Wednesday, May 8, 2013

It Must Be Something I Ate–Causation in Food Liability Cases


This article was originally published in South Carolina Lawyer, March 2013, at 16 - 19.  Click here for a link to the online version of the magazine, which is produced by the South Carolina Bar.  

 

Charles Appleby

Have you ever received the unpleasant surprise of a foreign substance in your food?  Or woken up the morning after a meal feeling sick and thought, “It must be something I ate?” Many food liability cases undoubtedly begin with this very thought.  A common theme among food liability cases is the importance of having sufficient proof that the adulterated food proximately caused the alleged illness or damages.  In fact, the outcome in a food liability case often depends on having sufficient proof of causation.

South Carolina Food and Cosmetic Act & Negligence
The South Carolina Food and Cosmetic Act is intended to protect the consumer from adulterated or misbranded food and cosmetics.[1] Under the Act, a food is deemed to be adulterated under a variety of circumstances, including if it contains any poisonous or harmful substance that makes it injurious to health or if it contains any diseased, contaminated,[2] Any entity, such as a restaurant or retailer, violates the Act if it, inter alia, manufactures, sells, delivers, holds, or offers for sale any adulterated food; adulterates any food; or receives in commerce any adulterated food.[3]
Amy Neuschafer
filthy, putrid or decomposed substance.

Proof of a violation of South Carolina Food and Cosmetic Act constitutes negligence per se and supports recovery of damages if the violation proximately caused or contributed to the plaintiff's injury.[4] A plaintiff is required to show negligence with reasonable certainty, not through mere conjecture.  Negligence cannot be proven through the doctrine of res ipsa loquitur.[5] Accordingly, whether alleging negligence based on violation of the Act or another theory, to prevail on a negligence claim arising out of unwholesome food, the plaintiff must prove the food in question was unfit and that it caused his/her illness.[6] 

The central question in food liability cases therefore becomes: “Is it really something you ate?”

Proving Causation
Causation is proved by establishing the plaintiff’s injury would not have occurred “but for” the defendant’s negligence.[7] “It is not sufficient that the malady in question ‘possibly’ or ‘could have’ or ‘might have’ resulted in the injury.”[8] Professor David G. Owen aptly notes the importance of establishing causation in his treatise on product liability law:

In addition to showing that a particular food item was defective, the plaintiff must also link the defective food product to the harm.  In many cases, the causal link between the defective foodstuff and a plaintiff’s harm is undisputed, as when the plaintiff immediately is injured or sickened from consuming food that clearly is defective, as a sirloin steak containing the tip end of hypodermic needle, or a chili dog containing a cockroach.  But if the connection between defective food or drink and a person’s illness is not self-evident, as often is the case, reliable expert testimony may be required to establish the causal link between the defect and the harm.[9]  

Expert testimony is not always necessary to prove causation in an unfit food case.[10]  In Miller v. Atlantic Bottling Corp., the plaintiff allegedly became ill after drinking a bottle of soda containing a harmful foreign substance.  The plaintiff testified she bought the soda, drank a few swallows, and immediately noticed the soda had a “vile smell and taste.”[11]  She then noticed an unidentified foreign substance in the bottom of the bottle.  She immediately began to feel nauseated, her throat and chest hurt, and her mouth began to water.  The defendant contended expert testimony was necessary to establish the substance caused the plaintiff’s illness.  In rejecting this argument, the court recognized that “in many instances expert medical evidence would be required to determine whether an illness resulted from a particular act.”[12] However, the court reasoned expert testimony was not required to establish the foreign substance most probably caused the plaintiff’s illness where she became violently ill immediately after consuming the bottled drink containing the “vile smelling and tasting, and revolting foreign substance.”[13]  In declining to require expert testimony regarding causation, the Miller court clearly took into account the obvious adulterated quality of the soda, as well as the plaintiff’s immediate onset of symptoms.

That being said, the mere showing that a person became sick subsequent to eating food typically is insufficient to establish causation.[14] Courts generally have been skeptical of claims based largely on the theory, ‘I ate it, and then I got sick.’”[15]  For instance, in Fowler v. Coastal Coca-Cola Bottling Co., the court held the plaintiff failed to offer sufficient evidence of causation despite testimony that he became ill an hour and half after drinking a soda containing a slimy substance later identified as yeast.[16] In reaching its conclusion, the court pointed out the plaintiff’s treating physician testified a virus that was prevalent in the community at the time was the likely cause of the plaintiff’s symptoms, and the physician found no evidence the plaintiff’s illness was attributable to the ingestion of yeast.  Although the court did not address whether expert testimony was necessary to establish causation, the treating physician’s alternative explanation for the plaintiff’s symptoms and inability to link the foreign substance to these symptoms were key to the court’s decision.

