Products Liability Law Daily Wrap Up, DESIGN AND MANUFACTURING DEFECTS—FOOD AND BEVERAGES—E.D.N.Y.: Chocolate suppliers denied dismissal of consumer’s claims in contamination case, (Oct 9, 2026)

By Pankhuri Bhatnagar, B.A. LL.B.

The consumer sufficiently pleaded that the recalled chocolates she consumed were defective and caused her hospitalization and subsequent aneurysm.

In an action brought against a chocolate’s manufacturer and its distributor by a consumer who was allegedly hospitalized due to consumption of contaminated chocolate bars, a federal district court in New York denied the suppliers’ motion to dismiss. The consumer plausibly alleged showed that the product was unfit for human consumption and alleged a manufacturing defect based on the products’ FDA recall, evidence of Salmonella at the manufacturing facility, and food safety violations noted by the Health Ministry. She also adequately connected the chocolates to her injuries through the timing of consumption, symptoms, hospitalization, diagnosis, and a treating physician’s opinion linking the aneurysm to Salmonella-contaminated chocolate (Serghie v. Strauss Group, Ltd. et al., No. 25-CV-02611 (NRM) (E.D.N.Y. Sept. 29, 2026)).

Background. A woman was a regular consumer of “Pesek Zman chocolate bars” and purchased them frequently from 2018 until March 2022. The bars were manufactured by Strauss Group Ltd. and distributed by Kenover Marketing Corp. d/b/a Kayco in New York. The consumer bought two boxes through Amazon on February 13 and March 1, 2022, and consumed the bars in the second or third week of March. She subsequently experienced abdominal pain, nausea, chest pain, fever, and other symptoms consistent with severe Salmonella infection. She was hospitalized twice on March 29 and 30 and diagnosed with a splenic artery aneurysm on March 31. On April 28, 2022, the FDA announced a recall of Elite branded chocolate products made by Strauss and distributed by Kayco because they could be contaminated with Salmonella. The recall warned that Salmonella infection could, in rare circumstances, cause arterial infections and infected aneurysms.

The Israeli Ministry of Health also identified numerous violations at Strauss’s facility in Israel, including maintenance work performed while chocolate was being produced nearby, the absence of a food-safety director, and a pigeon infestation in the manufacturing area. Amazon notified the consumer on May 3 that both of her chocolate orders had been recalled. However, she had consumed additional bars on May 1 and 2, experienced severe symptoms, and returned to the emergency room on May 6 and 13. A gastroenterologist later diagnosed her with Salmonella infection, splenic artery aneurysm, and irritable bowel syndrome and opined that, to a reasonable degree of medical certainty, the aneurysm was caused by Salmonella-contaminated Pesek Zman chocolate. She sued Strauss and Kayco (together, suppliers) under New York law for strict products liability, negligence, and breach of implied warranty. The suppliers moved to dismiss.

Manufacturing defect. The companies’ reliance on the manufacturing defect standard laid out in Colon v. BIC USA, Inc., 199 F. Supp. 2d 53, 85 (S.D.N.Y. 2001) was misplaced as that case involved a summary judgment motion rather than a motion to dismiss. The court clarified that at the pleading stage, a consumer need not allege technical details of the manufacturing process, McKenzie v. Perrigo, 2023 WL 5977297, at *2 (S.D.N.Y. Sept. 14, 2023), and circumstantial evidence can be used to plead a defect where the product cannot be inspected. Here, the woman sufficiently pleaded a defect because the FDA had recalled all relevant Strauss products for possible Salmonella contamination, and Amazon specifically notified her that the bars she purchased had been recalled. While FDA recall notices may not constitute admissible evidence, the complaint included corroborating facts such as the Israeli Health Ministry’s findings of numerous violations in Strauss’ facility including a pigeon infestation (pigeons are a known source of salmonella contamination), absence of a food safety director, and continuation of production while maintenance work was being performed. Accordingly, the woman adequately pleaded that the subject chocolates were defective.

Proximate cause. New York requires the alleged defect to be a substantial factor in producing the injury, but a consumer need not eliminate every possible alternative cause at the pleading stage per Locust Valley Water Dist. v. Dow Chem. Co., 465 F. Supp. 3d 235, 240 (E.D.N.Y. 2020). The court found the causal allegations sufficient. The consumer became ill after eating the recalled chocolates, was hospitalized shortly afterward and diagnosed with a splenic artery aneurysm, stopped eating the chocolates, and became severely ill again after consuming them on May 1 and 2. Her gastroenterologist also diagnosed Salmonella and expressly linked the aneurysm to the contaminated chocolate. The court noted that similar claims have survived on thinner allegations, including Porrazzo v. Bumble Bee Foods, LLC, 822 F. Supp. 2d 406, 415 (S.D.N.Y. 2011), where the timing between tuna consumption, elevated mercury levels, and symptoms supported causation. The consumer thus adequately alleged that the chocolates were a substantial factor in her injuries.

Implied warranty. The implied warranty claim also survived. Under New York law, food intended for human consumption carries an implied warranty that it is fit for consumption and free from harmful substances when it leaves the manufacturer’s control per Bickham v. Coca Cola Refreshments USA, Inc., 2015 WL 7301078, at *7 (S.D.N.Y. Nov. 18, 2015). Chocolate contaminated with Salmonella is plainly unfit for human consumption, so the companies’ argument concerning the consumer’s “particular purpose” did not warrant dismissal. The motion to dismiss was denied in full.

The case is No. 25-CV-02611 (NRM).

Judge: Morrison, N.

Attorneys: Giuseppe Lobrutto (Lobrutto Law, PC) for Camelia Serghie. Craig Giometti (Dentons U.S. LLP) for Strauss Group Ltd.

Companies: Strauss Group Ltd.

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