Margaret Turner v. Cajun Operating Company (Of Delaware) D/B/A Church's Chicken

• Court: Louisiana Court of Appeal
• Decided: May 25, 2022
• Docket: 54,471-CA
• Status: Published

Opinion

Judgment rendered May 25, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 54,471-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

MARGARET TURNER, ET AL Appellees

versus

CAJUN OPERATING COMPANY (OF DELAWARE) D/B/A CHURCH’S CHICKEN, ET AL Appellants

Appealed from the Monroe City Court for the Parish of Ouachita, Louisiana Trial Court No. 2018CV02246

Honorable Tammy Lee, Judge

WANEK KIRSCH DAVIES LLC Counsel for Appellants, By: Peter J. Wanek Cajun Operating Lindsey G. Faulkner Company (Of Delaware) Kathryn Theriot Trew D/B/A Church’s Chicken

ANTHONY J. BRUSCATO Counsel for Appellees, Margaret Turner, Dewayne McKinley, Sheriff Turner, Sherron Turner, Shedanja Pratt, and Jacob Pratt

Before COX, STEPHENS, and MARCOTTE, JJ. COX, J.

This civil appeal arises from Monroe City Court, Ouachita Parish,

Louisiana. Cajun Operating Company (of Delaware), d/b/a Church’s

Chicken (“Appellant”), appeals the trial court’s judgment in favor of

plaintiffs Margaret Turner, DeWayne McKinley, Sheriff Turner, Sherron

Turner, and Shedanja Pratt, on behalf of her minor son, Jacob Pratt

(collectively, the “Appellees”), who alleged that they contracted food

poisoning from consuming undercooked chicken from the Appellant’s

restaurant. Because we find that the Appellees failed to present sufficient

evidence establishing that their symptoms were caused by eating food from

the Appellant’s restaurant, we reverse the trial court’s judgment.

FACTS

On June 28, 2018, Appellees filed suit against the Appellant alleging

that after they ate a portion of the meal Margaret Turner purchased from the

Appellant’s restaurant on 1690 DeSiard Street, Monroe, Louisiana, they

each suffered from symptoms associated with food poisoning, namely,

abdominal pain, nausea, vomiting, and diarrhea. In brief, Appellees argued

that it was more probable than not that they suffered food poisoning from the

Appellant’s food. Trial commenced on October 15, 2020, in which the

following testimony was heard:

First, Margaret Turner testified that on June 28, 2017, she invited her

boyfriend, DeWayne McKinley, her brother and sister-in-law, Sheriff and

Sherron Turner, and her minor nephew, Jacob Pratt, to her home. She stated

that around eight or nine, when the restaurant was about to close, she

purchased two boxes of chicken through the drive through, with eight pieces

of chicken in each box. Margaret testified that after her initial inspection of the chicken, it seemed fine. Particularly, Margaret stated that after her first

bite, the food seemed fine and cooked properly; however, upon her second

bite, Margaret testified that she noticed that the food was undercooked, raw,

and bloody and immediately spat out the food. She then stated that the rest

of the Appellees also noticed that the food was undercooked and stopped

eating. Because the restaurant was closed, Appellees decided to put the

remaining food back into the boxes to return to the restaurant the next

morning.

Margaret testified that the Appellees slept at her home that evening

and that a few hours after they ate, they each began to feel ill. Specifically,

Margaret testified that she and the other Appellees were nauseated, and

suffered from abdominal pain, diarrhea, and vomiting. Margaret stated that

she attempted to return the food to the Appellant’s restaurant the following

morning, but was informed that the restaurant could not take the food back.

That same day, she and the other Appellees presented to the emergency

room at University Conway in Monroe, where they were diagnosed with

food poisoning. Although she ate cereal the morning she consumed the

chicken, Margaret stated that because the meal from the Appellant’s

restaurant was the only food that she and the other Appellees had in

common, she assumed that the chicken was the cause of their symptoms.

Next, DeWayne McKinley confirmed that the only meal each of the

Appellees had together was the chicken at Margaret’s home. He testified

that after he took an initial bite of the food, he noticed that it was “bloody

and pink like.” He stated that he tried two different pieces of chicken, and

the third piece was pink and undercooked. He stated that the other

Appellees also noticed that their food was undercooked, and they all stopped 2 eating the food the moment they noticed that it was raw. He stated that a

few hours after eating the food, he began to feel sick and he went to the

emergency room where he was given a pill and told to drink plenty of

liquids and that the symptoms would have to “wear off.” McKinley testified

that it was possible that he ate chicken or poultry during that week, but could

not be certain of the exact meals he consumed.