South Carolina courts have specifically required expert medical testimony to establish causation where there is not a reasonable basis upon which to conclude that the illness was the natural and probable consequence of consuming the contaminated food or beverage.[17]  In Burr v. Coca-Cola Bottling Co. of Columbia, Inc., the plaintiff began experiencing nausea and diarrhea two hours after consuming a bottled beverage containing a foreign substance. The court noted there was no medical testimony as to the cause of plaintiff’s illness, and common experience showed the plaintiff’s symptoms often occurred from other causes. The court held that “[i]n view of the nature of the illness, the lapse of two hours before the first symptoms appeared renders the sequence of events too remote, absent other testimony, upon which to base a finding of causal connection.”[18]

An unreported decision from the District of South Carolina similarly reinforces the need for expert testimony where an average juror could not conclude a causal link existed between the allegedly unfit food and the plaintiff’s subsequent illness.  In Griffin v. Wilcohess, LLC, the court granted summary judgment for the defendant because the plaintiff failed to establish his salmonella poisoning was caused by consuming defendant’s cheeseburger.[19] To establish causation, the plaintiff pointed to medical records indicating he was diagnosed with salmonella and the allegation he was the only member of his family to eat the burger and the only member to become ill.  The defendant offered the affidavit of a medical expert opining the passage of time between the plaintiff’s consumption of the cheeseburger and the onset of his symptoms was not sufficiently long enough for the salmonella bacteria to incubate.  Rather, the defendant’s expert opined the plaintiff’s illness more likely resulted from the eggs or oysters he consumed the previous day. 

In granting the defendant’s motion for summary judgment, the court reasoned there was no evidence the cheeseburger was unfit or that is caused the plaintiff’s illness. To the contrary, the evidence showed defendant maintained a 100 percent food inspection rating and of the 3,452 food items sold at defendant’s restaurant on the day the plaintiff purchased his cheeseburger, the only report of illness came from the plaintiff.  The court further found expert testimony was required to establish the cheeseburger caused the plaintiff’s salmonella.  Because the plaintiff offered evidence only that he had salmonella, but no expert opinion linking the infection to the defendant’s cheeseburger, the court granted summary judgment. Accordingly, depending on the facts of a particular case, expert testimony may be necessary to establish causation.

Court Rules Plaintiff Bit off More than He Could Chew
A recent decision from the Eastern District of North Carolina is another example of the key role proof of causation plays in food liability cases.  In Manley v. Doe, the plaintiff filed suit against a Wendy’s franchisee after a two-inch plastic fragment bearing the Wendy’s logo was removed from his lung.[20]

In 2007, the plaintiff began to suffer from episodes of fatigue, coughing, choking, and gastrointestinal problems. Almost two years later, it was determined an approximately two-inch long fragment from a plastic eating utensil was lodged in the plaintiff’s lung. When the fragment was removed, it was found to be embossed with part of the Wendy’s logo. The plaintiff brought suit against a Wendy’s franchisee, claiming he unknowingly consumed the fragment while eating a hamburger during one of his four-to-five visits to the restaurant in the months prior to the onset of his symptoms.

At first glance, this case might sound like a slam dunk. After all, the fragment did bear the Wendy’s logo and the plaintiff had eaten at Wendy’s in the months before he fell ill. Nonetheless, the district court found the plaintiff’s theory of the case tough to swallow and granted summary judgment in favor of the restaurant. The plaintiff relied on circumstantial evidence to prove a defect in a hamburger (i.e., the plastic fragment) the restaurant sold to him caused his injuries. Although there appears to have been no dispute that his condition was caused by the fragment, the key issue was whether the fragment became lodged in his lung while eating a Wendy’s hamburger.

The court noted there was no evidence the fragment came from the particular Wendy’s franchisee named as a defendant in the case. Furthermore, although the plaintiff’s doctors testified the fragment caused his symptoms, their testimony did not to prove how the fragment entered his lung. The restaurant’s experts, on the other hand, testified a person could unknowingly inhale such an object only if he suffered from “severe mental status depression,” which would suppress the coughing reflex. One cause of this condition is intoxication, and despite the plaintiff’s denials, there was evidence he abused drugs and alcohol in the year he became ill. Although the plaintiff testified he was never intoxicated during his visits to Wendy’s, the defense experts concluded the fragment entered the plaintiff’s lung due to suppressed gag and cough reflexes while he was under the influence.

The defense’s position was supported by the absence of food particles in the plaintiff’s lung. Because the lungs do not contain enzymes to break down food like those found in the stomach, if food had entered the lungs with the fragment as plaintiff alleged, then food particles would still have been present when the fragment was removed.

