Case Arising From Ingestion of “Dried, Brittle Mass” From Coke Can Survives Summary Judgment Under “Res Ipsa Loquitur” Theory

Shawn Bickham just wanted a Coke. He got one from the fridge and started drinking. After he had finished about half the can, he “felt something get caught in his throat” which “felt like something poking and something just stuck, lodged [in his throat].”

It turned out that the object was a non-metallic “dried, brittle mass” approximately 0.3 mm by 2.5 mm. After unsuccessful attempts to have it removed, he coughed it up a week later.

Plaintiff sued, alleging negligence and breach of implied warranty. In Bickham v. Coca Cola 14 cv 03341 (decided Nov. 18, 2015), SDNY Judge Briccetti denied defendant’s motion for summary judgment on both claims.


As to his negligence claim, the court held that there was sufficient evidence for plaintiff to establish a prima facie case of negligence under a “res ipsa loquitur” theory.

“Res ipsa loquitur,” explained the court, is “an evidentiary doctrine that allows an inference of negligence to be drawn solely from the happening of the accident upon the theory that certain occurrences contain within themselves a sufficient basis for an inference of negligence.”

The court explained:

Here, there is enough evidence for a jury to conclude the object found its way into the can as a result of defendant’s, rather than a third party’s, negligence. Plaintiff testified he “popped [the can] open” before drinking from it, meaning the top was sealed at the time. And defendant concedes the can had no other openings or perforations. Certainly, if the can was sealed before plaintiff opened it, a jury could “exclude the actions of … third parties as significant causes” of injury.

It further held that “[a]lthough defendant has offered evidence the object was so large it could not possibly have escaped defendant’s filtering process, this evidence merely creates an issue of fact for trial; it does not override plaintiff’s prima facie showing.”

Breach of Implied Warranty

The court also held that plaintiff presented sufficient evidence to create an issue of fact on his breach of implied warranty theory:

[A] reasonable jury could conclude defendant breached the implied warranty of fitness for human consumption. Plaintiff testified the Coca-Cola can from which he drank on January 14, 2013, contained an object large enough to get stuck in his throat, and his throat “was fine until [he] took a soda and started drinking,” at which point it began “feeling funny.” This testimony is sufficient to show the soda was defective and he was injured as a result of its consumption.

Furthermore, plaintiff was not required to present expert evidence to prove that the soda was defective, since “[w]hether or not a can of Coca-Cola should contain dried, brittle masses large enough to become lodged in a person’s throat is not a topic beyond ‘the ken of the average juror.’”

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