Burnett v. Essex Insurance Co.

773 So. 2d 786, 0 La.App. 3 Cir. 0809, 2000 La. App. LEXIS 2745, 2000 WL 1693141
Louisiana Court of Appeal·Decided November 2, 2000·No. No. 00-809·Published·Cited by 3 cases

Opinion

| SULLIVAN, Judge.

Cheryl Burnett and her husband, Stonewall Burnett, sued Betty Deville, d/b/a Log Cabin Catfish, and Essex Insurance Company, alleging that they contracted food poisoning while eating at the Log Cabin restaurant on December 19, 1997.1 The trial court dismissed the Plaintiffs’ claims upon finding that they failed to prove the food consumed at the restaurant was the cause of their symptoms. For the following reasons, we affirm.

Facts

At about 6:00 p.m. on December 19, 1997, Mr. and Mrs. Burnett went to the Log Cabin restaurant, also known as “Betty’s” to celebrate Mrs. Burnett’s birthday. From the seafood buffet, Mrs. Burnett chose salad with French dressing, oysters, fish, and boiled shrimp; Mr. Burnett selected salad with the same dressing, fish, and fried shrimp. Both Mr. and Mrs. Burnett testified that they noticed a strange after-taste to the food, possibly from the salad dressing, and about thirty or forty minutes later, Mrs. Burnett began to experience abdominal cramps and nausea. According to Mrs. Burnett, she and her husband complained to a waitress and to a cashier that something had spoiled on the buffet, but neither employee investigated the situation. Before leaving the premises, Mrs. Burnett vomited in the parking lot. On the way home, the Bur-netts had to stop because both became sick.

About thirty minutes after returning home, the Burnetts went to the emergency room at Oakdale Community Hospital, where Dr. Blaine Lavergne diagnosed both of them with “Possible Food Poisoning.” Mr. Burnett testified that they were given medications for nausea and cramping before being discharged. On December 23, ls>1997, their family physician, Dr. M.R. Ghanta, readmitted them to the hospital after both reported vomiting, diarrhea, and abdominal cramps for the past three days. Dr. Ghanta ordered IV fluids for dehydration and medications for nausea, diarrhea, and pain. He discharged them both with a diagnosis of gastroenteritis and dehydration. Because the Burnetts did not remain for any cultures to be taken, Dr. Ghanta could not specify the etiology of the infection. On December 27, 1997, Dr. Ghanta [788] again admitted the Burnetts to the hospital with similar symptoms.

Dr. Ghanta had treated the Burnetts for abdominal problems before and after December of 1997. In August of 1997, Dr. Ghanta saw Mrs. Burnett for chronic abdominal pain after she presented a history of peptic ulcer disease and chronic pan-creatitis. Just one month before the present incident, from November 16 through 20, 1997, Dr. Ghanta hospitalized Mrs. Burnett for intractable abdominal pain, with a diagnosis of gastritis, an acidic pre-ulcer condition, chronic back pain, and chronic abdominal pain. One month after the incident at the Log Cabin restaurant, on February 13, 1998, Dr. Ghanta again treated Mrs. Burnett for nausea, vomiting, and diarrhea. Although Mrs. Burnett had a history of pancreatitis, which is known to cause diarrhea, Dr. Ghanta questioned that diagnosis because of her normal enzyme reports. He later suspected that she suffered from irritable bowel syndrome, which can be exacerbated by stress and nervousness. In October of 1998, Mrs. Burnett was again diagnosed with gastroenteritis after reporting abdominal cramps and diarrhea for four days.

Mr. Burnett had been treated by Dr. Ghanta on many occasions for gastroenteritis since 1989, as well as for hiatal hernia, acid reflux, and gall stones. Dr. Ghanta estimated that an average person may contract gastroenteritis once or [3twice a year, but Mr. Burnett had been treated for this problem about ten times a year. For example, two days before he ate at the Log Cabin restaurant, Mr. Burnett saw Dr. Ghanta for gastroenteritis that had produced diarrhea throughout the previous week. Mr. Burnett had also been hospitalized for gastroenteritis in July of 1997. Dr. Ghanta believed that Mr. Burnett was amenable to these infections and that he possibly was not following a proper diet for his medical conditions.

Dr. Ghanta testified that the infection the Burnetts sustained in December of 1997 was an acute condition that was not related to Mrs. Burnett’s chronic abdominal problems and that was more severe than some of Mr. Burnett’s other bouts with gastroenteritis. Concerning the cause of this infection, Dr. Ghanta testified that he had to look at the circumstances and that if the Burnetts’ history were correct, then he would relate the infection to the food consumed at the restaurant. Because the Burnetts contracted the same infection at the same time, Dr. Ghanta believed that it came from the same source. However, because no cultures were taken, he could not state whether the infection was bacterial or viral or whether it originated in food, water, or from elsewhere in the community.

After the presentation of evidence, on March 2, 2000, the trial court agreed to leave the record open so that counsel could take the depositions of Dr. Lavergne, who saw the Burnetts in the emergency room on December 19,1997, and Ms. Deville, the owner of the Log Cabin restaurant. After taking the matter under advisement, however, the trial court issued written reasons on March 31, 2000, before any additional evidence had been submitted. In those reasons, the trial court stated:

When these two presented themselves December 23 to Dr. Ghanta, had they not given him a history of having eaten at Betty’s it would have been just another episode of abdominal pain, diarrhea, et cetera.
14Absent the history given to Dr. Ghanta both plaintiffs’ symptoms could have been caused by failure on their part to follow proper diet considering their health conditions. Considering their chronic conditions of abdominal distress associated with diarrhea, et cet-era, to go into a restaurant where most of the food served is fried would seem to the Court to be asking for trouble. Their problem could have been caused by water or food contamination elsewhere. We don’t know what the etiology of this problem is, whether viral or bacterial, and we don’t know what the [789] incubation period would have been for the various infections from which they could have suffered.

Opinion

The Plaintiffs first argue that the trial court erred in rendering judgment before it received the deposition of Dr. Lavergne, in violation of its own order. La.R.S. 13:4207 provides in part: “The district judges and the judges of the city courts, shall render judgments in all cases taken under advisement by them, within thirty days from the time the cases are submitted for their decision.” La.Sup. Ct.R. G, § 2, Rule 13:4207.1 (emphasis added), specifies, in part, when a case is considered as “submitted”:

(a) When Submitted. A case or other matter shall be considered as fully submitted for decision to the trial judge, and should be decided, immediately upon the conclusion of trial or hearing, and judgment signed expeditiously thereafter.
In an exceptional ease when the record has been left open upon the conclusion of trial or hearing for the filing of testimony by deposition and/or documents, such depositions and/or documents shall be filed within fifteen days and the case or matter shall be considered as fully submitted, and should be decided, immediately after such filing or the lapse of fifteen days, whichever occurs sooner.

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Burnett v. Essex Insurance Co., 773 So. 2d 786, 0 La.App. 3 Cir. 0809, 2000 La. App. LEXIS 2745, 2000 WL 1693141 (La. Ct. App. 2000).

773 So. 2d 786 (Burnett v. Essex Insurance Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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