Jury Rules on Causation in Food Poisoning Case

November 3, 2008

Food poisoning defendants should not be granted a special, protected status with a “heightened” standard of causation, the California Court of Appeal has ruled.

According to court documents in Alexis Sarti v. Salt Creek Ltd., In April 2005, Alexis Sarti and a friend ate at the Salt Creek Grille, splitting an appetizer consisting of raw ahi tuna, avocado, cucumbers and soy sauce. Sarti suffered food poisoning and wound up in the emergency room, where she was put intensive care and diagnosed with guillain-barre syndrome, a disease that damages peripheral nerves. The bacteria that caused Sarti’s illness is not found in raw tuna, however, unless the tuna has been cross-contaminated by raw chicken, where the bacteria is common, court documents state.

Sarti’s illness was reported to the Orange County, Calif., Health Department, and four practices at the Salt Creek Grille were identified that could lead to the cross-contamination: wipe down rags were not being sanitized between wiping surfaces; there was an insufficient amount of dishwasher sanitzer; chicken tongs were sometimes used for other food; and raw vegetables were stored under the raw meat, so that a drop of raw meat juice might get on the vegetables.

Sarti, who was 21 when she became sick, never recovered form the illness, and now retains only about 40 percent of what would have been her normal endurance. She sued the partnership that owns the Salt Creek Grille for breach of warranty.

Court documents state that there was substantial evidence on which the jury could have found the restaurant not liable, such as Sarti’s friend with whom she split the appetizer did not get sick, and that Sarti worked as a supermarket checker the day she became ill, and could have picked up the bacteria while scanning grocery items.

Yet while the jury did not find the restaurant liable, it returned a verdict of $725,000 in economic damages, and 2.5 million in non-economic damages. “The trial judge perceived the jury’s verdict was based on the inference that the practice of using the same wipe down rage or touching cooked food with chicken tongs that had previously touched raw chicken had led to cross contamination from raw chicken to raw tuna,” court documents state. And the trial judge believed that Sarti had presented “the jury with sufficient evidence to avoid a judgment notwithstanding the verdict (jnov).”

However, the trial judge had earlier noted that according to Minder v. Cielito Lindo Restaurant, that indicates “for the black-letter rule of law that inferences are off limits to prove a food poisoning case.” Thus, it was only under the compulsion of the Minder case that the trial judge granted the restaurant’s motion for jnov, according to court documents.

“We can understand why the judge was so cautious, but we do not think that Minder, strictly construed, should be read to preclude the use of reasonable inferences to show causation in food poisoning cases. To the degree that Minder may, arguendo, be susceptible for the proposition that inferences are unavailable in food poisoning cases, or that food poisoning defendants are somehow accorded a special, protected status with an abnormally “heightened” standard of causation, we respectfully decline to follow it,” the court of appeal indicated. “Despite intimations in the Minder opinion to the contrary, food poisoning cases are governed by the same basic rules of causation that govern other tort cases. Reasonable inferences drawn from substantial evidence are indeed available to show causation. We will therefore reverse the jnov and order reinstatement of the original verdict.”

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