Diane Liddell (“Liddell”), a market leader for the Appellant’s

restaurant, testified. Liddell stated that she supervises nine of the

Appellant’s chain restaurants throughout Louisiana and Mississippi. Liddle

testified that in this position, she visits each restaurant approximately once a

month and that her last visit to the restaurant on DeSiard Street would have

been during the beginning of June. Although she was not present at the

restaurant during the incident, Liddell testified that she spoke with the

restaurant’s manager, Michael Dorsey, who informed her about the

complaint.

Liddell stated that after the written report was transmitted, she

referred the complaint to the Appellant’s insurance adjuster for

investigation; however, she did not know what the investigation revealed

because the restaurant does not have a copy of the incident report and the

only copy of the report was transmitted to the insurance adjuster. She

further stated that it was also the restaurant’s policy not to accept food

customers attempt to return. If there are accusations of food poisoning, the

restaurant does not generally test the food to determine if it is contaminated.

3 Liddell then testified that the restaurant’s usual practice in preparing

and cooking food was to have at least two cooks on duty,1 who must be at

least 18 years old. She stated that because improperly cooked chicken can

transmit a type of bacteria that can cause food poisoning, the restaurant

trains its employees to follow a strict regime in which to properly and safely

cook the chicken to prevent sickness. Specifically, all chicken must be

cooked in oil at a temperature of 340 degrees, cooking white meat for 12.5

minutes and dark meat for 15 minutes. Employees are then required to

check the internal temperature of the food, ensuring that the internal

temperature for each piece is 185 degrees; if the internal temperature has not

been reached, then employees are to resubmerge the food for an additional 5

to 10 minutes. Liddell conceded that if not properly done, there is a

possibility that a customer could receive undercooked chicken.

Liddell then testified that the restaurant typically cooks approximately

32 pieces of chicken at a time so that each batch would be cooked the same

way; however, an error that affects one batch will not necessarily impact

another batch. Liddell testified that on June 28, 2017, the restaurant sold

approximately 4,800 pieces of chicken and that the only complaint she

received about undercooked chicken came from the Appellees.

Next, Sheriff Turner testified, and confirmed that he, like the other

Appellees, consumed the chicken at Margaret’s home. Sheriff testified that

while he was eating, he noticed that the food “tasted funny,” and when he

looked at the food, noticed that it was raw and bloody. He testified that

because his stomach was upset and he felt nauseated a few hours after he ate

1 Liddell testified that she did not know who the cooks were on the evening Margaret purchased the chicken or their level of training. 4 the chicken, he went to the emergency room where he was given a pill and

was told to drink plenty of liquids. Sheriff also testified that he is disabled

because he has a bad heart and is an active Hepatitis C patient. He

acknowledged that symptoms of Hepatitis C often include “abdominal pain,

nausea, diarrhea, fever, and accumulation of fluid in the abdominal cavity.”

He also stated that he did not eat anything prior to the chicken because his

stomach was “messed up the day before,” but that during the week, he may

have eaten fish or poultry.

Likewise, Sherron Turner, Sherriff’s wife, testified that when she ate

the chicken, she noticed that it was bloody and raw. She stated that after

eating the food, she felt nauseated and experienced vomiting and diarrhea.

Sherron stated that like the other Appellees, she went to the emergency room

where she was diagnosed with food poisoning, was given a pill, and told to

drink plenty of liquids. On cross-examination, Sherron testified that the only

meal she ate on June 28, 2017, was the chicken Margaret purchased from the

Appellant’s restaurant. Sherron also confirmed that because she is diabetic,

she has gone to the emergency room prior to this incident complaining of

abdominal pain, nausea, and vomiting. She acknowledged that she often has

trouble maintaining her glucose levels and, as a result, has been admitted to

the hospital on several occasions to treat these symptoms as related to her

diabetes.

At the close of testimony, Appellant moved for involuntary dismissal,

arguing that the Appellees failed to meet their burden of proving medical

causation to establish a causal connection between the ingestion of the

chicken and their subsequent symptoms. The trial court denied the motion

and requested that the parties submit post trial briefs concerning the law as 5 applied in food poisoning cases. On April 4, 2021, the trial court rendered

judgment in favor of the Appellees, finding a causal connection between the

consumption of the food and the Appellees’ subsequent illnesses. The trial

court awarded $2,500 for each of the four adult Appellees and awarded

$2,000 to the minor Appellee, Jacob Pratt.

