Barshaw v. Pilgrim's Corporation

• Court: District Court, W.D. Washington
• Decided: April 25, 2023
• Docket: 2:22-cv-01673
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 4 AT SEATTLE 5

6 JEFFREY M. BARSHAW, and CINDY Case No. C22-1673RSM WIERSMA-BARSHAW as individuals and 7 as a marital community, ORDER DENYING MOTION FOR 8 SUMMARY JUDGMENT ON Plaintiffs, AFFIRMATIVE DEFENSE 9 v. 10

11 PILGRIMS PRIDE COMPANY et al.,

12 Defendants.

14 I. INTRODUCTION 15 This case comes before the Court on Plaintiffs’ “Motion for Order on Summary 16 Judgment Dismissing the Affirmative Defense of Failure to Mitigate.” Dkt. #15. Defendant 17 Pilgrims Pride Company (“Pilgrims”) has filed an opposition. Dkt. #18. The Court has 18 19 determined that it can rule on this issue without oral argument. For the following reasons, the 20 Court DENIES Plaintiffs’ Motion. 21 II. BACKGROUND 22 On November 6, 2019, Plaintiff Jeffrey Barshaw purchased a box of frozen “Country 23 Post” brand chicken, manufactured by Defendant Pilgrims. Dkt. #1-3; Dkt. #16 (“Barshaw 24 25 Decl.”), ¶ 3. 26 He returned home, opened one of the sealed bags of frozen chicken, reached in, and had 27 his palm pierced by a pair of metal shears inside the bag. Id. 28 He called his mom, who told him to go to a hospital. Dkt. #16 at ¶ 4. He went to urgent 1 2 care, where he says his hand was “wrapped,” he was advised that he had a nerve injury and that 3 they could not treat it further, and that “if the problem persisted, I should seek medical attention 4 from the emergency department.” Id. 5 The next day he saw a doctor. She consulted with a hand surgeon who recommended 6 that Mr. Barshaw go to the emergency room if his symptoms worsened or persisted. Id. at 6. 7 8 On November 11, 2019, after his hand “became red, irritated and increasingly painful” he went 9 to the emergency room. Id. at 7. Hand surgery followed. Id. at 10. 10 This case was filed in King County Superior Court on February 8, 2022. Dkt. #1-3. 11 Plaintiffs alleged Defendants’ actions were negligent and violated several other laws including 12 13 the Washington Products Liability Law, RCW 7.72 et seq. Id. The case was removed to this 14 Court on November 22, 2022. Prior to removal, the state court found Pilgrims liable under 15 RCW 7.72. As a result, the parties agree that trial will address damages only. Dkt. #12 at 2. 16 Pilgrims filed an Answer with 47 affirmative defenses, including one for failure to 17 mitigate. Dkt. #15 at 2. Plaintiffs now move for summary judgment dismissal of that 18 19 affirmative defense only. Dkt. #15. 20 III. DISCUSSION 21 A. Legal Standard for Summary Judgment 22 Summary judgment is appropriate where “the movant shows that there is no genuine 23 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 24 25 R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are 26 those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at 27 248. In ruling on summary judgment, a court does not weigh evidence to determine the truth of 28 the matter, but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, 1 2 Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & 3 Meyers, 969 F.2d 744, 747 (9th Cir. 1992)). 4 On a motion for summary judgment, the court views the evidence and draws inferences 5 in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v. U.S. 6 Dep't of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable 7 8 inferences in favor of the non-moving party. See O’Melveny & Meyers, 969 F.2d at 747, rev’d 9 on other grounds, 512 U.S. 79 (1994). However, the nonmoving party must make a “sufficient 10 showing on an essential element of her case with respect to which she has the burden of proof” 11 to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 12 13 B. Analysis 14 Plaintiffs cite a declaration of Mr. Barshaw and ask the Court “to find that there is no 15 genuine issue of material fact whether Barshaw acted reasonably following his injury…. 16 [because] he followed the advice of his health care providers and sought surgery at the earliest 17 available opportunity.” Dkt. #15 at 2. Plaintiffs point to the Washington Pattern Instructions 18 19 for avoidable consequences, which discuss the “failure of the injured person to exercise 20 ordinary care to avoid or minimize such new or increased damage,” and which urge the jury to 21 consider “the nature of the treatment, the probability of success of such treatment, the risk 22 involved in such treatment, and all of the surrounding circumstances.” Id. at 5 (citing WPI 23 33.01 and WPI 33.02). 24 25 Pilgrims rebut Mr. Barshaw’s declaration with citations to the medical records. For 26 example, the record for Mr. Barshaw’s initial urgent care visit states “I recommend patient go to 27 Swedish Mill Creek ER for further evaluation of his wound and treatment…. ER notification 28 made to the ER.” Dkt. #19-1 at 6. At Mr. Barshaw’s next medical appointment, the records 1 2 state the patient “[w]ent to [urgent care], was told to go to ER but he didn’t. He went home 3 instead.” Dkt. #19-2 at 3. Pilgrims also cites to testimony from its expert witness. 4 On Reply, Plaintiffs point out that Mr. Barshaw may have avoided the emergency room 5 due to financial considerations. Dkt. #21 at 7–8. 6 The medical records appear to contradict Plaintiff’s version of events. Did he decline to 7 8 follow medical advice? Was that reasonable? Whether this is a flat contradiction or otherwise is 9 up to the jury. The issue at hand is failure to mitigate. Delaying an ER visit is obviously 10 material given the subsequent exacerbation of Mr. Barshaw’s injury. The Court must draw all 11 reasonable inferences in favor of the non-moving party. Pilgrims does not need to submit 12 13 expert testimony to the Court to prove anything at this stage in the litigation. Because there is a 14 genuine dispute of material fact, summary judgment cannot be granted. The Court cannot rule 15 as a matter of law that his actions were reasonable because he felt he could not afford a trip to 16 the emergency room. Whether or not Mr. Barshaw failed to mitigate his damages is an issue of 17 fact for the jury. 18 19 IV. CONCLUSION 20 Having reviewed the relevant briefing and the remainder of the record, the Court hereby 21 finds and ORDERS that Plaintiffs’ “Motion for Order on Summary Judgment Dismissing the 22 Affirmative Defense of Failure to Mitigate,” Dkt. #15, is DENIED. 23 DATED this 25th day of April, 2023. 24

25 A 26 RICARDO S. MARTINEZ 27 UNITED STATES DISTRICT JUDGE 28