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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 24-CV-1061
TARANEH BAHRAMPOUR, APPELLANT,
V.
TRADER JOE’S COMPANY, INC., APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2024-CAB-000460)
(Carl E. Ross, Judge)
(Submitted March 26, 2026 Decided October 15, 2026)
Mohaimina Haque was on the briefs for appellant.
Mariana D. Bravo and Stephen G. Rutigliano were on the brief for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and MCLEESE and HOWARD,
Associate Judges.
HOWARD, Associate Judge: Appellant Ms. Taraneh Bahrampour appeals the
trial court’s November 13, 2024, Order granting appellee Trader Joe’s Company,
Inc.’s Motion to Reconsider and dismissing Count I of Ms. Bahrampour’s
Complaint. In its motion to reconsider, Trader Joe’s raised the issue of whether Ms.
Bahrampour’s Complaint pleaded sufficient facts to maintain her negligence cause
2
of action against Trader Joe’s for failing to warn consumers that their breaded fish
fillets may contain bones that could cause injury to consumers. Under de novo
review, we reverse the judgment of the Superior Court and remand for further
proceedings in accordance with this opinion.
I. Background
On May 30, 2023, Ms. Bahrampour consumed a fish fillet from a frozen
“Oven Ready Breaded Cod Fillets” product that was produced and sold by Trader
Joe’s Company, Inc. 1 Trader Joe’s “Oven Ready Breaded Cod Fillets” packaging
claims to be “Par-Cooked Premium Alaskan Cod Fillets, coated with seasoned batter
and crispy breadcrumbs.” The fish fillet product’s image pictured a manufactured
fish product, and the first listed ingredient was “Alaska Cod.” While Ms.
Bahrampour ate the fish fillet, a fish bone became lodged in her esophagus. Ms.
Bahrampour immediately went to urgent care, and once evaluated, she was told to
go to an emergency room.
In John Hopkins Medicine Sibley Memorial Hospital’s Emergency Room,
doctors conducted an esophagogastroduodenoscopy (EGD) scan, which revealed
1
Bahrampour purchased the Oven Ready Breaded Cod Fillets from the Trader Joe’s store located at 2101 Wisconsin Avenue, NW, Suite A, Washington, DC 20007.
3
that a fish bone was impacted in her proximal esophagus, causing tenting
(narrowing) of her esophageal wall. Approximately twenty-two hours after the fish
bone became lodged in her esophagus, doctors performed surgery on Ms.
Bahrampour to remove the fish bone. Prior to the surgery, Ms. Bahrampour was
experiencing pain and swelling. The fishbone that the surgeons removed from Ms.
Bahrampour’s esophagus was approximately 5/8 of an inch long. As a result of this
incident, Ms. Bahrampour claims to have suffered severe physical and emotional
pain, lost wages, continued physical impairment, and medical treatment costs.
On January 19, 2024, Ms. Bahrampour filed a Complaint against Trader Joe’s
Company, Inc., which included duty to warn, negligence, breach of warranty, strict
products liability, and a violation of the District of Columbia Consumer Protection
Procedures Act as causes of action. On April 5, 2024, Trader Joe’s filed a Motion to
Dismiss all counts of the Complaint. The trial court dismissed all counts except the
negligence claim (Count I) because there were sufficient facts presented to show
Trader Joe’s failed to warn consumers about possible bones. On August 13, 2024,
Trader Joe’s filed a Rule 59(e) Motion to Reconsider the trial court’s decision to
deny the dismissal of Count I because the court held that as a matter of law
consumers should reasonably expect bones in any fish product. On August 22, 2024,
Ms. Bahrampour filed her opposition, which argued that failure to warn cases do not
include a reasonable expectation analysis. On November 17, 2024, the trial court
4
granted Trader Joe’s Motion to Reconsider and dismissed all of the Complaint’s
counts. Ms. Bahrampour timely appealed.