This appeal followed.

DISCUSSION

In its sole assignment of error, Appellant contends that the trial court

erred in finding that a causal connection existed between the Appellees’

consumption of the chicken and their subsequent gastrointestinal symptoms

because the Appellees failed to submit sufficient, credible evidence to satisfy

their burden of proof. We agree.

Courts have held that to establish liability for the consumption of

deleterious food, the plaintiff must prove that the product was in a

deleterious condition when purchased. Hairston v. Burger King Corp.,

33,587 (La. App. 2 Cir. 6/21/00), 764 So. 2d 176. The plaintiff must further

prove the existence of a causal relationship between the illness or injury and

the consumption of the food. Id.; Landry v. Joey’s, Inc., 18-441 (La. App. 3

Cir. 12/12/18), 261 So. 3d 112, writ denied, 19-0072 (La. 3/6/19), 266 So.

3d 903. A trial court’s factual findings are accorded great weight and may

not be disturbed by a reviewing court in the absence of manifest error. Id.

In fulfilling this burden, “it is not necessary for the consumer to negate every

conceivable cause but he must show that it is more likely than not that the

food’s condition caused the injury of which he complains.” Landry, supra;

Griffin v. Schwegmann Bros. Giant Supermarkets, Inc., 542 So. 2d 710 (La.

App. 4 Cir. 1989). 6 Our courts have generally found that, in part, plaintiffs must have an

official diagnosis of food poisoning in order to recover damages. Here,

Appellees submitted a copy of their medical records from University

Conway, which provided that they were diagnosed with food poisoning.

Specifically, the medical reports reflected that the Appellees’ visit diagnosis

was food poisoning, with a final diagnosis of “toxic effect of other specified

noxious substances eaten as food, accidental.” Although the medical

evidence submitted provides that the Appellees were diagnosed with food

poisoning, we highlight, however, that no tests were performed during the

Appellees’ emergency room visit to confirm this diagnosis or confirm the

presence of any bacterial infection, virus, parasite, or any other pathogen

which could be linked to food poisoning.

Based solely upon the medical documentation provided in the record,

it appears that the ER physician diagnosed the Appellees with food

poisoning exclusively upon the information and symptoms Appellees

complained of, without any subsequent testing. Assuming, arguendo, that

the ER physician’s conclusory diagnosis was sufficient to satisfy part of the

Appellees’ burden of proof, we find that there is still insufficient evidence

establishing that the cause of the Appellees’ illness was the chicken they

consumed.

First, regarding the condition of the allegedly tainted chicken, we note

that, absent the Appellees’ testimony and their medical records indicating

that they believed the chicken was the cause of their illness, there is no other

evidence attesting to the deleterious or unwholesome condition of the

chicken. Although the Appellees testified that they took pictures of the

food, the pictures were never produced during trial and the record is absent 7 of any such photographs. Moreover, Margaret Turner testified that after she

attempted to return the chicken to the Appellant’s restaurant, an incident

report was filed; however, the result of that investigation, as stated by

Liddell, has not been produced, nor was a copy of the claim submitted into

evidence. Further, no employee from the Appellant’s restaurant, who either

worked on the night Margaret Turner purchased the chicken or the day she

returned the chicken, was called to testify as to the condition of the chicken.

Next, with respect to the Appellees’ assertion that they established a

causal link between their consumption of the chicken and their subsequent

illness, we find that absent testimony, evidence, or opinion from a medical

expert or healthcare provider regarding the condition of the chicken and the

probability that its ingestion caused the illness, the Appellees failed to meet

their evidentiary burden. Several courts, including the Third and Fifth

Circuits in Landry, supra, and Landreneau v. Copeland’s Cheese Cake

Bistro LLC, 08-647 (La. App. 5 Cir. 1/13/09), 7 So. 3d 703, respectively,

have upheld the general rule that:

. . . courts have never compelled a plaintiff to produce an actual analysis of the food consumed in order to establish its unwholesome condition. Rather, the courts have been willing to infer the deleterious nature of the food consumed from the circumstances surrounding the illness. In all of the cases in which there has been successful recovery, the plaintiff has shown that the food was consumed by him, and that no other food which might reasonably be assumed to have caused the illness had been consumed within a number of hours before or after the consumption of the suspect product. The plaintiff has also had medical opinion to the effect that it was probable that his illness was caused by the consumption of the particular product involved. In addition, the successful plaintiffs in the above cases have been able to show some other independent circumstance, which tends to prove his case. . . (Emphasis added).

