SAMPLE BRIEF TO THE SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

PROCEDURAL HISTORY

In June 2004, Defendant XXXXXX filed its motion for summary judgment. (Pa1 at Volume I. All XXXXXX papers are undated so exact date of filing cannot be determined.)

On June 13, 2004, Defendant XXXXXX, Inc., cross-moved for summary judgment against plaintiff. (Pa92 at Volume I.)

On June 15, 2004, Defendant XXXXXX XXXXXX cross-moved for summary judgment against plaintiff. (Pa169 at Volume I.)

On (date unknown), plaintiffs filed a response to Defendant XXXXXX's motion for summary judgment. (Pa424 at Volume III along with Exhibits contained at Pa644 in Volume IV to Pa1950 at Volume X.)

On (date unknown), plaintiffs filed a response to Defendant XXXXXX XXXXXX's motion for summary judgment. (Pa514 at Volume IV along with Exhibits contained at Pa644 in Volume IV to Pa1950 at Volume X.)

On (date unknown), plaintiffs filed a response to Defendant XXXXXX's motion for summary judgment. (Pa582 at Volume IV along with Exhibits contained at Pa644 in Volume IV to Pa1950 at Volume X.)

On July 29, 2004, the court entered an Order of Summary Judgment in Defendant XXXXXX's favor. (Pa1966 in Volume X.)

On August 2, 2004, the court entered an Order of Summary Judgment in Defendant XXXXXX's favor. (Pa1968 in Volume X.)

On August 24, 2004, the court entered an Order of Summary Judgment in Defendant XXXXXX XXXXXX's favor. (Pa1970 in Volume X.)

On September 1, 2004, plaintiffs filed a Notice of Appeal, Case Information Statement and Court transcript request form. (Pa1957, Pa1962 and Pa1972 at Volume X.)

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QUESTIONS PRESENTED

1. What is the burden of proof to be applied in product liability cases involving food poisoning where the allegedly defective product is usually not available to be examined in that it has been consumed or discarded in the usual course?

2. What procedure should apply when a supermarket receives meat from two different sources, mixes it together on its own volition and distributes it to a customer who becomes ill from it? Is a plaintiff barred from recovering if he or she cannot prove from which of the two companies the contaminated meat product originated?

3. If a plaintiff's illness could have come from various different sources (meat, vegetables, water, etc.), is it appropriate to grant summary judgment for that reason if the plaintiff cannot definitively pin-point which one, or should the question have been presented to a jury for a fact determination based upon the surrounding circumstances and the high probabilities testified to by the expert witnesses?

4. Should an exception to the doctrine of res ipsa loquitor, which is inapplicable to product's liability cases under New Jersey law, be made for cases involving food poisoning given the unique nature of food-related cases where the product is consumed or destroyed, scores of different ingredients are mixed together and the like?

5. Repeating No. 4, above, differently, if a food poisoning plaintiff can prove that an illness is most likely from a certain food product that the plaintiff consumed, should the original distributors of that product, assuming that there are many, be left to fight amongst themselves as to which of them should be held liable rather than dismissing a plaintiff's case for inability to make this showing?

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6. In order to survive summary judgment in a food poisoning case, is a plaintiff required to definitively prove that a food product came from a certain distributor, or is it sufficient to prove by expert testimony and surrounding circumstances that it is more than likely that it has? What degree of proof does the plaintiff need to present at that stage of the case?

STATEMENT OF FACTS

This appeal concerns a motion for summary judgment filed by XXXXXX that resulted in additional cross-motions for summary judgment filed by XXXXXX and XXXXXX. This Statement of Facts is divided into sections in attempt to organize the facts in the best way possible, but, as shown by plaintiffs' ten-volume appendix, the record from the proceedings are long and complex. The Statement of Facts is organized as follows:

(a) Subsection A is a short synopsis of just the allegations in plaintiffs' Third Amended Complaint;

(b) Subsection B concerns XXXXXX's Statement of Undisputed Facts and the three responses filed thereto;

(c) Subsection C concerns XXXXXX's Statement of Facts;

(d) Subsection D concerns XXXXXX's Statement of Facts;

(e) Subsection E concerns Plaintiffs' Counterstatement of Facts. Plaintiff filed three separate responses, which to a very real degree are repetitive;

(f) Subsection F concerns the trial court's findings of fact and conclusions of law as to XXXXXX's motion; and,

(g) Subsection G concerns the trial court's findings of fact and conclusions of law as to XXXXXX and XXXXXX's motions.

