San Francisco v. Wendy's International, Inc.

656 S.E.2d 485, 221 W. Va. 734
CourtWest Virginia Supreme Court
DecidedDecember 19, 2007
Docket33284
StatusPublished
Cited by25 cases

This text of 656 S.E.2d 485 (San Francisco v. Wendy's International, Inc.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
San Francisco v. Wendy's International, Inc., 656 S.E.2d 485, 221 W. Va. 734 (W. Va. 2007).

Opinions

STARCHER, J.

In this appeal from the Circuit Court of Kanawha County, we are asked to examine an order precluding the plaintiffs below from presenting the testimony of two expert witnesses in a case of food poisoning. The circuit court then went on to grant summary judgment to the defendant, on the basis that the plaintiffs did not have sufficient evidence to support their claim. On appeal, the parties debate whether the two experts — a treating physician and a director of a university food safety program — were qualified to testify and whether their opinions were sufficiently reliable to be admissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993).

After careful review of the record, and of the excellent briefs and arguments by the parties, we find that the circuit court erred in excluding the two experts. As set forth below, we reverse the circuit court’s summary [739]*739judgment order, and remand the case for further proceedings.

I.

Facts & Background

Around noon on May 1, 2002, appellants Clinton and Jessie San Francisco visited a restaurant in Charleston, West Virginia, owned by the appellee, Wendy’s International, Inc. (“Wendy’s”). At the restaurant’s drive-through window, Mr. San Francisco purchased, among other items, a “single”sized hamburger with mustard, onions, pickles and tomato. The appellants then drove off and began eating their meals in the car.

Mr. San Francisco had eaten approximately one-quarter of his hamburger when he noticed that the burger was “red inside and wasn’t done, it was raw,” “tasted funny” and that the texture was “soft.” After this observation, Mr. San Francisco discarded the remainder of the hamburger.

Shortly thereafter, Mr. San Francisco became ill. His stomach began to bother him and he began to sweat profusely. Within one-and-a-half to two hours after eating the hamburger, Mr. San Francisco began experiencing vomiting and diarrhea.

Two days later, after continued pain and discomfort, on May S, 2002, Mr. San Francisco was admitted to Logan General Hospital.1 He remained in the hospital until May 13, 2002.

While at Logan General, Mr. San Francisco was treated by Dr. Peter Gregor, a physician who is board certified in internal medicine and cardiology and is familiar, based on his clinical experience, with a food poisoning diagnosis. Dr. Gregor conducted a work up and analysis of Mr. San Francisco and performed a “differential diagnosis” to determine the cause of his illness. Using this method of diagnosis, during his examination, Dr. Gregor considered and then ruled out other potential causes of Mr. San Francisco’s illness, such as pre-existing gastrointestinal problems, alcohol use, peptic ulcer disease or diverticulitis. After considering Mr. San Francisco’s history and condition — particularly noting that he vomited 1.8 liters of material while in the emergency room, an amount which Dr. Gregor considered substantial — Dr. Gregor concluded to a reasonable degree of medical certainty that Mr. San Francisco was suffering from a foodborne illness caused by the Wendy’s hamburger. As Dr. Gregor later stated in his deposition:

If you ask me, do I think a hamburger at a restaurant with diarrhea, vomiting and fluid loss shortly thereafter was the cause of the hospitalization, I would say yes_It was the hamburger.

On April 19, 2004, Mr. and Mrs. San Francisco filed the instant lawsuit against appellee Wendy’s, alleging that the appellee had caused injury to Mr. San Francisco by selling an “unsafe, unwholesome, or unfit food product.”

During discovery, the appellants identified two experts. The appellants identified Dr. Gregor as an expert who would testify that Mr. San Francisco suffered from a foodborne illness caused by the Wendy’s hamburger. The appellants also identified Ewen Todd, Ph.D., an expert in food safety and toxicology from Michigan State University. Dr. Todd testified in a deposition that although the symptoms of Mr. San Francisco’s illness were most consistent with verotoxin produced by E. coli 0157:H7 bacteria, he became ill too quickly for a typical E. coli infection to have occurred; E. coli bacteria apparently require incubation of three to seven days from ingestion to produce enough verotoxin to induce symptoms. Instead, Dr. Todd was of the opinion that E. coli bacteria was present on the ground beef in the Wendy’s hamburger; that the bacteria had produced vero-toxin; and that the ingestion of the verotoxin in the Wendy’s hamburger had produced the rapid onset of Mr. San Francisco’s symptoms. Dr. Todd’s opinion was based upon a published scientific study which found that four days after E. coli bacteria was added to ground beef, verotoxins formed in the beef.2

[740]*740After the completion of discovery, appellee Wendy’s filed a motion for summary judgment — and subsequently, motions in limine — to exclude the testimony of Dr. Gre-gor and Dr. Todd. The appellee argued that Dr. Gregor was unqualified to render medical testimony on injury and causation, and that neither Dr. Gregor’s opinion nor Dr. Todd’s opinion met the standards of admissibility under Rule 702 of the West Virginia Rules of Evidence, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993).

In an order dated March 14, 2006, the circuit court excluded the testimony of Dr. Gregor and Dr. Todd, and granted summary judgment to the appellee. The circuit court concluded that under Rule 702, Dr. Gregor was not “qualified as an expert by knowledge, skill, experience, training or education.” Further, the circuit court found that Dr. Todd’s opinion was “unreliable as a matter of law and inadmissible” under Daubert and Wilt. In the absence of the testimony of the two experts, the circuit court found insufficient evidence that Mr. San Francisco suffered from a foodborne illness caused by the Wendy’s hamburger, and therefore granted summary judgment to the appellee.

The appellants now appeal the circuit court’s March 14, 2006 order.

II.

Stand,ard, of Review

Our review of a circuit court’s decision to grant a party a summary judgment under Rule 56 of the Rules of Civil Procedure is reviewed de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Similarly, when we review a circuit court’s decision that turns upon an interpretation of the West Virginia Rules of Evidence, a question of law is presented that is subject to a de novo review. Syllabus Point 1, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995).

When considering the propriety of a circuit court’s decision to admit or exclude the testimony of an expert witness, we generally examine the decision for an abuse of discretion. As we stated in Syllabus Point 6 of Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991):

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Cite This Page — Counsel Stack

Bluebook (online)
656 S.E.2d 485, 221 W. Va. 734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/san-francisco-v-wendys-international-inc-wva-2007.