Louisiana Record

Monday, August 19, 2019

Winn-Dixie wins summary judgement in food poisoning suit

By Angela Underwood | Mar 16, 2018

NEW ORLEANS — A Louisiana justice has dismissed a food poisoning complaint against a big brand grocer.

In a Feb. 22 order, Judge Sarah Vance has granted summary judgement to Defendant Winn-Dixie Montgomery LLC in a food poisoning complaint filed against the store by Inga M. Feria.

The alleged food poisoning took place in 2016 after Feria and her sister Keyoka Smith and mother Evangeline Smith purchased pre-cooked crab at a Winn-Dixie in Slidell. After eating a few bites of the food, the women noticed the crab smelled foul and quit eating it. A few days later the mother was diagnosed with the waterborne bacteria aeromonas hydrophilia by her primary care physician David Powers, who also treated her frequently for end-stage renal failure. 

In 2017, Smith filed a complaint against Winn-Dixie, alleging she was poisoned by polluted water the crab meat was cooked in. She passed away from other causes a month later and her children continued the litigation.

Judge Vance began her analysis citing Celotex Corp. v. Catrett 1986 and Little v. Liquid Air Corp. 1994 to detail that the legal standard of summary judgement is defensible when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” according to the order.

Moving onto discussion, Vance cited Simmons v. Brookshire  Co. 2016 and Landreneu v. Copeland’s Cheese Cake Bistro 2009 to refer to Louisiana law and how the complainant is obligated to “prove the product was in a deleterious condition when purchased and caused his illness,” according to the order.

With no evidence that Winn-Dixie knew the crabs were possibly poisoned by contaminated water, Judge Vance included the testimony of Merchandise Manager Catherine DeLouise.

“DeLouise explained that, when crabs arrive at the store, the seafood manager immediately checks them to ensure they look fresh, and then puts them in the cooler or displays them on ice,” Judge Vance wrote in the order. “DeLouise further testified that there is a thermometer in the seafood display case that is monitored three times a day to keep the temperature in the seafood display case at an appropriate level.”

While Feria argues Winn-Dixie did not package the product with safe handling directions, the grocer countered noting the case the crabs sat on ice in includes a warning of the possible dangers of consuming raw seafood.

After dismissing Winn-Dixie for the alleged negligence, Vance concluded that Feria’s claim against summary judgement based on the grocer not providing her with requested records under Federal Rule Civil Procedure 56(d) are invalid since “a requesting party is not entitled to relief if it has not diligently pursued discovery,” citing McKay v. Novartis Pharma Group 2014 as precedent.

Further citing Washington v. Allstate 1990, Judge Vance concluded Feria’s request for video footage of the crabs being prepared in the display case was “not likely to produce the facts needed by the plaintiff[s] to withstand a motion for summary judgment,” according to the order.

And if the footage could have proved negligence, it was otherwise not available due to being recorded over, but even then Winn-Dixie would have not been at fault.

“In emails provided by plaintiffs, defendant’s counsel represents that the security footage was automatically recorded over before defendant received notice of Evangeline Smith’s claims,” Judge Vance writes in the order, adding “plaintiffs offer no evidence that the video footage was destroyed in bad faith.”

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U.S. District Court for the Eastern District of Louisiana