II. Standard of Review
Motions to reconsider “that claim an error of law are reviewed de novo.”
Callahan v. 4200 Cathedral Condo., 934 A.2d 348, 353 (D.C. 2007) (citation
modified). A motion to reconsider “seek[s] relief from the adverse consequences of
the original order on the basis of error of law” and not an improper factual basis.
Wallace v. Warehouse Emps. Union No. 730, 482 A.2d 801, 804 (D.C. 1984)
(citation modified). The Superior Court treated appellee’s motion as a Motion for
Reconsideration of an Interlocutory Order under Super. Ct. Civ. R. 54(b), the result
of which was the dismissal of Ms. Bahrampour’s complaint under Rule 12(b)(6) for
failure to state a negligent failure to warn claim. See Super. Ct. Civ. R. 12(b)(6).
Therefore, our review of the underlying issue here is that of a Rule 12(b)(6)
dismissal.
We review an order granting a Rule 12(b)(6) motion to dismiss a complaint
de novo. Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531, 543 (D.C. 2011).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Tovar v. Regan
Zambri Long, PLLC, 321 A.3d 600, 609 (D.C. 2024) (citation modified). “A claim
5
has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citation modified). “Any uncertainties or ambiguities in the complaint
must be resolved in favor of the [complainant].” Id. (citing Hillbroom v.
PricewaterhouseCoopers LLP, 17 A.3d 566, 572 (D.C. 2011)). “Dismissal under
Rule 12(b)(6) is appropriate where the complaint fails to allege the elements of a
legally viable claim.” Chamberlain v. Am. Honda Fin. Corp., 931 A.2d 1018, 1023
(D.C. 2007) (citation modified).
III. Discussion
On appeal, the parties present one central question: whether there exists a duty
to warn consumers of the possibility of fish bones in Trader Joe’s “Oven Ready
Breaded Cod Fillets” –more specifically, whether, as a matter of law, the risk of the
presence of fish bones in fish fillets is obvious such that no duty to warn applies.
We start with the failure to warn elements:
(1) the defendant had a duty to warn, i.e., knew or should
have known of the risk of a reasonably foreseeable harm
from the product in question; (2) the defendant breached
that duty, i.e., the warning label was inadequate in that it
failed to advise the user of the attendant risks and failed to
provide specific directions for safe use; and (3) the breach
proximately caused the plaintiff’s injury, i.e., defendant’s
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failure to provide an adequate warning was a substantial
factor in bringing about the harm at issue.
Fuller v. Chem. Specialities Mfg. Corp., 702 A.2d 1239, 1241 (D.C. 1997) (citing E.
Penn Mfg. Co. v. Pineda, 578 A.2d 1113, 1119-23 (D.C. 1990)) (emphasis added).
The exception to a defendant’s knowledge of the risk of harm remains the obvious
risk doctrine, which reasons that there is no duty to warn “when the danger, or
potentiality of danger, is generally known and recognized.” Delahanty v. Hinckley,
564 A.2d 758, 760 (D.C. 1989) (citation modified); see also Wash. Metro. Area
Transit Auth. v. Barksdale-Showell, 965 A.2d 16, 24-25 (D.C. 2009) (stating that
“there is no duty to warn when a danger is as well known to the plaintiff as it is to
the defendant”). However, when a risk is “peculiarly foreseeable to the defendant
but not the plaintiff,” it imposes a duty on the defendant to ensure the plaintiff is
aware of those risks. Barksdale-Showell, 965 A.2d at 25 (citing Ellis v. Safeway
Stores, Inc., 410 A.2d 1381, 1383 (D.C. 1979)); see also Reeves v. Wash. Metro.
Area Transit Auth., 135 A.3d 807, 813-15 (D.C. 2016) (finding that, when a
foreseeable harm is known only to the defendant and the defendant is on notice to
repudiate that harm, there exist sufficient facts for a jury to determine).
