, and a bone lodged in her esophagus. The package described the product as "Par-Cooked Premium Alaskan Cod Fillets, coated with seasoned batter and crispy breadcrumbs," pictured a manufactured fish product and listed "Alaska Cod" as the first ingredient. She went to urgent care and was told to go to an emergency room.

At Sibley Memorial Hospital, an examination found the bone impacted in her esophagus, narrowing the esophageal wall. Surgeons removed the bone, about five-eighths of an inch long, roughly 22 hours after it lodged. Bahrampour claims severe physical and emotional pain, lost wages, continuing physical impairment and medical costs.

She sued in January 2024, pleading duty to warn, negligence, breach of warranty, strict products liability and a violation of the District's Consumer Protection Procedures Act. Superior Court Judge Carl E. Ross dismissed every count except negligence, finding enough facts to show Trader Joe's failed to warn about possible bones.

Trader Joe's then moved for reconsideration of that ruling because, the opinion says, the court held that as a matter of law consumers should reasonably expect bones in any fish product. Bahrampour responded that failure-to-warn cases do not include a reasonable-expectation analysis. In November 2024 the judge granted the motion and dismissed the negligence count.

The appeals court reviewed that dismissal de novo. A failure-to-warn claim requires proof that the seller knew or should have known of a foreseeable risk, failed to warn adequately, and caused the injury. Under the obvious-risk doctrine, a seller owes no warning "when the danger, or potentiality of danger, is generally known and recognized."

Trader Joe's agreed that the fillets carried no warning label and that Bahrampour was injured after eating one, and it admitted it knew bones may be latent in the product. Judge Howard wrote that the only remaining question was whether that risk was obvious to consumers. On appeal, Trader Joe's argued that a July 16, 2024, trial court order had declared fish bones expected as a matter of law, eliminating any need to warn.

The panel divided the obviousness question in two, drawing on a 2007 federal appeals decision, Mills v. Giant of Maryland, that distinguishes unknown ingredients from unknown harms. On the ingredient question, the court relied on its 1971 decision in Hochberg v. O'Donnell's Restaurant, which held that "it is unrealistic to deny recovery as a matter of law if, for example, a person is injured from a chicken bone while eating a sliced chicken sandwich in a restaurant, simply because the bone is natural to chicken."

Hochberg contrasted a bone found while "eating a chicken leg or a steak or a whole baked fish." Judge Howard wrote that the decision suggests a food's preparation can change what a consumer reasonably expects. Bahrampour alleged that she relied on the packaging and believed "oven-ready" and "breaded" signaled a bone-free product.

The opinion acknowledged contrary authority, including a 1987 federal decision in Maryland stating that "Everyone but a fool knows that tiny bones may remain in even the best filets of fish." The panel nonetheless found it "just as plausible that a jury could decide that Trader Joe's had a duty to warn consumers" that the product was a whole fillet that may contain bones. The panel noted that District of Columbia courts have not decided that question as a matter of law.

The claim survived on a second ground, the court held, even if fish bones are an obvious ingredient. Trader Joe's had argued that awareness of bones in a fillet necessarily includes awareness of the harm they pose, because the two are inseparable. The panel agreed that some dangers are inseparable from their source, citing guns, the stomach discomfort milk causes a lactose-intolerant drinker, and rubber exercise bands that snap back.

Temporary discomfort from swallowing a fish bone may be an obvious harm of eating fish, Judge Howard wrote, but "there is no case law that supports finding that a lodged fish bone requiring hospitalization and surgery was an obvious harm of eating a Trader Joe's fish fillet."

"At present, we see no reason to create a special exception that bans consumers from recovery based on injuries stemming from fish bones being latent in fish products," the court wrote. Because the court ordinarily leaves such questions to a jury unless it is clear that no juror could agree, the panel said it could not ignore that "a reasonable person can distinguish between a whole baked fish, a raw fish fillet, and a frozen, oven-ready, breaded fish fillet that appears manufactured."

Mohaimina Haque was on the briefs for Bahrampour. Mariana D. Bravo was among the lawyers on the brief for Trader Joe's.

The appeals court reversed the judgment and remanded the case to Superior Court for further proceedings consistent with its opinion, which addresses only the negligence count.