A. Third Amended Complaint.

Plaintiff XXXXXX XXXXXX (hereinafter referred to as "XXXXXX") was four-years-old when the acts described herein transpired. His Third Amended Complaint alleges that on July 20, 2000, his mother, Plaintiff Laura XXXXXX, and his grandmother, Susan XXXXXX (a non-party), purchased two packages of ground beef at Defendant XXXXXX in Newburg, New York. (Pa201, Volume II, at Para. 3.) XXXXXX consumed those products on or around July 24, 2004, which caused him to become ill. (Pa201, Volume II, at Paras. 4 & 6.) (As explained in more detail later on, XXXXXX contracted E.coli 0157:H7, a form of contamination that originates from animal feces, under circumstances where Defendant XXXXXX XXXXXX had been cited twice in that general vicinity for such contamination and where XXXXXX XXXXXX was the only supplier of such meats at the time in question to the supermarket where the contaminated product was purchased.)

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The Third Amended Complaint alleges common law negligence and strict liability under New Jersey's Product Liability Act, N.J.S.A. 2A:58-2 et seq.

The Seventh Count alleges that there was failure to warn regarding the inherent dangers of ground beef. (Pa207-08 at Volume II)

The Eleventh Count alleges that Defendants XXXXXX, Jac Pac, XXXXXX XXXXXX and XXXXXX had distributed products in the past that they knew or should have known were contaminated, and notwithstanding the knowledge generated therefrom, they recklessly and intentionally continued to produce and distribute the products in such a fashion. (Pa211 at Volume II)

B. XXXXXX's Statement of Undisputed Facts & the Responses

Defendant XXXXXX (hereinafter referred to as "XXXXXX") denies having provided any ground beef to XXXXXX containing E.coli, and denies that any of its ground beef products had been recalled during the year 2000. (Pa4 at Pa5, Paragraph 4 thereof; Pa47 at Pa48, Paragraph 16 thereof.)

Plaintiffs retained Dr. Charles XXXXXX and Dr. Thomas XXXXXX to assist in determining the source of
XXXXXX's illness and from which of XXXXXX or XXXXXX, if either, the contaminated product came from. (Pa4 at Pa5, Paragraph 5 thereof). The two resulting expert reports are attached to XXXXXX's moving papers as Exhibits D and E. (Pa50 and Pa67, Volume I). XXXXXX took issue with both of these expert witnesses.

Plaintiff's expert witness, Charles XXXXXX, concluded in his expert report that XXXXXX did not provide any meat products to XXXXXX between July 8 and July 20, 2000, whereas July 20th is believed to be the date that plaintiff purchased the ground beef from XXXXXX. [See Pa4 at Pa8, Volume I, last paragraph thereof; XXXXXX's Exhibit D (Charles XXXXXX's expert report), Pa50 at Pa61, Volume I, fourth and fifth paragraphs thereof.]

XXXXXX's corporate policy was that chub was to be used within fourteen (14) days of the production date, as listed on the box by the manufacturer. (Dep. George XXXXXX at Pa1167, Volume VII (Plaintiff's Exhibit 26)).

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Q: Okay. The 14 day time frame that we talked about in terms of sale of meat, is that 14 days from the date of production?

A: From the date of the pack, correct.

Q: That's the date of production?

A: Exactly.

(Dep. George XXXXXX at Pa1167, Vol. VII (Plaintiff's Exhibit 26), Page 131:11-16).

Q: As I understand from some of the previous depositions, it's XXXXXX's policy that the meat must be sold within 14 days of the date that the packer puts on the box. Is that your understanding as well?

A: That's correct. From the manufacturing date, production date.

(Dep. Christopher XXXXXX at Pa1167, Vol. VII (Plaintiff's Exhibit 5), Page 28:17-23).

XXXXXX averred that Mr. XXXXXX concluded in his report that it was more likely than not that the ground beef originated from XXXXXX, rather than from XXXXXX. (Pa4 at Pa6, Paragraphs 6-7; Pa50 at Pa64, Paragraph 8 thereof.) It was also pointed-out that Dr. XXXXXX did not criticize XXXXXX in his report. (Pa4 at Pa6, Paragraph No. 8., Volume I; Pa67, Volume I.)

Plaintiffs admitted as true all of these general statements made by XXXXXX in its Statement of Undisputed Facts, but stated with regard to XXXXXX's statements about the expert reports that the reports speak for themselves. (Pa582, Volume IV) XXXXXX also admitted as true all of XXXXXX's Statement of Undisputed Facts except as to the accuracy of the statements quoted from the expert reports. (Pa96 at Pa97, Volume I.)

