Opinion
No. CV07-5001992-S
February 14, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #154
On April 20, 2007, the plaintiff, George F. Bergeron Jr., individually and on behalf of the estate of Patricia Bergeron, commenced the present products liability action by service of process against the defendant, Pacific Food, Inc., doing business as Pacific Buffet and Grill. In counts one and two of his revised amended complaint, the plaintiff alleges the following facts against the defendant. The defendant is a Connecticut corporation that sold various foods to the public for immediate consumption at its restaurant. On August 7, 2006, the plaintiff's decedent entered the defendant's restaurant and ordered, consumed and paid for raw oysters that were contaminated with vibrio vulnificus sepsis (vibrio). As a result, the plaintiff's decedent died. Pursuant to the Connecticut Products Liability Act (CPLA), General Statutes § 52-572m et seq., the defendant is legally responsible to the plaintiff and his decedent for their injuries. In count one, the plaintiff brings a claim on behalf of his decedent. In count two, the plaintiff brings a claim on behalf of himself. On July 3, 2008, the defendant filed its answer and special defenses. In its answer, the defendant denied that it was responsible to the plaintiff and his decedent pursuant to § 52-572m et seq. In his reply to the defendant's special defenses, the plaintiff denied each and every allegation contained therein.
On January 17, 2008, the defendant filed a motion to implead New Fu Dai Trading, Inc. (New Fu Dai) and Sam Rust Seafood, Inc. (Sam Rust). The motion was granted by the court, Gilligan, J., on January 28, 2008. On February 29, 2008, the defendant filed a three-count third-party complaint against New Fu Dai and Sam Rust. On August 14, 2008, the defendant filed a motion for default for failure to appear against New Fu Dai, which was granted by the clerk on August 15, 2008.
On March 26, 2008, the plaintiff filed a four-count amended complaint against the defendant and Sam Rust. On May 16, 2008, Sam Rust filed a request to revise the plaintiff's amended complaint. In response to Sam Rust's request, the plaintiff filed a four-count revised amended complaint on June 26, 2008.
The plaintiff alleges a number of theories of recovery under the CPLA, including strict liability, negligence, breach of warranty, failure to warn and misrepresentation, on the ground that the raw oysters were defective.
In particular, the defendant alleges that: (1) the defendant owed no duty of care to the plaintiff's decedent; and (2) the plaintiff's decedent was comparatively negligent.
On September 3, 2010, the defendant filed a motion for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff cannot establish a products liability claim such that the defendant is entitled to judgment as a matter of law. The motion is accompanied by a memorandum of law. On October 27, 2010, the plaintiff filed an objection to the defendant's motion. On November 12, 2010, the defendant filed a reply to the plaintiff's objection. The matter was heard at short calendar on November 15, 2010.
On September 22, 2010, Sam Rust filed motions for summary judgment as to the plaintiff's revised amended complaint and the defendant's third party complaint. On October 26, 2010, the defendant filed a withdrawal of its complaint as to Sam Rust. Sam Rust's motion for summary judgment as to the plaintiff's complaint, however, was heard at short calendar on November 15, 2010. On December 14, 2010, the plaintiff filed a withdrawal of its complaint as to Sam Rust. Therefore, the only motion properly before the court is the defendant's motion for summary judgment.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Moreover, "the . . . court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, supra, 284 Conn. 791.
In its memorandum of law in support of its motion for summary judgment, the defendant argues that the plaintiff is unable to prove his products liability claim against the defendant because: (1) the defendant did not sell a product that was defective or unreasonably dangerous; and (2) the defendant provided adequate warning to the plaintiff's decedent. In particular, the defendant contends that a product is not defective even if it is not entirely safe for all consumers. In this regard, the defendant argues that oysters contaminated with vibrio are not defective because vibrio is naturally occurring in oysters and "generally does not affect members of the public and only affects a portion of those individuals with certain physical traits that predispose them to actual conditions associated with vibrio."
Furthermore, the defendant contends that a proper warning may prevent a product from being unreasonably dangerous. In this regard, the defendant argues that it provided adequate warning to the plaintiff's decedent because it posted a warning, which complied with the requirements of the Connecticut Department of Public Health, on the sneezeguard above the raw oysters at their buffet. Moreover, to the extent that the warning was inadequate, the defendant contends that the plaintiff has presented no evidence that had the plaintiff's decedent been given alternate warnings she would have avoided eating the oysters. In support of its motion, the defendant submitted the following evidence: (1) a report on vibrio from the federal Food and Drug Administration (FDA); (2) the deposition transcript of Gary L. Simon, M.D.; (3) the deposition transcript of Richard Wein, M.D., attending physician of the plaintiff's decedent; (4) excerpts from the public health code; (5) a copy of the compliance guide from the Connecticut Department of Public Health; (6) Sam Rust's answer to the defendant's interrogatories; (7) the defendant's answer to Sam Rust's interrogatories; and (8) a copy of the defendant's file from the Wallingford health department.
