Judgment in favor of a Bahia family against Coca Cola

At noon on January 29, 2006, RLR, a woman from the Noroeste neighborhood, went to buy some drinks from a kiosk near her home. She carried, among other soft drinks, a 1.25-liter Coca Cola, with a glass container. When they returned, they took her, her husband and four children. Most suffered from almost immediate stomach symptoms and upon closer inspection of the bottom of the bottle they discovered that there was a piece of a mosquito coil. They went urgently to the guard at the Hospital Privado del Sur and the pediatrician Alicia Torres treated two of the boys and diagnosed them with a compatible, toxic (pyrethroid) condition, and one of them had to be hospitalized for dehydration. The rest had diarrhea. The family went to the OMIC, to the municipal Bromatology department and ended up suing Coca Cola Polar Argentina, for damages, by two of the boys, Civil and Commercial Court No. 5, despite the company’s refusal, he ruled last year in favor of compensating the two minors with 5,000 pesos each and another 500 individual pesos for the rest of the group. In total, a penalty of 12 thousand pesos plus interest at the pure rate of 4% per year, from the event and until the final judgment. Coca Cola appealed and now the Civil and Commercial Chamber, Room I, ratifies the ruling, although in a divided manner. Judges Guillermo Ribichini and Fernando Kalemkerian voted in that sense, and in a minority, Marcelo Restivo did. The bottling company denied the charges. She assured that the consumption relationship had not been accredited due to the lack of the respective ticket and that there were no eyewitnesses, which made it impossible to demonstrate the intake. He also explained the stamping mechanism of the code of the cover – which in this case was partially erased – and opined that it could have been intentionally suppressed, since that record does not deteriorate over time. Finally, she affirmed that, due to the mechanical form of filling, “it becomes impossible” for a foreign body to end up inside a bottle. The dissenting vote The Chamber confirmed the ruling, although in a divided manner. Restivo, in the minority vote, considered that it was “the burden of the plaintiffs” to determine that the container contained a foreign body prior to its opening and that there is no conclusive evidence to that effect. He added that Dr. Torres did not see them consume the product and that there was no expertise in the content either. The study of industrial engineer Ricardo Monserrat was also taken into account, who recognized that a lid can be replaced through a heat process and with a particular tool and that the introduction of foreign elements is not feasible in filling containers. , determining Ribichini and Kalemkerian, on the other hand, confirmed the first instance ruling when considering that the doctor’s testimony “was decisive”. A link between the gastrointestinal symptoms of the two minors and the intake of the soda arises from their statement, they argued. They said that the health professional was not guided only by what the patients told her, but, not knowing the source of the discomfort, one of the complainants brought and showed him the bottle with the spiral at the bottom. It is not something that only the complainants referred, the doctor saw it, the two judges explained. “In any case, what is certain, concrete and indisputable is that the bottle of soda from which they had drunk had a foreign body inside it, which both the actors and the doctor who attended them agreed that it was a spiral of those used to drive away these insects, “they said.” No hint of fabulation “They also warned that” there is not the slightest hint “of any indication of fraud or fabulation on the part of the affected family. “If to the plausible account of facts formulated by the plaintiffs around the intake of the drink, the verification by the intervening doctor of the gastrointestinal discomfort associated with that consumption is added, and that of the existence of a strange element found inside the packaging involved, it seems clear that the producer of that must compensate the logical and presumable moments of anxiety experienced by the plaintiffs, “they concluded. The lawsuit is not closed, because Coca Cola has already announced that it will go to the Buenos Aires Supreme Court of Justice and, if necessary, will go to the National Court. In any case, the family has already obtained two rulings in its favor.