XXXXXX's response to XXXXXX's Statement of Undisputed Facts was that Mr. XXXXXX allegedly has not achieved a doctorate in any discipline and that his conclusion is based upon a speculative presumption that all of XXXXXX's meat was used up by the time that XXXXXX began distributing XXXXXX's product. (Pa174, Volume I, to Pa176, Volume II, No. 2 thereof.)

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C. XXXXXX's Statement of Facts.

XXXXXX's Statement of Material Facts is reproduced at Pa96 at Pa98, Volume I. Plaintiffs' response thereto is reproduced at Pa514 at Pa515, Volume IV.

XXXXXX posited that XXXXXX's grandmother purchased the ground beef at XXXXXX in Newburgh, New York, that XXXXXX consumed the product on July 24, 2000 and that records from the New Jersey Department of Health and Senior Services indicate that the product was purchased on July 10, 2000. [Pa96 at Pa98, Volume I] Plaintiffs admitted all of these facts as true, except to say that the evidence shows that the meat was purchased during the week of July 10, 2000, and not necessarily on that specific date. [Pa514 at Pa515, Volume IV]
Plaintiffs admitted as true the remainder of XXXXXX's Statement of Material Facts. [Pa514 at Pa515, Volume IV] Those facts were that

(a) XXXXXX's grandmother purchased two packages of ground beef from XXXXXX that contained a guarantee of the product's quality and freshness and provided cooking and handling directions;

(b) XXXXXX's grandmother did not recall the fat-to-lean ration of the ground beef;

(c) During the time in question only XXXXXX and XXXXXX were providing ground beef to XXXXXX;

(d) XXXXXX purchased 4,370 cases of ground beef from XXXXXX during the period of July 1 to July 21, 2000, purchased 16,619 cases of ground beef from XXXXXX during the same period and sold the ground beef from both of these companies at XXXXXX during the summer of 2000;

(e) Ground beef is usually delivered within two days of order, it moves out of warehouse almost always the day it comes in and it must be sold within 14 days of the manufacturing date;

(f) The ground beef that XXXXXX's grandmother purchased had a label on it.

[Pa96 at Pa98-99, Volume I]

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D. XXXXXX's Statement of Facts.

XXXXXX's Statement of Material Facts [Pa178 at Pa188-198] greatly mimics the Statement of Material Facts presented by XXXXXX and discussed in Subsection C, above.

The theme to XXXXXX's defense is that plaintiffs cannot conclusively prove that the meat came from XXXXXX because of XXXXXX's poor record keeping and the fact that XXXXXX mixed all of the meats together. [Pa178 at Pa189, Volume II, Para. Nos. 10-11 & 16.]

E. Plaintiffs' Responses.

Plaintiffs filed three separate responses to the three motions for summary judgment. The Counterstatement of Facts of those three responses were the same and provided as follows.
Plaintiffs' claims stem from an e.coli 0157:H7 out break in New Jersey during the summer of 2000. [Pa514 at Pa516, Volume I, Para. No. 1 thereof; Pa424 at 428, Volume III, Para. No. 1 thereof; Pa583, Volume IV, at Para. No. 1] XXXXXX at the time in question was a four-year-old boy from Montvale, New Jersey, who vacationed on Long Beach Island, New York, during the summer of 2000. [Pa514 at Pa516, Volume I, Para. No. 2 thereof; Pa424 at 428, Volume III, Para. No. 2 thereof; Pa583, Volume IV, at Para. No. 2]

Defendants XXXXXX and XXXXXX, both located in Pennsylvania, sell, inter alia, bulk ground chub (hereinafter referred to as "chub") - i.e. ground beef that needs to be further ground and processed before retail - to commercial vendors who will prepare the product upon its receipt for retail as indicated. [Pa514 at Pa517, Volume I, Para. Nos. 3-4 thereof; Pa424 at Pa429, Volume III, Para. Nos. 3-4 thereof; Pa584, Volume IV, at Para. Nos. 3-4]

XXXXXX in the summer of 2000 had approximately 100 stores throughout the East Coast including a central warehouse to where all of its purchased chub is delivered and further processed as indicated above. [Pa514 at Pa517-18, Volume I, Para. Nos. 5-6 thereof; Pa424 at 429-30, Volume III, Para. Nos. 5-6 thereof; Pa584-85, Volume IV, at Para. Nos. 5-6] During the summer of 2000, XXXXXX purchased chub from both XXXXXX and XXXXXX. [Pa514 at Pa519, Volume I, Para. No. 7 thereof; Pa424 at 430, Volume III, Para. No. 7 thereof; Pa586, Volume IV, at Para. No. 7]

