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Food Poisoning Claim Against Restaurant Dismissed Due to Lack of Proof

By on February 22, 2019 in Claims with 0 Comments

Plaintiff Kathleen Nicholson and John Nicholson sued the Outback Steakhouse (“Outback”) after Kathleen became ill after eating at the Outback. She claimed that her dinner at the Outback was the source of the Salmonella bacteria that caused her illness. In Nicholson v. Bloomin Brands, Inc., 2018 N.J. Super. Unpub. LEXIS 1817 (App. Div. July 30, 2018), the issue was whether the plaintiff was able to establish causation against the defendant restaurant.

Kathleen sued based upon claims of negligence, breach of the implied warranty of merchantability, violations of the New Jersey Food and Drug Act, and the New Jersey Products Liability Act. At the conclusion of discovery, the defendants (Bloomin Brands Inc. and Outback Steakhouse) filed a motion for summary judgment based upon the plaintiffs’ failure to establish causation. The motion was granted by the trial court and the complaint was dismissed. This appeal ensued.

Plaintiffs had dined at the Outback on a Sunday night with their daughter, her fiancé, her fiancé’s mother, and the mother’s boyfriend. Kathleen ate the non-seafood cream based soup, mahi-mahi, shrimp, scallops, possibly a potato and drank a Samuel Adams beer. No one else in her party ordered or consumed these items and she did not eat any appetizers from anyone else’s plate. In the 48 hours before she ate at the Outback, Kathleen had only eaten a chocolate donut on Friday night, chocolate chip cookies and saltine crackers on Saturday night and coffee with milk each morning, including the Sunday morning before arriving at Outback. She also testified that on the two days immediately preceding her visit Outback, she worked as a hostess at Red Lobster each day but did not eat anything while at work.

Kathleen and her party left the Outback at about 4:30 PM and got home about 6:30 PM. Later that night, at about 11:30 PM, Kathleen became very nauseous and vomited throughout the night. At about 10 AM Monday morning, she developed diarrhea. On Tuesday into Wednesday, she had a slight fever and chills and the diarrhea and vomiting continued. Kathleen thought she was suffering from a stomach virus. However, when her symptoms worsened, she went to the doctor who promptly sent her to the emergency room on Thursday.

At the hospital, the doctor diagnosed her with “gastroenteritis, severe dehydration, sepsis, renal insufficiency, and cardiac ischemia.” A blood test was taken which showed that she had Salmonella in her system. She was later diagnosed with “hypovolemic and septic shock associated with severe colitis, sigmoid perforation, and acute kidney injury.” She had to undergo a colostomy to repair a perforation in her colon. She was hospitalized for about one week. Thereafter, she transferred to rehabilitation where she remained for about two weeks. Just prior to her release, she underwent a reversal of her colostomy.

Plaintiff produced a liability expert report to attempt to establish causation against Outback. Her liability expert concluded that although at the time of the incident Outback “had current valid permits and was legally operating and there were no reported incidents of other patrons becoming ill after eating at Outback, Outback had failed to meet legal requirements regarding having properly trained and certified food personnel present and did not act responsibly and effectively in its operation to manage foodborne disease risk factors to protect Kathleen from exposure to sources of Salmonella infection.”

The expert stated that the Salmonella organisms identified in her blood included species that cause foodborne illness outbreaks associated with poultry and eggs. But, he did not opine that any food Kathleen ate was a natural carrier of Salmonella. The expert further stated “that the two most common ways to contract foodborne Salmonella infections are from cross–contamination by ingesting a food that was handled or touched by a person infected with these organisms or by direct ingestion of a food that is naturally contaminated with Salmonella” and was not cooked, held or cooled properly. The expert conceded at his deposition that he could not identify a specific food as the cause of Kathleen’s Salmonella infection or an employee that caused the illness. He admitted that it was “only the possibility that an employee can be a source of Salmonella in Outback and there was no specific identified food handling practice or direct evidence of a sanitation or cleaning practice that caused Kathleen’s illness.”

However, he opined that it was likely that Kathleen was served food that contained Salmonella organism contaminates. He noted that her illness was consistent with published onset times for the infection from 6 to 72 hours and an illness lasting 4 to 6 days.

The trial court noted that a restaurant is strictly liable for serving adulterated food but the plaintiff must still establish causation. The trial court found that the plaintiff failed to identify the source of her illness or a procedure that Outback breached. No doctor had told her the source of her illness and her expert agreed that there was no source of Salmonella identified or specific food handling practice at Outback that caused her illness. The trial court rejected the plaintiff’s argument that temporal association alone was sufficient to maintain a cause of action.

On appeal, the plaintiffs argued that they had offered sufficient proof to demonstrate a causal link between the Outback meal and Kathleen’s Salmonella infection. However, the Appellate Division also rejected that argument.

The Appellate Division analyzed the plaintiff’s claim under the New Jersey Product Liability Act (“Act”), which would include claims brought for harm caused by food cooked and sold at restaurants. A restaurant would be strictly liable under the Act if it served adulterated food to its customers.

To establish liability under the Act, the plaintiff “has the burden of proving by a preponderance of the evidence that the product was defective, that the defect existed when the product left the manufacturer’s control, and that the defect proximately caused injuries to the plaintiff, a reasonably foreseeable or intended user.” The Court noted that the presence of Salmonella in food is a defect and the defendant would be liable under the Act if the presence of Salmonella caused the consumer’s illness. However, the plaintiff must still prove causation. To establish causation, “a plaintiff must prove the defendant’s act or omission was both the factual and proximate cause of his or her injury.”

The Appellate Division noted that “[a]bsent direct evidence of Salmonella contamination, courts have accepted circumstantial evidence, including unsanitary conditions at the defendant restaurant and health code violations”. Also, courts have found a reasonable inference of causation “where plaintiff provided evidence that other people who ate allegedly contaminated food also became ill.” Another way to prove causation would be by providing evidence that “all of those who ate a certain food became ill, but the one person who did not eat it was not affected.” A temporal association combined with circumstantial evidence such as known health code violations could be sufficient to prove causation.

However, in this case, other than temporal association, the Court found that the plaintiffs presented no evidence that anyone else in their party or anyone else at Outback that day became ill. Also, the plaintiffs failed to eliminate other possible sources of contamination, such as the restaurants where Kathleen worked in the 72 hours before eating at Outback. Although she did not prepare or touch food as a hostess, her expert could not negate the possibility of cross–contamination at that restaurant.

Further, the Appellate Division found that the plaintiffs’ expert failed to analyze and expressly rule out the other foods Kathleen ate during the incubation period to eliminate those foods as the source of the Salmonella. Instead, her expert “relied on the absence of documentation, rather than the presence of violations, to support his conclusions that Outback’s training and monitoring of employees as well as their production, preparation, and handling of food, food surfaces, and equipment” caused her illness. But, he was unable to identify the specific Outback food, employee, sanitation or cleaning practice that caused her Salmonella infection and conceded that the foods she ate at Outback were not commonly associated with out Salmonella.

Based upon all of the circumstances, the Appellate Division found that the “plaintiff’s did not raise a genuine issue of material fact and a factfinder could only guess or speculate that the Outback meal was the proximate cause of Kathleen’s Salmonella infection.” Accordingly, the Court upheld the trial court’s decision to dismiss the case.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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