United States: "Are You Sure That It Was Food Poisoning?" The Current Status Of Circumstantial Evidence In Foodborne Illness Cases

Litigation arising from allegations of food poisoning is common and often costly.  Each year almost 1,000 Georgians will report an incident of food poisoning.  www.cdc.gov. (2018).  National Outbreak Reporting System (NORS) Dashboard | CDC.  [online]  Available at: https://wwwn.cdc.gov/norsdashboard/ [Accessed 5 Oct. 2018].  In a foodborne illness lawsuit, the average award to a successful Plaintiff is $276,148, but verdicts have been as high as $6.2M in recent years.  See Omchand Mahdu, Penalties for Foodborne Illness: Jury Decisions and Awards in Foodborne Illness Lawsuits,  2015 AAEA & WAEA Joint Annual Meeting, July 26-28, San Francisco, California 205810, Agricultural and Applied Economics Association.  

Many Georgia food service businesses, however, have previously avoided trial on summary judgment grounds.  Without direct evidence – often testimony that the food appeared or smelled abnormal or laboratory results confirming food poisoning – a Plaintiff typically lost at the summary judgment stage.  A recent Georgia Supreme Court decision has made it easier for Plaintiffs to survive summary judgment using only circumstantial evidence.  Patterson v. Kevon, LLC, No. S17G1957, 2018 WL 3965745 (Ga. August 20, 2018).

Historically, the Georgia courts viewed food poisoning cases as a "unique species of negligence cases."  See Patterson v. Kevon, LLC, 342 Ga. App. 256 (2017).  A plaintiff could defeat summary judgment only by introducing evidence showing the defendant's conduct was "the only reasonable hypothesis" for the illness, "to the exclusion of all other reasonable theories." See  Stevenson v. Winn–Dixie Atlanta, Inc., 211 Ga.App. 572 (1993).  As a result, without direct evidence, a Plaintiff typically lost. 

However, in Patterson v. Kevon, LLC, the Georgia Supreme Court clarified that food poisoning cases are subject to the same summary judgment standard as all other negligence actions.  In a unanimous decision, the Supreme Court found that the Court of Appeals had fostered a "mistaken impression" that food poisoning cases impose a heavier summary judgment burden upon plaintiffs. 

The facts of Patterson v. Kevon begin with a wedding rehearsal dinner.  The plaintiffs, Josh and Taylor Patterson, were among the guests served barbecue by a Georgia caterer.  None of the guests observed that the food smelled or looked abnormal.  Roughly 48 hours later, Josh Patterson became severely ill.  He went to the emergency room and tested positive for salmonella.  Taylor Patterson also began experiencing symptoms consistent with food poisoning.  The Pattersons soon learned that other guests reported similar symptoms. 

The Pattersons filed suit against the caterer, Kevon, LLC, alleging that the caterer had negligently prepared the food.  The caterer moved for summary judgment arguing that the Pattersons failed to establish that the food he prepared and served was the proximate cause of the Pattersons' illnesses.  While Joshua Patterson was diagnosed with salmonella, no direct evidence established that the caterer's food was underprepared or otherwise unfit for consumption.  No one reported that the food looked or smelled unpleasant and no one tested the food to confirm it caused the food poisoning.  The caterer argued that there were several other explanations for the food poisoning.  For example, it was possible that the Pattersons' food poisoning was caused by fast food they consumed afterward.  The trial court granted the caterer's summary judgment motion finding that the Pattersons had failed to show that food poisoning caused by the caterer was "the only reasonable hypothesis" explaining the Pattersons' illnesses.  The Court of Appeals upheld summary judgment for the caterer.     

The Georgia Supreme Court sided with the Pattersons and found that the trial court improperly granted summary judgment to the caterer and relied on an incorrect summary judgment standard.  Applying the general summary judgment rule, the Supreme Court concluded that Pattersons' circumstantial evidence "went well beyond" general allegations and "the circumstantial evidence presented by [the caterer] failed to rebut it."  As a result, an issue of fact as to proximate cause existed and the case should have proceeded to trial.  

What remains to be seen is how Patterson will be used in cases outside of the food poisoning context.  To date, Patterson  has been cited in at least one other case.  Callaway v. Quinn,  A18A0866, 2018 WL 4473994 (Ga. Ct. App. September 19, 2018) Like Patterson, the Court's reasoning can be boiled down to the proposition that the "sufficiency of the circumstantial evidence, and its consistency or inconsistency with [an] alternative hypothesis . . . is a question for the jury." 

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