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During the 2000 calendar year, XXXXXX received several "Non-Compliance Records" from the USDA FSIS. These food safety violations were for allowing slaughtered cattle to move through the production cycle with the presence of fecal and ingesta upon it, whereas fecal material is known to be the cause of e.coli 0157:H7. [Pa514 at Pa520, Volume I, Para. Nos. 9-10 thereof; Pa424 at 431-32, Volume III, Para. Nos. 9-10 thereof; Pa587, Volume IV, at Para. Nos. 9-10] XXXXXX was also recently cited for fecal contamination in 2000

Q. During the year of 2000 do you recall the production line ever being stopped?

A. Several times.

Q. What would be some reasons that production was stopped?

A. One could be that the presence of fecal ingesta on the carcass--production line there were--four separate production lines in that facility. Which one are you specifically referring to?

Q. Was there at times that the fabrication line was shutdown for the presence of fecal contaminate or ingesta in 200, was there an investigation done by you or someone else to figure out how it had gotten to that point with fecal contamination on it?

A. Yes. Investigations has occurred any time we were notified that the line was stopped because of the identification of fecal ingesta on the product.

In June 2000 XXXXXX was cited for misrepresenting the fat-to-lean ratio of chub and had to recall it. [Pa514 at Pa520, Volume I, Para. No. 11 thereof; Pa424 at 432, Volume III, Para. No. 11 thereof; Pa587, Volume IV, at Para. No. 11] In July 2000 XXXXXX was cited for distributing 300,000 pounds of chub infected with e.coli 0157:H7. [Pa514 at Pa520, Volume I, Para. No. 12 thereof; Pa424 at 432, Volume III, Para. No. 12 thereof; Pa587, Volume IV, at Para. No. 12] Finally, on August 1, 2000 XXXXXX issued a recall of over 250,000 of chub due to the confirmed presence of e.coli 0157:H7. [Pa514 at Pa520, Volume I, Para. No. 13 thereof; Pa424 at 432, Volume III, Para. No. 13 thereof; Pa588, Volume IV, at Para. No. 13]

USDA/FSIS ultimately found that the cause of the recalls was that XXXXXX did not test its raw material (chub) for contamination before shipping it. [Pa514 at Pa540 Volume I, Para. No. 63 thereof; Pa424 at 452, Volume III, Para. No. 63 thereof; Pa607, Volume IV, at Para. No. 63]

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XXXXXX received chub from XXXXXX from both of these infected shipments and it was delivered to XXXXXX's Connecticut warehouse, but XXXXXX maintained sloppy records whereas there was no record as to which of its retail stores received the product once re-processed and shipped. [Pa514 at Pa521, Volume I, Para. Nos. 14-15 and 19 thereof; Pa424 at 433, Para. No. 14-15 thereof; Pa424 at 435, Volume III, Para. No. 19 thereof; Pa584, Volume IV, at Para. Nos. 3-4; Pa588, Volume IV, at Para. Nos. 14-15 and 19.]

XXXXXX also openly allowed the mixing of chub from different sources, providing that the fat-to-lean ratio was the same. [Pa514 at Pa523, Volume I, Para. No. 18 thereof; Pa424 at 434-35, Volume III, Para. No. 18-19 thereof; Pa590, Volume IV, at Para. No. 18] Also, XXXXXX's corporate policy was to sanitize its grinders only once per day, whereas the Journal of Infectious Diseases published in 1996 that it should be done every four hours to diminish the possibility of cross-contamination. [Pa514 at Pa523, Volume I, Para. No. 20 thereof; Pa424 at 435, Volume III, Para. No. 20 thereof; Pa590, Volume IV, at Para. No. 20]

XXXXXX's grandmother made meatballs with the ground beef that she purchased from XXXXXX. She made them the size of golfballs, baked them in the oven at 350 degrees for approximately 25 minutes, frozen them and fed them to her family (including XXXXXX) a couple days later. [Pa514 at Pa525-28, Volume I, Para. Nos. 24-28 thereof; Pa424 at 437-40, Volume III, Para. Nos. 24-28 thereof; Pa592-595, Volume IV, at Para. Nos. 24-28]

Two days after consuming the meatballs, XXXXXX became ill with stomach cramping. He ran a 104-degree fever the following day. The day after that he was brought to a doctor's office and sent for a CT scan. The next day he began suffering from bloody diarrhea whereupon he was hospitalized, transferred to various different hospitals and diagnosed as suffering from e.coli 0157:H7. [Pa514 at Pa528-30, Volume I, Para. Nos. 29-34 thereof; Pa424 at 440-442, Volume III, Para. Nos. 29-34 thereof; Pa595-597, Volume IV, at Para. Nos. 29-34]

XXXXXX's mother ate the meat and exhibited symptoms, but attributed it at the time to morning sickness. [Exhibit D to XXXXXX's initial brief, reproduced at Pa50 at Pa55-Pa56, last two paragraphs that continue onto Pa56.]

