UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DARRYL ALEXANDER and 

EDNA ALEXANDER, 

 Plaintiffs, Case No. 2:09-cv-12303 

v. 

DEL MONTE CORPORATION, 

a Delaware Corporation, and 

THE KROGER COMPANY, an 

Ohio Corporation, 

 Defendants, 

_________________________________/ 

MARK F. MILLER (P36404) 

RONALD F. DeNARDIS (P23268) 

DeNardis, McCandless & Miller, P.C. 

Attorneys for Plaintiffs 

10 S. Main Street, Suite 307 

Mt. Clemens, MI 48043 

(586) 469-9191 

F (586) 307-8397 

_________________________________/ 

COMPLAINT AND DEMAND FOR TRIAL BY JURY

 There is no other civil action between these parties arising out of the 

same transaction or occurrence as alleged in this Complaint pending 

in this Court, nor has any such action been previously filed and 

dismissed or transferred after having been assigned to a Judge. 

    ________________________________________________________  

                 Mark F. Miller (P36404), Attorney for Plaintiffs 

 DARRYL ALEXANDER and EDNA ALEXANDER, by their attorneys, DeNardis, 

McCandless & Miller, submit the following Complaint against the Defendants. 

2:09-cv-12303-PJD-PJK Doc # 1 Filed 06/15/09 Pg 1 of 11 Pg ID 1
2

GENERAL ALLEGATIONS

 1. Plaintiff Darryl Alexander and Edna Alexander are residents of Southfield, 

Michigan. 

 2. Defendant Del Monte Corporation is a Delaware Corporation with its principal 

place of business in California. 

 3. Defendant Del Monte Corporation does business in, among other places, the State 

of Michigan. 

 4. Defendant The Kroger Company is an Ohio corporation with its principal place of 

business in Ohio. 

 5. Defendant The Kroger Company does business in, among other places, the State 

of Michigan. 

 6. This action arises out of an incident that occurred in Oakland County, Michigan 

on or about April 19, 2008. 

 7. This Court has jurisdiction pursuant to 28 U.S.C. §1332 because there is complete 

diversity of citizenship among the parties. 

 8. The amount in controversy is in excess of $75,000 exclusive of costs, interest and 

attorney fees. 

 9. On or about April 19, 2008, Plaintiff Darryl Alexander was injured while 

attempting to open a jar of Del Monte Orchard Select Premium Mixed Fruit (UPC Code 0-

249840-9). 

 10. The subject Del Monte Orchard Select Premium Mixed Fruit was purchased at the 

Kroger Supermarket located at 19855 12 Mile Road, Southfield, Michigan. 

2:09-cv-12303-PJD-PJK Doc # 1 Filed 06/15/09 Pg 2 of 11 Pg ID 2
3

 11. At all times relevant to this action, the aforesaid Kroger Supermarket was 

operated by Defendant The Kroger Company. 

 12. The subject Del Monte Orchard Select Premium Mixed Fruit (“the mixed fruit”) 

was produced, processed, prepared, packaged, distributed, delivered and sold by the Defendants. 

 13. While Plaintiff Darryl Alexander attempted to open the jar of the mixed fruit, the 

lid exploded from the jar and struck Plaintiff Darryl Alexander in the face and eye. 

 14. As a result of being struck by the jar lid, Mr. Alexander suffered severe injuries, 

including, but not limited to: 

 a. Injuries to his head and face; 

 b. Subconjunctival hemorrhage; 

 c. Decreased visual acuity; 

 d. Traumatic optic neuropathy; and 

 e. Other serious and permanent injuries. 

COUNT I – VIOLATION OF THE MICHIGAN FOOD LAW

 15. The Plaintiffs incorporate by reference the allegations in the preceding 

paragraphs. 

 16. The mixed fruit produced, processed, prepared, packaged, distributed, delivered 

and sold by the Defendants is “food” as defined by the Michigan Food Law of 2000 (MCL 

289.1107, et seq). 

 17. The mixed fruit produced, processed, prepared, packaged, distributed, delivered 

and sold by the Defendants was improperly packaged, unstable and/or contained a deleterious 

2:09-cv-12303-PJD-PJK Doc # 1 Filed 06/15/09 Pg 3 of 11 Pg ID 3
4

substance or improper mixture of substances that rendered it injurious to health and is considered 

“adulterated” as defined by the Michigan Food Law of 2000 (MCL 289.1105, et seq). 

 18. The mixed fruit produced, processed, prepared, packaged, distributed, delivered 

and sold by the Defendants was packed in a container that was defective or was composed of a 

deleterious substance that rendered it injurious to health such that the mixed fruit is considered 

“adulterated” as defined by the Michigan Food Law of 2000 (MCL 289.1105, et seq). 

 19. The Defendants owed a statutory duty to the Plaintiffs and to the public to refrain 

from manufacturing, selling, delivering, holding or offering for sale adulterated or misbranded 

food pursuant to the Michigan Food Law of 2000 (MCL 289.5101). 

 20. The Defendants violated their statutory duty owed to the Plaintiffs and the public 

by manufacturing, selling, delivering, holding and offering for sale adulterated food; specifically, 

the mixed fruit that was injurious to health. 

