Burger Time: The burden of proof in Florida food poisoning cases

One would think that food poisoning, especially the serious E coli type, might not be that difficult to establish in litigation.  The plaintiff eats food, winds up shortly thereafter with difficult symptoms, rushes to the hospital for treatment, and to top it off, garners a diagnosis of E coli.  Relatively straightforward, right? Apparently, it’s not so simple in Florida.

In Colson v. Tampa Hotel-VEF IV Operator, Inc., 8:10-CV-9-T-30TBM, 2011 WL 5553840 (M.D. Fla. Nov. 15, 2011), the sole issue before the court on the defendant’s motion for summary judgment was causation.  Could the plaintiff, who claimed she contracted E coli after eating a tainted cheeseburger at a hotel, prove that the cheeseburger was, in fact, the culprit?

The answer: no. According to the Florida federal court, “[i]n food poisoning cases, while a plaintiff may establish causation by either direct or circumstantial evidence, courts have routinely found that a mere showing that a person became sick subsequent to eating food is insufficient.”  Instead, the plaintiff must provide some evidence that the food in question was actually contaminated or tainted, either through evidence of a food recall, evidence that others became sick after eating the same food, or that the food smelled or tasted funny at the time of consumpton.

So what did the Plaintiff argue in this case?  The court summarizes her case as follows:

Here, Plaintiff contends that she has presented sufficient evidence showing that she contracted E coli from consuming Defendants’ cheeseburger. First, she points out that she started to feel ill approximately twenty-two hours after consuming the burger, which is approximately within the accepted one to nine day incubation period for E coli. Second, Colson’s expert witness testified in his deposition that the cheeseburger was more likely than not the source from which Plaintiff contracted E coli. Asked to explain the basis of his opinion, Dr. Delaportas stated that since Colson “had a cheeseburger in the time frame of incubation, and that is more often the implicating food in these cases than not…I believe it’s more likely than not it was that cheeseburger. I cannot rule out other sources.” (Depo. Of Delaportes, 47-48). Based on this evidence, Plaintiff contends that she has presented sufficient evidence of causation in order to survive a motion for summary judgment.

The court didn’t buy it.

The plaintiff’s expert certainly didn’t help her out very much, testifying that while he believed that the cheeseburger caused her illness, he could not rule out other causes.  Thanks, doc.

In the end, without further proof of a causal link between the cheeseburger and the plaintiff’s E coli, the defendant’s motion for summary judgment was granted.

Comments

  1. At least the Court gives some guidance for what Plaintiffs need to show… “showing that the actual food she consumed (or the stock of beef from which it came) was actually contaminated, that Defendants’ beef was subject to recall, that any other patrons became ill upon consuming Defendants’ products, that Defendants had improper food handling procedures,[2] that Defendants had shoddy cleanliness, and/or food storage procedures, and/or that the particular burger she consumed looked, smelled, and/or tasted unusual, and/or raw.”

    Future Plaintiffs need to drill down and get this stuff in discovery. Florida also allows Plaintiffs to interview former employees which is another source to investigate and develop this kind of proof.

    And I agree, “plaintiff’s expert certainly didn’t help”… Put a star on this guy’s head and put him down on the “never call as an expert again in a million years” list.

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