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XXXXXX's grandmother also suffered from diarrhea, but attributed it at the time to her history of irritable bowel syndrome. [Exhibit D to XXXXXX's initial brief, reproduced at Pa50 at Pa55-Pa56, last two paragraphs that continues onto Pa56.]

Dr. XXXXXX provided in his report that diarrhea is a definite symptom of e.coli infection, but hospitalization is required in only thirty-percent of cases. [Exhibit E attached to XXXXXX's initial brief, Pa67 at Pa72, Volume I, first paragraph of section (iii)]

Dr. Thomas XXXXXX stated that some persons, including children of XXXXXX's young age, are far more susceptible to contracting e.coli than adults. [4T-12:7 to 13:18] Dr. XXXXXX's report specifically said, "E.coli 0157:H7 generally affects the young, the elderly and people who have pre-existing medical problems most severely." [Exhibit D to XXXXXX's initial brief, reproduced at Pa50 at Pa55, last paragraph thereof.]
Accordingly, XXXXXX was the only one cultured, but he was not the only one exhibiting symptoms, and the fact that he was the only one hospitalized is not determinative of anything. As said more specifically by Dr. XXXXXX:

Where there is a case of food-poisoning, it almost never affects everybody who ate the food. There are several reasons for this. First, there are physical factors that affect the bacteria. The bacteria are not uniformly distributed in the food, they are heated to different degrees depending on their location in the food, and they encounter different food environments (with regard to access to air, etc.) Differences in human susceptibility are the second reason that not everyone gets sick, even if they eat the bacteria. Age and immunological status are major factors in determining the attack rate (number of people sick/number of people exposed x 100). Table 2 shows that the overall attack rate f E.coli 0157:H7 is 15.2%. However, for children in the 0-4 age group, such as XXXXXX XXXXXX, it is four fold higher (62.5%).

[Exhibit E attached to XXXXXX's initial brief at Pa67 at Pa72-Pa73, Volume I, last paragraph thereof that continues onto Pa72; the "table 2' referred to is reproduced at Pa82, Volume I.]

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Dr. XXXXXX's expert opinion also provided that e.coli is not necessarily evenly distributed throughout an entire batch of meat and that e.coli may die in some areas and not others during cooking and freezing processes. [4T-12:7 to 13:18]

Nonetheless, as a result of the contamination XXXXXX contracted hemolytic uremic syndrome (hereinafter referred to as "HUS"), which caused him to go into renal kidney failure. This is a known complication of e.coli 0157:H7 and affects approximately 5% of the individuals who contract it. [Pa514 at Pa530, Volume I, Para. No. 35 thereof; Pa424 at 442, Volume III, Para. No. 35 thereof; Pa597, Volume IV, at Para. No. 35]

XXXXXX spent 67 days in a pediatric intensive care unit and approximately two weeks on kidney dialysis. He was then released and readmitted for another ten days in which he was subjected to exploratory surgery where portions of his bowels and his appendix were removed. [Pa514 at Pa530, Volume I, Para. Nos. 36-37 thereof; Pa424 at 442, Volume III, Para. Nos. 36-37 thereof; Pa597-, Volume IV, at Para. Nos. 36-37]

XXXXXX XXXXXX has and continues to suffer from the scarring of his kidneys. Dr. Sharon XXXXXX of Indiana University, a pediatric nephrofolgist, has stated within a reasonable degree of medical probability that XXXXXX, due to his age and condition, will need 3-4 kidney transplants during the course of his life. [Pa514 at Pa542 Volume I, Para. No. 71 thereof; Pa424 at 454, Volume III, Para. No. 71 thereof; Pa609, Volume IV, at Para. No. 71]

Although the original source of e.coli 0157:H7 is fecal matter or ingesta of bovine animals, there are a few ways that e.coli 0157:H7 may be transmitted. Water has been known to be a conduit, but the possible swimming venues visited by XXXXXX have shown satisfactory sanitation and chlorination records for the time period in question. Raw fruits and vegetables fertilized with contaminated fecal matter, unpasteurized cider's, milk and juices and petting zoos and county fairs are also known conduits for e.coli 0157:H7. XXXXXX, however, did not consume or visit such products, places or events during the time in question. [Pa514 at Pa531, Volume I, Para. Nos. 38-42 thereof; Pa424 at 443, Volume III, Para. Nos. 38-42 thereof; Pa584, Volume IV, at Para. Nos. 38-42]