 21. As a result of the Defendants’ violation of their statutory duty, Mr. Alexander 

suffered severe and permanent injuries including, but not limited to: 

 a. Injuries to his head and face; 

 b. Subconjunctival hemorrhage; 

 c. Decreased visual acuity; 

 d. Traumatic optic neuropathy; and 

 e. Other serious and permanent injuries. 

 22. In addition to the injuries identified above, Mr. Alexander has suffered, and 

continues to suffer, pain, psychological harm, humiliation, anxiety, anguish, medical expenses, 

lost wages and lost wage earning capacity as a result of the violation of the aforesaid statutory 

duty by the Defendants. 

2:09-cv-12303-PJD-PJK Doc # 1 Filed 06/15/09 Pg 4 of 11 Pg ID 4
5

 WHEREFORE, Plaintiffs Darryl Alexander and Edna Alexander respectfully request 

judgment against the Defendants in whatever amount above $75,000 that they are found to be 

entitled, plus costs, interest, attorney fees and all other remedies provided by the Michigan Food 

Law of 2000. 

COUNT II –BREACH OF UCC WARRANTY

 23. The Plaintiffs incorporate by reference the allegations in the preceding 

paragraphs. 

 24. The mixed fruit produced, processed, prepared, packaged, distributed, delivered 

and sold by the Defendants falls within the definition of “goods” as defined by the Uniform 

Commercial Code (MCL 440.2105, et seq). 

 25. The Defendants impliedly warranted, pursuant to the Uniform Commercial Code 

(MCL 440.2314, et seq), through their advertising, labeling on package and in other ways, that 

the mixed fruit was of good and merchantable quality, was properly packaged, was safe and fit 

for human consumption. 

 26. The Defendants breached the aforesaid warranty because the mixed fruit was 

improperly packaged, unstable and/or contained a deleterious substance or improper mixture of 

substances that rendered it injurious to health. 

 27. As a result of the Defendants’ breach of warranty, Mr. Alexander suffered from 

severe and permanent injuries, including, but not limited to: 

 a. Injuries to his head and face; 

 b. Subconjunctival hemorrhage; 

 c. Decreased visual acuity; 

2:09-cv-12303-PJD-PJK Doc # 1 Filed 06/15/09 Pg 5 of 11 Pg ID 5
6

 d. Traumatic optic neuropathy; and 

 e. Other serious and permanent injuries. 

 28. In addition to the injuries identified above, Mr. Alexander has suffered, and 

continues to suffer, pain, psychological harm, humiliation, anxiety, anguish, medical expenses, 

lost wages and lost wage earning capacity as a result of the violation of the aforesaid statutory 

duty by the Defendants. 

 WHEREFORE, Plaintiffs Darryl Alexander and Edna Alexander respectfully request 

judgment against the Defendants in whatever amount above $75,000 that they are found to be 

entitled, plus costs, interest, attorney fees and all other remedies provided by the Uniform 

Commercial Code. 

COUNT III—BREACH OF WARRANTY

 29. The Plaintiffs incorporate by reference the allegations in the preceding 

paragraphs. 

 30. The Defendants impliedly warranted, pursuant to the Common Law of the State 

of Michigan, that the mixed fruit was of good and merchantable quality, was properly packaged, 

was safe and fit for human consumption. 

 31. The Defendants breached the aforesaid warranty because the mixed fruit was 

improperly packaged, unstable and/or contained a deleterious substance or improper mixture of 

substances that rendered it unsafe and injurious to health. 

 32. As a result of the Defendants’ breach of warranty, Mr. Alexander suffered severe 

and permanent injuries including, but not limited to: 

2:09-cv-12303-PJD-PJK Doc # 1 Filed 06/15/09 Pg 6 of 11 Pg ID 6
7

 a. Injuries to his head and face; 

 b. Subconjunctival hemorrhage; 

 c. Decreased visual acuity; 

 d. Traumatic optic neuropathy; and 

 e. Other serious and permanent injuries. 

 33. In addition to the injuries identified above, Mr. Alexander has suffered, and 

continues to suffer, pain, psychological harm, humiliation, anxiety, anguish, medical expenses, 

lost wages and lost wage earning capacity as a result of the breach of warranty by the 

Defendants. 

 WHEREFORE, Plaintiffs Darryl Alexander and Edna Alexander respectfully demand 

judgment against the Defendants in whatever amount above $75,000 that they are found to be 

entitled, plus costs, interest, attorney fees and all other remedies provided by law. 

COUNT IV-NEGLIGENCE

 34. The Plaintiffs incorporate by reference the allegations in the preceding 

paragraphs. 

 35. The Defendants owed a duty to the Plaintiffs and to the public to use reasonable 

care to properly produce, process, prepare, package, distribute, deliver and sell the mixed fruit. 

 36. The Defendants owed a duty to the Plaintiffs and to the public in general to 

produce, process, prepare, package, distribute, deliver and sell the mixed fruit in accordance with 

applicable law, codes, regulations and industry standards. 