Finally, the court relied on the absence of other similar incidents at the franchisee’s restaurants to reject the plaintiff’s theory of causation. During a two-year period, the franchisee served approximately 36 million customers, but received only 21 customer complaints involving foreign objects in food. However, none of these complaints involved pieces of plastic eating utensils. After considering the evidence, the court concluded no reasonable jury could find a defect in the hamburger the restaurant sold to the plaintiff caused his injuries.

Conclusion – Follow the Facts
The facts giving rise to food adulteration cases are often so disgusting and disturbing that proximate causation might seem like a foregone conclusion.  Although it may seem like a no-brainer that the foreign substance in the plaintiff’s sandwich is responsible for his ensuing illness or that the plaintiff’s last meal is to blame for his symptoms, causation should never be taken for granted.  The facts of each case should be closely examined to determine if expert testimony is necessary to establish the adulterated food or beverage proximately caused plaintiff’s illness.

Amy Neuschafer focuses on retail, hospitality and entertainment law in Collins & Lacy, P.C.’s Myrtle Beach office.

Charles Appleby is an attorney focusing on retail, hospitality and entertainment law in Collins & Lacy, P.C.’s Columbia office.


[1] See generally S.C. Code Ann. §§ 39-25-10 et seq.
[2] S.C. Code Ann. § 39-25-100.
[3] S.C. Code Ann. § 39-25-30.
[4] Coward v. Borden Foods, Inc., 267 S.C. 423, 229 S.E.2d 262 (1976), Fowler v. Coastal Coca-Cola Bottling Company, Inc., 252 S.C. 579, 167 S.E.2d 572 (1969).
[5]Crider v. Infinger Transp. Co., 248 S.C. 10, 148 S.E.2d 732 (1966); Eickhoff v. Beard-Laney, 199 S.C. 500, 20 S.E.2d 153 (1942);. 
[6] Miller v. Atlantic Bottling Corp., 259 S.C. 278, 281, 191 S.E.2d 518, 519 (1972); Burr v. Coca-Cola Bottling Co. of Columbia, Inc., 256 S.C. 162, 166, 181 S.E.2d 478, 480 (1971).
[7] Hurd v. Williamsburg County, 353 S.C. 596, 579 S.E.2d 136 (Ct. App. 2003).
[8] 32 S.C. Jur. Witnesses § 79 (2006) (citing Scoggin v. McClellion, 321 S.C. 264, 468 S.E.2d 12 (Ct. App. 1996); Gambrell v. Burleson, 252 S.C. 98, 165 S.E.2d 622 (1969)).
[9] David G. Owen, Products Liability Law 478 (West 2005) (internal citations omitted).
[10]Miller, 259 S.C. 278, 191 S.E.2d 518 (holding the plaintiff’s description of “repulsive” soda that immediately made him nauseated was enough to create an inference of food poisoning, and expert testimony was not required); Turner v. Wilson, 227 S.C. 95, 102, 86 S.E.2d 867, 870 (1955) (upholding judgment for the plaintiff in a food poisoning case which was based wholly on circumstantial evidence); Kyle v. Swift & Co., 229 F.2d 887, 888-89 (4th Cir. 1956) (stating circumstantial evidence may consist of proof that other people who ate the same food also became sick).
[11] Miller, 259 S.C. at 280 191 S.E.2d at 519.
[12] Id. at 282, 191 S.E.2d at 520.
[13] Id.
[14] Coward, 267 S.C. 423, 229 S.E.2d 262 (plaintiff’s testimony her tooth struck a hard object while eating “Cracker Jack” popcorn was insufficient to establish her broken tooth was caused by any adulteration in the popcorn); Meyer v. Super Discount Mkts., 501 S.E.2d 2, 4 (Ga. Ct. App. 1998); Castleberry’s Food Co. v. Smith, 424 S.E.2d 33, 36 (Ga. Ct. App. 1992). 
[15] 47 Am. Jur. Proof of Facts 3d § 47 (2012).
[16] 252 S.C. 579, 167 S.E.2d 572.
[17] Burr, 256 S.C. at 165-66, 181 S.E.2d at 480.
[18] Id.
[19] Griffin v. Wilcohess, LLC, No. 0:10-cv-00489-JFA, 2010 WL 3803695 (D.S.C. 2010).
[20] 849 F. Supp. 2d 594 (E.D.N.C. 2012).

2 comments:

  1. This is an interesting article. I do not know much about food liability law cases but they seem very interesting. My neighbor had a different liability case for his business but I don't think it is similar to these. I wounder if hiring a lawyer is important in food liability cases? I know my neighbor decided to hire one because he need someone with experience and knowledge in what he was going to court for. I told him to learn about Marshall Davis Brown JR before looking at anyone else because his knowledge is one of a kind. It is very important to find the right lawyer because you need to trust them.

    ReplyDelete