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HomeMy WebLinkAbout99-5049 CIVILJOHN LIDDICK and SYRA LIDDICK, his wife, Plaintiffs TWIN ARCHES, A/K/A McDONALD' S STORE NO. 451 AND RICHARD WOODRUFF A/K/A McDONALD' S 6025, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-5049 CIVIL TERM CIVIL ACTION - LAW IN RE: DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J, OLER,1 GUIDO, JJ. OPINION AND ORDER OF COURT On August 22, 1997, Plaintiff John Liddick was stricken with acute salmonella poisoning. He filed the instant action against the defendants alleging that his condition was caused by faulty Chicken McNuggets consumed at their restaurants. Before us are defendants' motions for summary judgment. The parties have briefed and argued their respective positions. This matter is now ready for disposition. STANDARD OF REVIEW Pennsylvania Rule of Civil Procedure 1035.2 provides, in relevant part, as follows: Rule 1035.2 Motion After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law ~ Oler, J. did not participate in the consideration or disposition of this case. 99-5049 CIVIL TERM (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P. 1035.2(2). In determining whether to grant a motion for summary judgment, we must view the record in the light most favorable to the non-moving party. Ertel v. Patriot News Co., 544 Pa. 93,674 A.2d 1038 (1966). Summary judgment may only be granted in cases that are clear and free from doubt, d. H. Ex Rel. Hoffman v. Pellak, 764 A.2d 64 (Pa. Super. 2000). FACTS The onset of plaintiff's symptoms occurred between 10:00 p.m. and 11:00 p.m. on August 22, 1997. At that time, he experienced severe abdominal pain and diarrhea. He was eventually hospitalized. Cultures of his stool were significant for the presence of salmonella, leading to the conclusion that he suffered from acute salmonella poisoning.2 The incubation period for salmonella is eight (8) to forty-eight (48) hours.3 During the forty-eight hours prior to the onset of his symptoms, plaintiff consumed English muffins, Chicken McNuggets and a Big Mac at the defendants' restaurants.4 Except for some soft drinks, he did not ingest anything from any other source during that time period. While poultry products are commonly linked to salmonella, eggs, beef and dairy products can also be sources of the bacteria.5 2 Report of Plaintiffs expert, dated June 20, 2000. 3 Report of Plaintiffs expert, dated March 2, 2001. 4 The food items eaten at defendant Woodruffs restaurant were consumed only six or seven hours prior to the onset of symptoms. 5 Report of plaintiffs expert, dated March 2, 2001. 2 99-5049 CIVIL TERM DISCUSSION Unless there is an obvious causal relationship between the injury and the incident giving rise to the cause of action, medical evidence is necessary to establish the causal connection. Smith v. German, 434 Pa. 47, 253 A.2d 107 (1969). Despite plaintiff's protestations to the contrary, the causal relationship between his symptoms and defendants' food is far from obvious. There is simply nothing in the record to suggest that salmonella poisoning is contracted solely by the ingestion of food products. To the contrary, the record clearly suggests that there are other sources by which salmonella can be transmitted, including improper hand washing after dealing with fecal matter.6 Therefore, medical evidence is necessary to provide the causal connection. Defendants argue that plaintiff has not come forward with any competent medical evidence to prove that causal link. Therefore, they contend that their motions for summary judgment should be granted.7 We agree. "Expert testimony is admissible when, taken in its entirety, it expresses reasonable certainty that the (incident) was a substantial factor in bringing about the injury." Cohen v. Albert Einstein Med Center, 405 Pa. Super. 392, 400, 592 A.2d 720, 724 (1991). The strongest medical evidence to link defendants' food with plaintiff' s symptoms comes from plaintiff' s expert Dr. Kormis. Even assuming that plaintiff ate no food aside from that consumed at defendants' restaurants, Dr. Kormis could only say "I would feel that the preponderance of evidence would relate his salmonella to eating the (defendants' food).''8 This is clearly insufficient. As our Supreme Court has stated: 6 It is noteworthy that plaintiff admits to having spent time each day working at a horse barn. 7 Defendant Woodruff also contends that his motion for summary judgment should be granted because the items eaten at his restaurant were not consumed within the incubation period. We agree. 8 Report of plaintiff's expert dated March 2, 2001. 99-5049 CIVIL TERM ·.. As we said inMenarde v. Philadelphia Trans. Co., 376 Pa. 497, 103 A.2d 681 (1954), summarizing the case law on the subject: "* * * (T)he expert has to testify, not that the condition of claimant might have, or even probably did, come from the accident, but that in his professional opinion the result in question came from the cause alleged. A less direct expression of opinion falls below the required standard of proof and does not constitute legally competent evidence (citing cases)." The issue is not merely one of semantics. There is a logical reason for the rule. The opinion of a medical expert is evidence. If the fact finder chooses to believe it, he can find as fact what the expert gave as an opinion. For a fact finder to award damages for a particular condition to a plaintiff it must find as a fact that that condition was legally caused by the defendant's conduct. Here, the only evidence offered was that it was "probably" caused, and that is not enough. Perhaps in the world of medicine nothing is absolutely certain. Nevertheless, doctors must make decisions in their own profession every day based on their own expert opinions. Physicians must understand that it is the intent of our law that if the plaintiff' s medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record with which a jury can make a decision with sufficient certainty so as to make a legal judgment. McMahon v. Young, 442 Pa. 484, 485-86, 276 A.2d 534, 535 (1971). The plaintiff has failed to produce competent medical evidence to prove the causal relationship between his salmonella poisoning and the ingestion of defendant's food products. Therefore, the defendants' motions for summary judgment must be granted.9 9 Since the loss of consortium claim asserted by plaintiff Syra Liddick is a derivative claim, summary judgment must also be granted as to it. Krysmalski by Krysmalski v. Tarasovich, 424 Pa. Super. 121,622 A.2d 298 (1993). 4 99-5049 CIVIL TERM ORDER OF COURT AND NOW, this 28TM day of SEPTEMBER, 2001, for the reasons set forth in the accompanying opinion, the Defendants' Motions for Summary Judgment are GRANTED. By the Court, /s/Edward E. Guido Edward E. Guido, J. Stephen G. Held, Esquire For the Plaintiff John F. Yaninek, Esquire For the Defendants :sld