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XXXXXX's illness is classified by the State of New Jersey as a communicable disease, and therefore is reportable to the State in Trenton. There were 117 cases of e.coli 0157:H7 during the calendar year 2000. XXXXXX and others who contracted e.coli 0157:H7 during the period in question had there stool cultured by a means known as PFGE (Pulse Field Gel Enzyme). This produces a pattern or identifying mark similar to DNA that allows investigators to compare individual illnesses and determine if they are from the same or similar source in hope of preventing an outbreak. XXXXXX's PFGE matched that of seven other people in New Jersey from six different Counties who contracted e.coli 0157:H7 during the period in question. [Pa514 at Pa532-33 Volume I, Para. Nos. 44-46 thereof; Pa424 at 444-45, Volume III, Para. Nos. 43-46 thereof; Pa599-600, Volume IV, at Para. Nos. 43-46]

Questionnaires were provided by the New Jersey Department of Health and Senior Services to the eight people who contracted e.coli 0157:H7 as stated above. Seven of those questionnaires were returned completed. The questionnaires asked for eating habit information for up to six weeks prior to the outbreak. Ground beef was a common thread amongst all of the seven cases that could be analyzed. [Pa514 at Pa533-34 Volume I, Para. Nos. 47-49 thereof; Pa424 at 445, Volume III, Para. Nos. 47-49 thereof; Pa600-601, Volume IV, at Para. Nos. 47-49]

A NJDHSS representative, XXXXXX, testified during his deposition that fruit, vegetables and water could be ruled out as sources of the contamination. [Pa514 at Pa534 Volume I, Para. No. 50 thereof; Pa424 at 446, Volume III, Para. No. 50 thereof; Pa601, Volume IV, at Para. No. 50]

All of the meatballs prepared by XXXXXX's grandmother were not consumed by the family on the day in question. She more frozen. She was able to provide at least half-a-dozen of them to the North West Bergen County Health Commissioner, XXXXXX, for testing. Mr. XXXXXX delivered them to Sani-Pure Laboratories in North Jersey and also to the State labs. The specimens were unfortunately mishandled and the testing process was not scientifically sound. Through some means the specimens ended-up being mixed with an additional 18 meatballs. Those meatballs tested negative for e.coli 0157:H7. [Pa514 at Pa536-38, Volume I, Para. No. 55-58 thereof; Pa424 at 448-49, Volume III, Para. No. 55-58 thereof; Pa603-605, Volume IV, at Para. Nos. 55-58]

XXXXXX of the State labs, who was one of the examiners of the meatball specimens, admitted during his deposition that the specimens were only tested for live e.coli 0157:H7. They were not tested for e.coli 0157:H7 killed during the freezing or cooking process or otherwise. Mr. XXXXXX also admitted that various things could have killed the e.coli 0157:H7, including the freeze-thaw cycles of residential refrigerators. [Pa514 at Pa538-39 Volume I, Para. No. 59-61 thereof; Pa424 at 450-51, Volume III, Para. No. 59-61 thereof]

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In addition to the use of in-house slaughtered animals, XXXXXX purchased raw materials for use in fabrication from 17 manufacturers during July 2000. XXXXXX Packing, though no evidence of a recall as to them had been shown, received raw materials in the same way from 4 of the suppliers also used by XXXXXX. [Pa514 at Pa540 Volume I, Para. Nos. 64-65 thereof; Pa424 at 452, Volume III, Para. Nos. 64-65 thereof; Pa607, Volume IV, at Para. Nos. 64-65]

XXXXXX did not test the raw materials for contamination that were received from the outside sources. XXXXXX relied exclusively upon statements by the outside companies that the supplier had tested the materials. The extent of the supplier's testing was represented to be that 15 out of every 2,000 pounds would be tested primarily for fat-to-lean ratios. Only 375 grams out of the said 15-pound sample would be tested for the presence of e.coli 0157:H7. [Pa514 at Pa540-42 Volume I, Para. Nos. 66-69 thereof; Pa424 at 452-53, Volume III, Para. No. 66-69 thereof; Pa607-608, Volume IV, at Para. Nos. 66-69] 375 grams, of course, is only a "hair" more than three-quarters of a pound.