In response, the plaintiff counters that there are issues of material fact, which must be resolved by the jury in order to determine whether or not the oysters were defective, in particular:(1) whether or not the dangers imposed by the consumption of raw oysters would be contemplated by the ordinary consumer; and (2) whether or not the warning provided by the defendant was adequate under the unique circumstances of the case. In support of its opposition, the plaintiff has submitted the following additional evidence: (1) the deposition transcript of the plaintiff; (2) a copy of medical records of the plaintiff's decedent from Midstate Medical Center; (3) a copy of the final autopsy report of the plaintiff's decedent; and (4) a letter, dated September 5, 2006, signed by Eloise Hudd, director of health at the Wallingford health department.
It should be noted that some of the parties evidence is unauthenticated. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). "[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). A court may, however, consider unauthenticated documentary evidence when no objection has been raised by the opposing party. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Neither party has objected to the unauthenticated evidence and both have relied upon it. Therefore, the court has considered all submitted evidence.
The defendant replies that the plaintiff has failed to present any concrete evidence that contradicts the facts presented by the defendant, in particular, any evidence to support the plaintiff's allegations that the oysters were in a defective condition or that the warnings provided by the defendant were inadequate.
The CPLA "was intended to serve as the exclusive remedy for a party who seeks recompense for those injuries caused by a product defect." (Internal quotation marks omitted.) Hurley v. Heart Physicians, P.C., 278 Conn. 305, 325, 898 A.2d 777 (2006); see General Statutes § 52-572n(a). Nevertheless, "the act was intended to merge various theories into one cause of action rather than to abolish all prior existing rights." Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 292, 627 A.2d 1288 (1993); see General Statutes § 52-572m(b). "Since the CPLA was not meant to eliminate common-law substantive rights but does not itself spell out the elements of the types of claims it consolidates . . . [courts should] assess [the plaintiff's] theories of recovery in light of the Connecticut common-law requirements." LaMontagne v. E.L DuPont de Nemours Co., 41 F.3d 846, 856 (2d Cir. 1994). Nevertheless, in any products liability action, "the plaintiff must plead and prove that the product was defective and that the defect was the proximate cause of the plaintiff's injuries." (Internal quotation marks omitted.) Haesche v. Kissner, 229 Conn. 213, 218, 640 A.2d 89 (1994); see Faux v. Thomas Industries, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 89 0233934 (October 8, 1992, Dorsey, J.) ( 7 C.S.C.R. 1209) [ 7 Conn. L. Rptr. 816] ("defectiveness is an essential element of a products liability action based on negligence as well as one based on strict tort liability"); see also Basko v. Sterling Drug, Inc., 416 F.2d 417, 427 (2d Cir. 1969) ("the `defect' necessary for the imposition of strict liability is the equivalent of an implied warranty of merchantability").
"A products liability claim . . . shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product."
A products liability claim "shall include . . . all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent." (Emphasis added.)
"A product is defective when it is unreasonably dangerous to the consumer or user." (Internal quotation marks omitted.) Battistoni v. Weatherking Products, Inc., 41 Conn.App. 555, 562, 676 A.2d 890 (1996). To qualify as unreasonably dangerous, the product "must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." (Emphasis added; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 243 Conn. 168, 189, 700 A.2d 38 (1997). "Many products [however] cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm . . ." 2 Restatement (Second), Torts § 402A, comment (i); see also Vitanza v. Upjohn Co., 257 Conn. 365, 374 n. 8, 778 A.2d 829 (2001). For example, "[o]rdinary sugar is a deadly poison to diabetics . . . That is not what is meant by `unreasonably dangerous' in this [s]ection." 2 Restatement (Second), supra, § 402A, comment (i). Nevertheless, the seller may be required to provide a warning. Id., comment (j); see also Vitanza v. Upjohn Co., supra, 374. Therefore, "[a] product may be defective because a manufacturer or seller failed to warn of the product's unreasonably dangerous propensities . . . Under such circumstances, the failure to warn, by itself, constitutes a defect." (Citations omitted; emphasis in original; internal quotation marks omitted.) Sharp v. Wyatt, Inc., 31 Conn.App. 824, 833, 627 A.2d 1347 (1993), aff'd, 230 Conn. 12, 644 A.2d 871 (1994).