 36. The Defendants breached the aforesaid duties by various acts and omissions 

including, but not limited to, producing, processing, preparing, packaging, distributing, 

delivering and selling mixed fruit that was unsafe, improperly packaged, unstable and/or 

2:09-cv-12303-PJD-PJK Doc # 1 Filed 06/15/09 Pg 7 of 11 Pg ID 7
8

contained a deleterious substance or improper mixture of substances that rendered it injurious to 

health. 

 37. As a result of the Defendants’ negligence, Mr. Alexander suffered severe and 

permanent injuries including, but not limited to: 

 a. Injuries to his head and face; 

 b. Subconjunctival hemorrhage; 

 c. Decreased visual acuity; 

 d. Traumatic optic neuropathy; and 

 e. Other serious and permanent injuries. 

 38. In addition to the injuries identified above, Mr. Alexander has suffered, and 

continues to suffer, pain, psychological harm, humiliation, anxiety, anguish, medical expenses, 

lost wages and lost wage earning capacity as a result of the negligence of the Defendants. 

 WHEREFORE, Plaintiffs Darryl Alexander and Edna Alexander respectfully demand 

judgment against the Defendants in whatever amount above $75,000 that they are found to be 

entitled, plus costs, interest and attorney fees. 

COUNT V – MICHIGAN CONSUMER PROTECTION ACT

 39. The Plaintiffs incorporate by reference the allegations in the preceding 

paragraphs. 

 40. The Defendants are engaged in trade or commerce as defined by the Michigan 

Consumer Protection Act (MCL 445.902, et seq). 

 41. Mr. Alexander is a person as defined by the Michigan Consumer Protection Act 

(MCL 445.902, et seq). 

2:09-cv-12303-PJD-PJK Doc # 1 Filed 06/15/09 Pg 8 of 11 Pg ID 8
9

 42. Mr. Alexander is a person who suffered loss as defined by the Michigan 

Consumer Protection Act (MCL 445.911, et seq). 

 43. By engaging in the conduct previously alleged, the Defendants violated the 

Michigan Consumer Protection Act including, but not limited to, the conduct identified in MCL 

445.903(I)(e)(g)(p)(S) and (CC). 

 44. As a result of the Defendants’ violation of the Michigan Consumer Protection 

Act, Mr. Alexander suffered severe and permanent injuries including, but not limited to: 

 a. Injuries to his head and face; 

 b. Subconjunctival hemorrhage; 

 c. Decreased visual acuity; 

 d. Traumatic optic neuropathy; and 

 e. Other serious and permanent injuries. 

 45. In addition to the injuries identified above, Mr. Alexander has suffered, and 

continues to suffer, pain, psychological harm, humiliation, anxiety, anguish, medical expenses, 

lost wages and lost wage earning capacity as a result of the violation of the aforesaid statutory 

duty by the Defendants. 

 WHEREFORE, Plaintiffs Darryl Alexander and Edna Alexander respectfully demand 

judgment against the Defendants in whatever amount above $75,000 that they are found to be 

entitled, plus costs, interest and attorney fees. 

COUNT VI 

 46. The Plaintiffs incorporate by reference the allegations in the preceding 

paragraphs. 

2:09-cv-12303-PJD-PJK Doc # 1 Filed 06/15/09 Pg 9 of 11 Pg ID 9
10

 47. Plaintiff Edna Alexander is, and at all times relevant was, the lawful wife of 

Plaintiff Darryl Alexander. 

 48. Plaintiff Edna Alexander suffered damages that were proximately caused by the 

acts and omissions of the Defendants as described above. 

 49. As a direct and proximate result of the acts and omissions of the Defendants as 

described above, Plaintiff Edna Alexander suffered loss of consortium, loss of society and 

companionship, and other damages. 

 WHEREFORE, Plaintiffs Darryl Alexander and Edna Alexander respectfully demand 

judgment against the Defendants in whatever amount above $75,000 that they are found to be 

entitled, plus costs, interest and attorney fees. 

 Respectfully submitted, 

 

 By: s/Mark F. Miller__________ 

 DeNardis, McCandless & Miller, P.C. 

70 Macomb Place, Suite 200 

Mt. Clemens, MI 48043 

586.469.9191 

mmiller@dmm-law.com

P36404 

Dated: June 15, 2009 

2:09-cv-12303-PJD-PJK Doc # 1 Filed 06/15/09 Pg 10 of 11 Pg ID 10
11

DEMAND FOR JURY TRIAL

 Plaintiffs Darryl Alexander and Edna Alexander, by their attorneys, DeNardis, 

McCandless & Miller, hereby demand a trial by jury in the above-captioned matter. 

 Respectfully submitted, 

 

 By: s/Mark F. Miller__________ 

 DeNardis, McCandless & Miller, P.C. 

70 Macomb Place, Suite 200 

Mt. Clemens, MI 48043 

586.469.9191 

mmiller@dmm-law.com

P36404 

Dated: June 15, 2009 

2:09-cv-12303-PJD-PJK Doc # 1 Filed 06/15/09 Pg 11 of 11 Pg ID 11