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Burnham | Brown Obtains Summary Judgment in Food Poisoning Case Involving Death of Twin Fetuses

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Attorney Charles Alfonzo recently obtained summary judgment in favor of the franchisee of a major fast food restaurant chain. In this case, plaintiff alleged that food purchased from the restaurant contained E. Coli and other bacteria and that ingestion of endotoxins from this bacteria caused premature labor and the death of twins she was carrying. The complaint was initiated on the finding of E. Coli and other bacteria on a swab culture of the placenta following delivery. In the initial motion for summary judgment, however, Defendant was able to demonstrate that the premature delivery and death was not caused by bacterial infection and that timing of the onset of symptoms was incompatible with the known incubation periods for the bacteria at issue. In response, Plaintiff changed her theory of causation stating that it was not bacterial infection but endotoxins from the bacteria that caused toxic shock syndrome and resulted in her injuries. The Court, on its own motion, postponed hearing on the motion and gave plaintiff leave to retain an expert to support the new theory. This expert was deposed and the motion renewed. Defendant demonstrated that Plaintiff's new theory of causation had no support in the medical/toxicological literature, that the opinions of plaintiff's expert were not based on matter reasonably relied upon by experts in the field, and that the onset of symptoms was incompatible with the established incubation periods for the bacteria. The Court sustained objections to plaintiff's causation testimony and granted the motion for summary judgment finding there was no triable issue of material fact on the essential element of medical causation.

Attorney Charles Alfonzo recently obtained summary judgment in favor of the franchisee of a major fast food restaurant chain. In this case, plaintiff alleged that food purchased from the restaurant contained E. Coli and other bacteria and that ingestion of endotoxins from this bacteria caused premature labor and the death of twins she was carrying. The complaint was initiated on the finding of E. Coli and other bacteria on a swab culture of the placenta following delivery. In the initial motion for summary judgment, however, Defendant was able to demonstrate that the premature delivery and death was not caused by bacterial infection and that timing of the onset of symptoms was incompatible with the known incubation periods for the bacteria at issue. In response, Plaintiff changed her theory of causation stating that it was not bacterial infection but endotoxins from the bacteria that caused toxic shock syndrome and resulted in her injuries. The Court, on its own motion, postponed hearing on the motion and gave plaintiff leave to retain an expert to support the new theory. This expert was deposed and the motion renewed. Defendant demonstrated that Plaintiff's new theory of causation had no support in the medical/toxicological literature, that the opinions of plaintiff's expert were not based on matter reasonably relied upon by experts in the field, and that the onset of symptoms was incompatible with the established incubation periods for the bacteria. The Court sustained objections to plaintiff's causation testimony and granted the motion for summary judgment finding there was no triable issue of material fact on the essential element of medical causation.