"In determining whether instructions or warnings were required and, if required, whether they were adequate, the trier of fact may consider: (1) The likelihood that the product would cause the harm suffered by the claimant; (2) the ability of the product seller to anticipate at the time of manufacture that the expected product user would be aware of the product risk, and the nature of the potential harm; and (3) the technological feasibility and cost of warnings and instructions." General Statutes § 52-572q(b). Furthermore, "the claimant shall prove by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, the claimant would not have suffered the harm." General Statutes § 52-572q(c). Foreseeability, however, is not an element of the causation provision under § 52-572q(c). Sharp v. Wyatt, Inc., supra, 31 Conn.App. 838.
"Questions regarding the existence of a causal link classically are reserved for determination by the trier of fact . . . Proximate cause becomes a question of law only when the mind of a fair and reasonable person could reach only one conclusion . . . The question should be submitted to the trier of fact if there is room for a reasonable disagreement." (Citations omitted; internal quotation marks omitted.) Battistoni v. Weatherking Products, Inc., supra, 41 Conn.App. 563 (issue of material fact as to whether adequate warning with regard to diving into pool would have prevented harm where plaintiff testified that had she known of possibility of spinal cord injury she would not have performed dive in question); but see Haesche v. Kissner, supra, 229 Conn. 219 -22 (no genuine issue of material fact that adequate warning with regard to air rifle would not have prevented harm where plaintiff admitted that he was aware that serious eye injury could result from misuse of air rifle).
There is no case law in Connecticut that considers whether an oyster contaminated with vibrio is a defective product. This issue has been addressed in a number of other states, however. In Edwards v. Hop Sin, Inc., 140 S.W.3d 13, 16 (Ky.App. 2003), the Kentucky Court of Appeals held that "[v]ibrio notwithstanding, it is not per se unreasonable to market raw oysters." The court relied upon the record, which established that "there are no reasonably available alternatives to bacteria-laced oysters" and that vibrio "poses little threat of harm to healthy persons." Id. In Simeon v. Doe, 618 So.2d 848, 851 (La. 1993), the Louisiana Supreme Court held that "we are unable to say that raw oysters containing the vibrio . . . bacteria are unreasonably dangerous to the ordinary consumer." The court relied upon the record, which established that vibrio "poses, little, if any, threat to a healthy person" and "is only harmful to those persons with specific underlying disorders such as liver or kidney disease." Id. The court relied upon 2 Restatement (Second), supra, § 402A, comment (i), in determining that "the `defect' is really found in the person rather than the product, much in the same way that sugar is harmful only when used by someone with diabetes." Id. Nevertheless, in Ayala v. Bartolome, 940 S.W.2d 727, 732 (Tex.App. 1997), the Texas Court of Appeals held that the "summary judgment evidence does not conclusively establish that the bacteria is not unreasonably dangerous to the ordinary consumer. Rather, it establishes that there is a fact question of whether healthy people who eat raw oysters contaminated with the bacteria are also susceptible to the infection."
In the present case, the defendant has submitted sufficient evidence to establish that raw oysters contaminated with vibrio are not unreasonably dangerous. Included with the defendant's file from the Wallingford health department is the transcript of a telecommunication with Roger Mshar, from the Connecticut Department of Public Health food protection program, dated September 14, 2006. The transcript states that the oysters were traced to Galveston, Texas. Furthermore, the transcript states: "It is known that a majority of oysters from this bed routinely test positive for [v]ibrio. This is not considered a contaminated bed or polluted waters. Vibrio is naturally occurring due to the pH of the waters." Pursuant to the FDA report, vibrio is found in all of the coastal waters of the United States. In his deposition transcript, Simon testified that "[i]t's well known that vibrio contaminates oysters." Simon further testified that "most people can consume raw shellfish without medical problems, whether they have liver dysfunction or not." Nevertheless, Simon testified that individuals with liver dysfunction have a significantly higher risk of serious illness and/or death if exposed to vibrio. Furthermore, the FDA report states that primary septicemia "follows consumption of raw seafood containing [vibrio] by individuals with underlying chronic disease, particularly liver disease."
The autopsy report listed the final cause of death of the plaintiff's decedent as vibrio vulnificus sepsis with other significant decisions including chronic liver disease.
