The Latest “It Couldn’t Have Happened Defense“ The Mouse in the Soda Can Would Have Disintegrated

It’s like the old joke, “Who are you going to believe? Me or your own eyes.” One standard defense used to try to defeat a plaintiff’s case is the “It couldn’t have happened” defense, that is the occurrence complained of could not possibly have happened the way the plaintiff says it did. Often an expert is called upon to explain the impossibility of what was observed in plain sight. And so it goes in the products liability lawsuit brought by Ronald Ball, who alleges he became violently ill when he opened a can of Mountain Dew and found a dead mouse inside.

In support of its motion to dismiss the lawsuit, PepsiCo has submitted to the court an affidavit from a veterinary pathologist explaining in morbid step-by-step detail that any mouse submerged in Mountain Dew as long as Mr. Ball alleges would have completely disintegrated by acids that would have turned the mouse’s body into a “jelly-like” substance.

But an associate professor of food science at the University of Guelph, Massimo Marcone, disputes PepsiCo’s scenario. He states that there would not be enough acid in the matrix of the can to actually start causing those physical changes to the mouse. He speculates that the only way it would be feasible is if before being confined to the can the offending rodent had been submerged in a larger tub of the liquid for an extended period where the acid would be stronger and fresher through replenishment.

Touting the destructive abilities of your own “soft drink” that you expect the public to continue to buy so that you can win a lawsuit strikes me as a bizarre strategy. I guess I’ll never ceased to be amazed at the limitless potential of the “it couldn’t have happened” defense. We’ll see how the judge rules.

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