Judge Briccettii yesterday denied Coke’s summary judgment motion in a case brought by a plaintiff who claims to have been injured by swallowing a “dried, brittle mass” found in a Coke can.  He found that the plaintiff could prove his case under a res ipsa loquitur (the thing speaks for itself) theory:

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.

Coke’s expert is prepared to testify that “the object was so large it could not possibly have escaped defendant’s filtering process,” but Judge Briccetti found that the expert’s testimony  “merely creates an issue of fact” for trial.