“Knowledge of a dangerous condition implies not only that the condition is
recognized, but also that the chance of harm and the gravity of the threatened harm
are appreciated.” Barksdale-Showell, 965 A.2d at 25 (citation modified). “Obvious
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means that both the condition and the risk are apparent to and would be recognized
by a reasonable [person], in the position of the [complainant], exercising ordinary
perception, intelligence, and judgment.” Id. (citation modified). Within the context
of food, the risk aspect of the knowledge question splits into two main categories of
cases: “unknown-ingredient” cases and “unknown-harm” cases. Mills v. Giant of
Md., LLC, 508 F.3d 11, 14 (D.C. Cir. 2007). “Unknown-ingredient” cases relate to
situations where reasonable consumers would not expect to find a specific ingredient
in a food product. Id. (citing Livingston v. Marie Callender’s Inc., 72 Cal. App. 4th
830, 832, 839-40 (1999) (discussing MSG in fresh vegetable soup); Brown v.
McDonald’s Corp., 101 Ohio App. 3d 294, 298-301 (1995) (discussing a seaweedderived ingredient in a hamburger)). “Unknown-harm” cases “encompass[]
situations where reasonable consumers are not aware of the harm that a food may
cause to certain people. In other words, although consumers may know the
ingredients in a certain food, they may not know the harm that the food or the food’s
known ingredients can bring about.” Id.
Given the dualities, this court burdens factfinders with determining the level
of obviousness that pertains to a particular risk. See Reeves, 135 A.3d at 814-15.
Moreover, these considerations may only be reversed as a matter of law “when the
evidence would not permit differences of opinion by reasonable jurors.” Pineda, 578
8
A.2d at 1115; see also Barksdale-Showell, 965 A.2d at 19 (“The issue of the
reasonableness of WMATA’s conduct was one for the jury”).
At present, the only issues are whether as a matter of law it was obvious to
consumers that Trader Joe’s breaded fish fillets contained bones and, if so, whether
the risk involved with eating food that contains fish bones was also obvious. The
parties agree that Trader Joe’s Oven Ready Fish Fillets had no warning label and
that Ms. Bahrampour was injured after her consumption of the fish fillet, which
establishes the second and third elements of a negligent failure to warn case.
Moreover, Trader Joe’s admits it knew fish bones may be latent in their product.
Thus, the only question is whether that risk was obvious to consumers, including
Ms. Bahrampour. Ms. Bahrampour argues that Trader Joe’s knew that there could
be latent bones in their breaded fish fillets and that those latent bones presented a
foreseeable harm to consumers, creating a duty to warn consumers about the risks
because the product’s marketing as oven ready, pre-cooked, and breaded could give
a consumer a false sense of safety when eating the product. In contrast, Trader Joe’s
argues that the matter of law determination in the trial court’s July 16, 2024, Order
preempts any need to warn because the order declared that fish bones are expected
as a matter of law.
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At the motion to dismiss stage, Ms. Bahrampour did not fail to allege a legally
viable claim. As to the “unknown-ingredient” part of the case, when drawing the
facts in Ms. Bahrampour’s favor, she relied on the product’s packaging and believed
that “oven-ready” and “breaded” suggested a bone-free fish product. In applying the
reasonable expectation test, this court has held that “it is unrealistic to deny recovery
as a matter of law if, for example, a person is injured from a chicken bone while
eating a sliced chicken sandwich in a restaurant, simply because the bone is natural
to chicken.” Hochberg v. O’Donnell’s Rest., Inc., 272 A.2d 846, 849 (D.C. 1971).
But “[i]t is a different matter if one is injured by a bone while eating a chicken leg
or a steak or a whole baked fish.” Id. Hochberg suggests that the preparation of the
dish or food item presents a factual issue that may change what is reasonable to
expect in that product; so, Ms. Bahrampour’s claim at this stage may be viable.
