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From Products Liability Law Daily, January 28, 2019

Strict liability, warranty breach claims against resort for food-borne illness can proceed

By Georgia D. Koutouzos, J.D.

The South Carolina federal court denied a local resort’s effort to dismiss an action by a patron who allegedly had contracted Campylobacter after having eaten a fish dinner at the vacation spot’s restaurant, rejecting the innkeeper’s challenges to the ailing woman’s expert.

A woman who became ill and developed reactive arthritis from a bacterial infection allegedly due to a piece of flounder she consumed while vacationing at a South Carolina resort could maintain strict liability and breach of warranty claims against the resort owner, the federal court in that state determined, nevertheless granting summary judgment favoring the resort on her negligence claim for lack of causation. Noting that the surviving claims hinged upon the testimony of the ailing woman’s expert, the court denied the resort’s motion to exclude that testimony for lack of reliability or the expert’s purportedly inadequate qualifications (Kiessling v. Kiawah Island Inn Co. LLC, January 25, 2019, Norton, D.).

After having experienced gastrointestinal and reactive arthritic symptoms due to her exposure to the Campylobacter bacteria allegedly present in a flounder entrée she ate at a restaurant in the resort she and her family had been staying while on vacation in South Carolina, a woman filed suit against the resort, Kiawah Island Inn Co. LLC (KIIC). The woman and her husband asserted claims for negligence and recklessness, breach of warranty, and strict liability, to which the resort responded by filing two motions: one seeking summary judgment in its favor and the other seeking to exclude the testimony of the plaintiffs’ expert.

According to KIIC, the couple was unable to prove that the fish served by the resort was the cause of the ailing woman’s injuries (an element in their negligence, breach of warranty, and strict liability claims) and that as a result, those claims failed. The couple countered that their expert—an experienced infectious disease specialist and epidemiologist—would provide the causation evidence, and that the case would be a "battle of experts."

Negligence claim. Because South Carolina does not recognize the doctrine of res ipsa loquitur, a plaintiff asserting a negligence claim must prove that the defendant caused her injury. In that regard, even if their expert’s opinion was admitted, the woman and her spouse could not prove their negligence claim as a matter of law. The couple’s expert opined that the Campylobacter bacteria came from the flounder, but there was no evidence that KIIC caused the Campylobacter to infect the flounder with that bacteria, causing the woman’s injury. Therefore, the resort was entitled to summary judgment on the couple’s negligence claim.

Strict liability and breach of warranty claims. Unlike the negligence claim, the couple did not have to prove that KIIC had caused the flounder to be contaminated with Campylobacter, but they did have to prove that the allegedly contaminated product sold by the inn was unreasonably dangerous and that it was the cause of the ailing woman’s injuries. As that was what their expert was seeking to establish, the couple’s strict liability claim only could survive summary judgment if the expert’s testimony was admissible.

Similarly, the couple could not meet their burden of proof on the breach of warranty claim without their expert’s testimony. As a result, the key inquiries were whether he was qualified to provide his expert opinion on causation and whether his opinion was reliable. If so, then summary judgment was not appropriate for the strict liability and breach of warranty claims at the current stage of the litigation, the court declared.

Admissibility of expert testimony. KIIC challenged the qualifications of the couple’s expert because of his lack of specific experience with Campylobacter. The couple responded to the resort’s objections by providing the expert’s curriculum vitae to show that he was an experienced infectious disease specialist and epidemiologist who was qualified to serve as an expert about food-borne illnesses. Moreover, the couple pointed to a series of questions and answers in the expert’s deposition transcript in which they contended that he proved his knowledge about Campylobacter and its connection to gastroenteritis and reactive arthritis.

The court found that he was sufficiently qualified to provide an opinion in this case, given that he began working with infectious diseases as a teaching fellow after obtaining his MD and completing his residency, and then got a post-doctoral fellowship in infectious diseases and continued his career working at the Centers for Disease Control. While he had never testified in a food-borne illness case before, his infectious disease training included Campylobacter, and he had treated cases of Campylobacter, the court observed, noting that he had discussed his knowledge of Campylobacter throughout the deposition. Any gaps in the expert’s knowledge about that bacteria were an issue for the jury, the court explained.

As for the reliability of his testimony, the court said that while the basis of the expert’s opinion was not particularly robust, it was sufficiently reliable to be heard by a jury. The fact that he did not consider the opinion of another guest who also had become ill after having consumed the flounder did not bear on the reliability of his methodology, the court held, instructing that the decision to not examine certain evidence goes to the weight of the opinion and not its admissibility. As a result, that factor did not support the exclusion of the expert’s testimony.

Furthermore, while the reliability of the expert’s methodology, i.e., differential diagnosis, was a close call, the court found that it was sufficiently reliable to be heard by the jury. Accordingly, the resort’s motion to exclude the testimony of the couple’s expert was denied, thereby allowing their strict liability and negligence claims to proceed.

The case is No. 2:17-cv-02146-DCN.

Attorneys: Dale Ernest Akins (Akins Law Firm) for Erna Kiessling. James B. Hood (Hood Law Firm) for Kiawah Island Inn Co. LLC d/b/a Kiawah Island Golf Resort.

Companies: Kiawah Island Inn Co. LLC d/b/a Kiawah Island Golf Resort

MainStory: TopStory FoodBeveragesNews ExpertEvidenceNews CausationNews SouthCarolinaNews

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