As stated above, it was basically ruled out that XXXXXX's illness was caused by fruits, vegetables, petting zoos, state fairs or water. [Pa514 at Pa531, Volume I, Para. Nos. 38-42 thereof; Pa514 at Pa534 Volume I, Para. No. 50 thereof; Pa424 at 443, Volume III, Para. Nos. 38-42 thereof; Pa424 at 446, Volume III, Para. No. 50 thereof; Pa598, Volume IV, at Para. Nos. 38-42; Pa601, Volume IV, at Para. No. 50]

Plaintiffs have also supplied liability expert reports from Charles XXXXXX and Dr. Thomas XXXXXX. Each of them has a background in food microbiology and have studied and/or investigated food borne illness outbreaks. Both have stated that to a reasonable degree of probability within their respective fields, the most probable source of XXXXXX's illness stems from consuming the meatballs that had originated from XXXXXX. [Pa514 at Pa542-43 Volume I, Para. Nos. 72-74 thereof; Pa424 at 454-55, Volume III, Para. No. 72-74 thereof; Pa609-610, Volume IV, at Para. Nos. 72-74]

Each of these experts minimized the probability - if not, eliminated it altogether - of contamination from sources other than meat. [Pa514 at Pa543 Volume I, Para. Nos. 75 thereof; Pa424 at 455, Volume III, Para. No. 75 thereof; Pa610, Volume IV, at Para. No. 75]

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F. The Court's Ruling as to XXXXXX's Motion.

The court's findings of fact and conclusions of law as to XXXXXX's motion for summary judgment is contained in the transcript dated July 29, 2004 (referred to herein as "3T").

The court granted summary judgment to XXXXXX because of two statements made by plaintiffs' expert witnesses to the effect that it was more likely than not that the contaminated product came from XXXXXX XXXXXX rather than from XXXXXX. The trial court said verbatim,

Plaintiff's own expert's reports failed to implicate the movant XXXXXX Packing. Plaintiff's expert Dr. Charles XXXXXX (phonetic), a food safety expert in his report of May 10th, 2004 writes, quote: Within a reasonable degree of scientific certainty XXXXXX XXXXXX consumed contaminated ground beef which originated most likely from XXXXXX Packing and was reground at XXXXXX in Newburgh, New York. And this exposure was the proximate cause of his illness and injuries, end quote.

Plaintiff's expert, Thomas XXXXXX (phonetic), a food - food microbiologist, expresses with reasonable degree of microbiological certainty that the meat purchased at XXXXXX caused the illness. His report is critical of XXXXXX and XXXXXX. There's no criticism of XXXXXX in his report.

Thus, based on this record, plaintiff would not be able to convince a rational fact-finder by a preponderance of the evidence that XXXXXX's beef was contaminated and caused the plaintiff's injury.

[3T-5:10 to 6:4]

The trial court found that it was significant that XXXXXX was the only person who ate the meatballs that night who contacted e.coli. [3T-18:10 to 19:8, quoted verbatim at the end of this paragraph.] Moreover, the court required as a burden of proof in order for plaintiffs to survive summary judgment that it was "certain" that the source of XXXXXX's illness was from the meat.

Here there is no certainty that the source of plaintiff's ecoli was the - the meat, in the meatballs. Ecoli can be contracted from a number of common sources such as fruit, vegetables, water. There are some important facts in the this case that suggest that ecoli was not the source of plaintiff's infection, namely, that no one else who at[e] the meatballs became sick, that the meatballs were tested and there was no live ecoli found in them. It's hotly contested in this case whether or not the meat was ever the source of plaintiff's infection. And some of the fact that have come out in the companion motion involving the co-defendant XXXXXX indicate there are even further facts that would suggest the meatballs were not the source of plaintiff's infection.

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But certainly based on the record in this motion, the fact that no one else contracted the - the meatballs, the fact that there was no live ecoli found in - in the meatballs, plaintiffs can't establish the premise for the application of the Anderson vs. Somberg shift in the burden of proof, namely, the plaintiff can't establish that all likely responsible parties may have caused the ecoli affection - infection are before the court.

[3T-18:10 to 19:8, Emp. Supp.]

The trial court also took issue with the fact that laboratory tests failed to find live e.coli in the meatballs. [3T-18:10 to 19:8]

G. Court's Ruling as to XXXXXX and XXXXXX's Motions.

The court's findings of fact and conclusions of law as to XXXXXX and XXXXXX's motions for summary judgment is contained in the transcript dated August 2, 2004 (referred to herein as "4T").