8 Accordingly, a plaintiff cannot establish that a food product caused an

illness simply by presenting circumstantial evidence.

Rather, plaintiffs must have medical evidence to prove that they

suffered food poisoning, Landreneau, supra, and medical evidence to prove

that the food poisoning was caused by the consumption or ingestion of the

allegedly tainted food. Fuggins v. Burger King Corp., 33,473 (La. App. 2

Cir. 5/10/00), 760 So. 2d 605. There must be evidence that a particular food,

or at least some item among a reasonably small group of foods, was

unwholesome. A mere showing that a person became sick subsequent to

eating food is insufficient.2 Appellees argue that the chicken was the sole

cause of their illness because it was the only meal they ate in common and

the chicken was allegedly undercooked.

Courts have found that evidence attesting to the incubation period of

bacteria and other food-borne illnesses may be used as an evidentiary means

to determine whether the allegedly tainted or unwholesome food product

was the cause of a plaintiff’s illness.3 Likewise, medical or expert testimony

regarding the presence of such pathogens in the plaintiff or the food

consumed, indicating the probability that the food consumed likely caused

the illness, may also establish the plaintiff’s case. Griffin, supra; Hairston,

supra; Fuggins, supra. In this case, however, there is no medical or expert

2 David Polin, Proof of Liability for Food Poisoning, 47 AM. JUR. PROOF OF FACTS 3d 47 §18 (1998). 3 In Hairston, supra, the plaintiff’s physician testified that “the incubation for different types of bacteria which can cause food poisoning is anywhere from an hour to a week.” Likewise, in Greenup v. Roosevelt, 18-0892 (La. App. 4 Cir. 3/20/19), 267 So. 3d 138, the Fourth Circuit found that the plaintiff failed to establish that the specific food from the defendant restaurant caused her illness. The court stated that the plaintiff failed to prove the source of her illness, based in part on the physician’s testimony that it usually takes at least six hours for food poisoning symptoms to manifest and that a few days before the plaintiff consumed the allegedly tainted food, she ate two different kinds of poultry. 9 testimony to support the conclusion that the Appellees’ ingestion of the

chicken caused their injuries.

The only evidence submitted in this case is the testimony of the

Appellees and their medical records that indicate a diagnosis of food

poisoning without subsequent testing of either the Appellees or the chicken.

Although the Appellees testified that they believed the chicken caused their

illness because they ate the food together and became sick around the same

time, the testimony in this case also revealed that there were several other

plausible factors that could have caused the Appellees’ illness. For example,

on cross-examination, Margaret Turner testified that she regularly has milk

and cereal for breakfast and that on the day in question, she had this same

meal prior to eating the chicken.

Further, DeWayne McKinley testified that he ate poultry or fish either

the same day, a few days before, or within the same week that he consumed

the chicken. Moreover, his medical records indicate that he did not begin to

suffer from any symptoms until an hour before he presented to the

emergency room, the day after he ate the chicken. Sherriff Turner also

confirmed that as a Hepatitis C patient, he often suffers from abdominal

pain, nausea, diarrhea, and other related symptoms. He also testified that he

did not eat anything the day before Margaret purchased the chicken because

his “stomach was messed up.” Finally, Sherron Turner testified that the only

thing she ate the week before consuming the chicken, was a turkey

sandwich. She also confirmed on cross-examination that she is a diabetic

and that when not properly treated, can cause symptoms similar to that of

food poisoning.

10 Given that there are several other possibilities that could have

plausibly caused the Appellees’ food poisoning, and a lack of evidence

confirming a probability that the chicken, rather than any other product

consumed, caused the Appellees’ illness, we cannot say that the Appellees

met their burden of proof. Beyond a conclusory medical diagnosis of food

poisoning, there is no evidence to support the conclusion that the Appellees’

ingestion of the chicken caused their injuries. The cause of the Appellees’

food poisoning could have reasonably been anything they ate from the day

of or the week of consuming the chicken. Additionally, Liddell confirmed

that there was no evidence of any other reported cases of food poisoning

from customers within that time period.

It is not enough to conclude that illness, after the consumption of a

food product, alone, is sufficient to establish a causal link for recovery.

Finding that the Appellees failed to prove a causal relationship between their

food poisoning and eating the chicken, we reverse the trial court’s judgment.

CONCLUSION

For the aforementioned reasons, we reverse the trial court’s judgment.

Costs of this appeal are cast on the Appellees.

REVERSED.