Some may believe one should always expect fish bones in any fish product at
any production stage because they are simply too hard to remove and are a natural
part of the meat. See Yong Cha Hong v. Marriott Corp., 656 F. Supp. 445, 449 (D.
Md. 1987) (“Everyone but a fool knows that tiny bones may remain in even the best
filets of fish”) (citing Ex parte Morrison’s Cafeteria of Montgomery, Inc., 431 So.
2d 975 (Ala. 1983)); Polite v. Carey Hilliards Rests., Inc., 338 S.E.2d 541, 542 (Ga.
Ct. App. 1985) (holding that a one-inch fish bone in a fish fillet did not render the
fillet injurious to health). However, it is just as plausible that a jury could decide that
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Trader Joe’s had a duty to warn consumers that their product is a “whole fish fillet”
and “may contain bones” because it is foreseeable that a person may not know this
specific product, given its presentation, has bones and may cause injury. See Zabner
v. Howard Johnson’s, Inc., 201 So.2d 824, 826 (Fla. Dist. Ct. App. 1967) (“It is true
one can expect . . . fish bones in a whole baked or fried fish, but . . . [t]here is a
distinction between what a consumer expects to find in a fish stick and in a baked or
fried fish”). This dichotomy is precisely why we burden factfinders to resolve such
a conflict, particularly in the District of Columbia, where it has not been decided
whether, as a matter of law, fish bones are an obvious ingredient in fish fillets.
Even if the trial court was correct that fish bones, as a matter of law, are an
obvious ingredient of fish fillets, Ms. Bahrampour presents the additional question
of whether the harm from the fish bone was obvious, which raises the “unknownharm” aspect of this case. Ms. Bahrampour argues that, even accepting that
consumers should reasonably expect to find fish bones in fish fillets, consumers
could not reasonably expect to be harmed by fish bones ingested when consuming
the fillets, particularly to the extent of hospitalization and surgery. Trader Joe’s
argues that awareness of the condition—fish bones in a fish fillet—necessarily
includes awareness of the harm posed by consuming fish bones because the two are
inseparable.
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Whether the harm caused by consuming fish bones was obvious to consumers
is another question of fact that should have been left to the factfinders. There are
cases where the harm is inseparable from the condition itself, such as the dangers of
lethal weapons such as guns, see Delahanty, 564 A.2d at 760, temporary gas and
stomach discomfort from drinking milk when lactose intolerant, see Mills, 508 F.3d
at 15, and bodily injuries from rubber exercise bands snapping back, see Jamieson
v. Woodward & Lothrop, 247 F.2d 23, 29-30 (D.C. Cir. 1957). While the harm of,
for example, temporary discomfort from swallowing a fish bone can perhaps be seen
as an obvious danger or harm of eating fish, there is no case law that supports finding
that a lodged fish bone requiring hospitalization and surgery was an obvious harm
of eating a Trader Joe’s fish fillet. As such, these questions are ones that should be
determined by a factfinder as a basis for determining whether Trader Joe’s had a
duty to warn.
At present, we see no reason to create a special exception that bans consumers
from recovery based on injuries stemming from fish bones being latent in fish
products. And even if as a matter of law fish bones are expected, the test stays the
same. Namely, should the consumer have reasonably expected the object at the stage
of manufacturing and known the risks of the object’s inclusion without an explicit
label warning against it? Given that we typically retain such considerations for a
jury—unless it is clear no possible juror could agree—we cannot ignore that a
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reasonable person can distinguish between a whole baked fish, a raw fish fillet, and
a frozen, “oven-ready,” breaded fish fillet that appears manufactured. Thus, Ms.
Bahrampour sufficiently stated a claim for relief that is plausible on its face, and
Trader Joe’s motion to dismiss should have been denied.
IV. Conclusion
For the foregoing reasons, the judgment of the trial court is reversed and the
case is remanded for further proceedings in accordance with this opinion.
So ordered.