While the plaintiff argues that the determination of whether a product is unreasonably dangerous is a question of fact to be determined by the jury, he has offered no evidence that refutes the defendant's evidence or establishes that a genuine issue of material facts exists as to whether an oyster contaminated with vibrio is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it. The evidence establishes that raw oysters contaminated with vibrio pose little threat of harm to healthy individuals and are only harmful to individuals with specific underlying disorders. "Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm . . ." 2 Restatement (Second), supra, § 402A, comment (i). Therefore, on this issue, the court finds that there is no issue of material fact and the defendant's motion for summary judgment is granted.
On the other ground asserted by the defendant, that notice was adequate, there is a genuine issue of material fact as to whether the warning provided by the defendant was required, and if so, whether it was adequate. "[A] product may be defective because a manufacturer or seller failed to warn of the product's unreasonably dangerous propensities." Sharp v. Wyatt, Inc., supra, 31 Conn.App. 833. Pursuant to § 19-13-B42(m)(1)(F) of the Regulations of Connecticut State Agencies: "The consumer shall be informed of the risks involved with the consumption of raw or undercooked animal food by means of posters, brochures, menu advisories, label statements, table tents, placards, or other written means available at the food service establishment which state: `thoroughly cooking meats, poultry, seafood, shellfish, or eggs reduces the risk of foodborne illness.'" In its answer to Sam Rust's interrogatories, the defendant stated that it posted a warning on the sneezeguard of the buffet above the raw oysters that stated: "Thoroughly cooking meats, poultry, seafood, shellfish or eggs reduces the risk of foodborne illness."
The department of public health compliance guide states: "The consumer advisory requirement is met when both a disclosure and reminder are provided. Disclosure is achieved when there is a clear identification of animal-derived foods that are sold raw or undercooked and of items that either contain or may contain (to allow for ingredient substitution) such raw or undercooked ingredients. The reminder is achieved when the statement, `thoroughly cooking meats, poultry, seafood, shellfish, or eggs reduces the risk of foodborne illness' is displayed by means of posters, brochures, menu advisories, label statements, table tents, placards, or other written means available at the food service establishment."
While the defendant has presented evidence that it has complied with the requirements issued by the Connecticut Department of Public Health, this is not conclusive evidence that the warning was adequate. See, e.g., Wagner v. Clark Equipment Co., supra, 243 Conn. 190 ("Evidence that a product complies with an OSHA regulation that addresses the safety of the product may be probative of whether the product meets consumer expectations regarding its safety" [emphasis added]); Considine v. Waterbury, 279 Conn. 830, 864, 905 A.2d 70 (2006) ("statutes, regulations, ordinances, and other safety codes can be considered as some evidence of the standard of care" [emphasis added]). Furthermore, under § 52-572q(b), it is up to the trier of fact to determine whether instructions or warnings were required, and if so, whether they were adequate. Most importantly, the plaintiff argues that the warning does not discuss: (1) the possibility that the oysters may contain vibrio; (2) the risk factors associated with liver dysfunction and chronic alcohol abuse; and (3) the serious illness and/or death that may result. By example, the plaintiff has submitted Sam Rust's answer to the defendant's interrogatories, in which it admitted that all its oysters include tags that contain the additional language: "Individuals with certain health conditions such as liver disease, chronic alcohol abuse, diabetes, cancer, stomach, blood or immune disorders may be at higher risk if these foods are consumed raw or undercooked. Consult your physician or public health official for further information." Therefore, there is an issue of fact as to whether the warning provided by the defendant was adequate.
Regardless of what constitutes an adequate warning, the plaintiff still must prove "by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, the claimant would not have suffered the harm." General Statutes § 52-572q(c). "The question should be submitted to the trier of fact if there is room for a reasonable disagreement." (Internal quotation marks omitted.) Battistoni v. Weatherking Products, Inc., supra, 41 Conn.App. 563. In the present case, there is a genuine issue of material fact as to whether the plaintiff's decedent would have suffered the harm had an allegedly adequate warning been provided. Unlike the plaintiff in Haesche v. Kissner, supra, 229 Conn. 219-22, who admitted that he was already aware that a serious eye injury could result from the misuse of an air rifle, and thus that an adequate warning would not have prevented the harm, the defendant has failed to submit any such evidence with regard to causation. While Wein, the attending physician of the plaintiff's decedent, testified that he never diagnosed her with liver dysfunction, he identified her liver dysfunction and advised her with regard to the condition of her liver. Nevertheless, Wein testified that he did not provide her with any warning about the dangers of eating raw seafood by individuals with certain liver conditions. Therefore, there is an issue of material fact as to whether a warning, specifically directed to individuals with liver dysfunction, if required, would have prevented the plaintiff's decedent from eating the raw oysters, and thus, prevented the harm.
For the foregoing reasons, the defendant's motion for summary judgment is granted in part and denied in part.