On a warm October afternoon two years ago, wearing one of the yarmulkes that Jewish funeral directors provide for non-Jewish attendees, I helped shovel red Georgia dirt into the open grave of an old client and friend. As I did so, I pondered the unanswered question whether long-term side effects of her food poisoning a quarter century earlier had contributed to her death after years of internal organ illnesses.
A recent decision of the Georgia Supreme Court on what is required to get a food poisoning case to a jury brought that grim saga back to mind.
In Patterson v. Kevon, 2018 WL 3965745, the Georgia Supreme Court unanimously ruled on .August 20, 2018 that circumstantial evidence was sufficient to allow a jury trial on a suit against a caterer for alleged food poisoning of guests. In doing so, the Supreme Court overturned a line of Court of Appeals authority that classified food poisoning cases as “a unique species of negligence cases” imposing a heavier burden upon the plaintiff to show proximate cause than that generally required of nonmovants on summary judgment.
Briefly summarized, the Pattersons became ill after eating food at a wedding rehearsal dinner prepared, catered, and served by Big Kev’s Barbeque. They sued for negligence, violation of the Georgia Food Act (OCGA § 26-2-20 et seq.), and products liability, alleging that the food at the dinner was defective, pathogen-contaminated, undercooked, and negligently prepared.
The caterer moved for summary judgment, showing that the Pattersons also consumed items prepared by others at the rehearsal dinner, such as dessert or alcohol, as well as improperly stored leftovers from the rehearsal dinner and food at the wedding reception the following day. In addition, the caterer showed that the Pattersons ate other meals, including fast food, and drove to Florida before Mr. Patterson began to feel ill, three days after the rehearsal dinner, and that Mrs. Patterson did not begin to feel ill until several days later. In addition, the caterer asserted that the owners of the event venue, their employees, and other guests who consumed the food did not become ill.
On the other hand, the Pattersons presented evidence that several people became ill with similar symptoms after eating the caterer’s food at the rehearsal dinner. Both Mr. Patterson and a guest at the rehearsal dinner who thecaterer’s meal but did not consume food at the wedding reception, both tested positive for salmonella. Three other guests testified that they became ill at around the same time after eating at the rehearsal dinner. Four other people who became ill, including Mrs. Patterson, did not eat at the wedding reception, and other guests who became ill testified that they did not consume dessert, drinks, or leftovers. As many as 16 to 20 people became ill after the dinner.
The trial court granted summary judgment and the Court of Appeals affirmed 5-4, holding:
suits alleging illness from food poisoning that are based entirely on circumstantial evidence are a unique species of negligence cases, and our prior decisions have required plaintiffs in this context to bring forth evidence demonstrating that the only reasonable hypothesis for why they became ill was due to acts or omissions of the defendant, to the exclusion of all other reasonable theories. This special element prevents a plaintiff from recovering solely on the basis of speculation and conjecture and requires plaintiffs to engage in a rigorous examination of all reasonable theories of contamination. This standard also shields defendants from what, in some cases, may amount to fallacious post hoc, ergo propter hoc arguments that advance the plaintiff’s theory of contamination. In so doing, this rule reserves to the jury only those cases in which evidence brought forth by the plaintiff establishes a clear and direct link between the defendant’s food and the plaintiff’s injuries.
Two vigorous dissents, by Judges Doyle and McFadden, detailed the Pattersons’ evidence and pointed out that the standard established by the majority was more appropriate for the burden of proof at trial rather than on motion for summary judgment.
The Supreme Court in an opinion authored by Justice Michael Boggs unanimously rejected any requirement to exclude every other reasonable hypothesis, noting that the Court of Appeals majority opinion conflated summary judgments cases with decisions on appeals after jury verdicts. These cases are highly fact specific. In most cases, either for plaintiffs or defendants, have turned upon the availability or unavailability of expert testimony evidence about presence or absence of pathogens. In this case, the caterer failed to counter the plaintiffs’ evidence of proximate cause.
This decision removes an anomaly the consideration of summary judgement motions on food poisoning cases in Georgia. However, the plaintiff still must prove causation. As a practical matter, “jury proof” still requires a preponderance of evidence that excludes other reasonable hypotheses of cause. In evaluating a claim of food poisoning, I want lab tests to prove what pathogen caused an illness, probability that it was related to the food consumed, evidence that people who ate the same food got sick and companions who did not eat the same food did not get sick, and some way to minimize other explanations of illness.
In that food poisoning case that I handled years ago, three coworkers at a bank went to dinner together. Two had fried chicken while the third ate something else. Two fell ill with similar symptoms. One of them was hospitalized and tests of stool samples showed the presence of Campylobacter which is common in uncooked poultry. Consumption of undercooked poultry can easily cause gastic infection within 2 to 5 days.
My client recovered from the acute gastric illness and we settled her case for what we felt was a good amount. But we stayed in touch over the subsequent years. Long-term complications of Campylobacter food poisoning infections are rare. But this lady developed complex long-term problems with internal organs which led to her death about 25 years after her food poisoning. No doctors could directly relate her lethal illness to the food poisoning, but as I took my turn tossing a shovel of dirt into her grave, I wondered if a supper of undercooked chicken contributed to her death a so many years later.
If I handle food poisoning cases in the future, I will be sure to explore with physicians and experts the risks of long-term health consequences long after the initial acute illness has resolved.
.Ken Shigley is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. He is licensed to practice law in Georgia. Representation of clients in others states, which possible, can be undertaken only in strict compliance with the multijurisdictional practice and pro hac vice rules of the other state.