Products Liability Law Daily Wrap Up, WARNINGS ISSUES—FOOD AND BEVERAGES—D.C. App.: Consumer sufficiently stated negligent failure to warn claim against Trader Joe’s, (Oct 21, 2026)

By Susan L. Smith, JD, MA

The consumer, who had eaten the company’s breaded fish fillets, required surgery to remove a fish bone lodged in her esophagus.

The District of Columbia Court of Appeals reversed the judgment of the Superior Court and remanded the case of a woman who appealed the trial court’s order granting a grocery company’s motion to reconsider and dismiss the negligence cause of action in her complaint. The woman, who ate breaded fish fillets she purchased from the grocery store, subsequently had surgery to remove a fish bone lodged in her esophagus. She alleged that the grocery store knew that there could be latent bones in its breaded fish fillets and those latent bones presented a foreseeable harm to consumers, creating a duty to warn consumers about the risks. The grocery store, Trader Joe’s Company, Inc., raised the issue of whether the woman’s complaint pleaded sufficient facts to maintain her negligence cause of action for failing to warn consumers that their breaded fish fillets may contain bones that could cause injury to consumers. Trader Joe’s further argued that the matter of law determination in the trial court’s order preempted any need to warn because the order declared that fish bones are expected as a matter of law. After reviewing the woman’s arguments, the appeals court concluded that the woman sufficiently stated a claim for relief that was plausible on its face and that the trial court should have denied Trader Joe’s motion to dismiss. Thus, the court reversed the trial court’s judgment and remanded the case for further proceedings (Bahrampour v. Trader Joe’s Co., Inc., No. 24-CV-1061 (D.C. App. Oct. 15, 2026)).

Background. On May 30, 2023, the woman consumed a fish fillet from a frozen “Oven Ready Breaded Cod Fillets” product that was produced and sold by Trader Joe’s. When she ate the fish fillet, a fish bone became lodged in her esophagus and she immediately went to urgent care. Once evaluated, she was told to go to an emergency room. The emergency room doctors conducted a scan of the esophagus that revealed that a fish bone was impacted in her proximal esophagus, causing narrowing of her esophageal wall. Subsequently, doctors performed surgery to remove the fish bone, which was approximately 5/8 of an inch long.

On January 19, 2024, the woman filed a complaint against Trader Joe’s that included duty to warn, negligence, breach of warranty, strict products liability, and a violation of the District of Columbia Consumer Protection Procedures Act as causes of action. On April 5, 2024, Trader Joe’s filed a Motion to Dismiss all counts of the complaint. The trial court dismissed all counts except the negligence claim (Count I) because there were sufficient facts presented to show Trader Joe’s failed to warn consumers about possible bones. On August 13, 2024, Trader Joe’s filed a Motion to Reconsider the trial court’s decision to deny the dismissal of Count I because the court held that as a matter of law consumers should reasonably expect bones in any fish product. The Superior Court treated the woman’s motion as a Motion for Reconsideration of an Interlocutory Order, and dismissed the woman’s complaint for failure to state a negligent failure to warn claim. On November 17, 2024, the trial court granted Trader Joe’s motion to reconsider and dismissed all of the complaint’s counts. The woman appealed.

Reconsideration motion. The appeals court stated that a motion to reconsider seeks relief from the adverse consequences of the original order on the basis of error of law and not an improper factual basis. The court stated that a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The central question of the appeal was whether there existed a duty to warn consumers of the possibility of fish bones in Trader Joe’s Oven Ready Breaded Cod Fillets; specifically, whether, as a matter of law, the risk of the presence of fish bones in fish fillets is obvious such that no duty to warn applies. The court stated that when a risk is peculiarly foreseeable to the defendant but not the plaintiff, it imposes a duty on the defendant to ensure the plaintiff is aware of the risks. Within the context of food, the risk aspect of the knowledge question splits into two main categories of cases: unknown ingredient and unknown harm cases. Given the dualities, the court burdens factfinders with determining the level of obviousness that pertains to a particular risk.

Court’s analysis. The court stated that the only issues presented were whether as a matter of law it was obvious to consumers that Trader Joe’s breaded fish fillets contained bones and, if so, whether the risk involved with eating food that contains fish bones was also obvious. According to the court, the parties agreed that Trader Joe’s Oven Ready Fish Fillets had no warning label and the woman was injured after consumption of the fish fillet, thus establishing the second and third elements of a negligent failure to warn case. Further, Trader Joe’s admitted it knew fish bones may be latent in its product. Thus, the court stated the only question was whether that risk was obvious to consumers, including the woman.

The court found that at the motion to dismiss stage, the woman did not fail to allege a legally viable claim. Specifically, regarding the unknown-ingredient part of the case, she relied on the product’s packaging and believed that oven-ready and breaded suggested a bone-free fish product. When applying the reasonable expectation test, the court considered that the preparation of the dish or food item presented a factual issue that could change what was reasonable to expect in the product; thus, it determined that the woman’s claim could be viable at this stage. Further, it was plausible that a jury could decide that Trader Joe’s had a duty to warn consumers that its product was a whole fish fillet and may contain bones because it was foreseeable that a person may not know that this specific product, given its presentation, may cause injury.

The court stated that even if the trial court was correct that fish bones, as a matter of law, are an obvious ingredient of fish fillets, the woman presented the additional question of whether the harm from the fish bones was obvious, which raised the unknown-harm aspect of the case. The woman further contended that, even accepting that consumers should reasonably expect to find fish bones in fish fillets, consumers could not reasonably expect to be harmed by fish bones ingested when consuming the fillets, particularly to the extent of hospitalization and surgery. Trader Joe’s argued that awareness of the condition, fish bones in a fish fillet, necessarily included awareness of the harm posed by consuming fish bones because the two were inseparable.

The court stated that whether the harm caused by consuming fish bones was obvious to consumers was another question of fact that should have been left to fact finders. The court concluded that while the harm of temporary discomfort from swallowing a fish bone can be seen as an obvious danger or harm of eating fish, there was no case law that supported a finding that a lodged fish bone requiring hospitalization and surgery was an obvious harm of eating Trader Joe’s fish fillets. Thus, the court stated that these questions were ones that should be determined by a fact finder as a basis for determining whether Trader Joe’s had a duty to warn. Finally, the court concluded that the woman sufficiently stated a claim for relief that was plausible on its face and that Trader Joe’s motion to dismiss should have been denied.

The case is No. 24-CV-1061.

Judge: Howard, J.

Attorneys: Mohaimina Haque (Law Office of Mohaimina Haque, PLLC) for Taraneh Bahrampour. Mariana D. Bravo (Carr Maloney P.C.) for Trader Joe’s Co., Inc.

Companies: Trader Joe’s Co., Inc.

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