The court found it to be an undisputed fact while deciding XXXXXX and XXXXXX's motions for summary judgment that right before XXXXXX's infection, XXXXXX had conducted two separate recalls for e.coli contamination in its ground beef products, and at the time in question seventy-five percent (75%) of the ground beef being sold at XXXXXX was from XXXXXX. [4T-4:24 to 5:15]

Although saying that it was probable that some of the meat XXXXXX consumed was from XXXXXX, the court said that, "Discovery has been unable to pinpoint anymore precisely whether or in what proportion the meat Mrs. XXXXXX purchased was XXXXXX meat." [4T-5:16-21, Emp. Supp.]

The court acknowledged that XXXXXX very well "could have eaten the unlucky meatball that was contaminated", but the court granted XXXXXX summary judgment anyways, claiming that this was only one "possibility" and that there was "no direct evidence that any of this actually happened". [4T-12:7 to 13:18] In response to the expert testimony that 75% of all e.coli illnesses are caused by consumption of ground beef, the court also said that,

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[I]f you know more than 50 percent of the patrons of a movie theatre failed to pay admission you can't select one person at random and say that by a preponderance of the evidence that particular person failed to pay due to that statistic.

[4T-15:9-20]

STANDARD OF REVIEW

This appeal, in great part, questions the law that should have been applied to decide the issues presented herein. A trial court's conclusions of law are not binding on appeal. On appeal, "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty vs. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

This case was ultimately disposed of pursuant to three Orders of summary judgment. In such cases, "This court's standard of review mirrors that of the trial court: whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Mango v. Pierce-Coombs, 370 N.J. Super. 239, 249 (App. Div. 2004), citing Kopin vs. Orange Prods., Inc., 297 N.J. Super. 353, 366 (App. Div.), certif. denied, 149 N.J. 409 (1997), and McClelland vs. Tucker, 273 N.J. Super. 410, 415 (App. Div. 1994).

Thus, the standard of review of summary judgment motions is de novo. "Upon appellate review of summary judgment, we apply the same standard as the trial court, and, in effect, exercise de novo review." Bennett v. Lugo, 368 N.J. Super. 466, 479 (App. Div. 2004), quoting Prudential Property Ins. vs. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).

LEGAL ARGUMENT

POINT I

PLAINTIFF'S NEGLIGENCE CLAIMS ARE NOT SUBSUMED BY HIS STRICT LIABILITY CLAIMS

Defendants have taken the position below that, as a general rule, since the amendment to the New Jersey Product Liability Act (NJPLA), N.J.S.A. 2A:58C-1 to 11, common law negligence claims are subsumed by products liability claims.

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The word "negligence" does not appear anywhere in the NJPLA, except in N.J.S.A. 2A:58C-1 which mentions contributory negligence, and our Supreme Court has already rendered an opinion which contradicts defendants' position.

In Cartel Capital Corporation v. FIRECO, et. al., 81 N.J. 548 (1980), the Supreme Court held that a plaintiff does not have to choose between strict liability and common law negligence claims. Id. at 564. At issue in the case was the design, installation by company technician and service of a sprinkler system that eventually caused a fire in the restaurant in which it was installed. "When the case was submitted to the jury, plaintiff's counsel insisted that two separate causes of action existed, one being negligence and the other strict liability." Id. at 562.

The Cartel Court held "a plaintiff is not required to elect his theory of recovery and thereby gamble on the outcome of the trial findings." Id at 564, citing Shapiro v. Solomon, 42 N.J. Super. 377 (App. Div. 1956). "No valid reason appears to require a plaintiff to elect whether to proceed on the theory of strict liability in tort or on the theory of negligence." Id.
In addition to that, in the midst of a legal malpractice case regarding the claims asserted on a plaintiff's behalf, the Appellate Division recently said, "We do not necessarily agree that plaintiff's products liability claim subsumed her negligence claim." Jerista v. Murray, 367 N.J. Super. 292, 298 (App. Div. 2004).

Other jurisdictions, including the Supreme Courts of Wisconsin, Washington, Alabama, Utah, and California, also allow both the negligence and strict liability claims to go to the jury and hold that it is error to refuse to charge on both. See Jimenez vs. Sears, Roebuck & Co., 482 P.2d 681, 774 (Cal. 1971)("No valid reason appears to require a plaintiff to elect whether to proceed on the theory of strict liability in tort or on the theory of negligence"); Slisze v. Stanley-Bostitch, 979 P.2d 317 (Utah 1999)("We hold that the plain language of the statute does not preclude a party from jointly bringing common law negligence claims and that it is, therefore, possible to simultaneously bring a negligence and a strict liability claim"); Giese v. Montgomery Ward, Inc., 331 N.W. 2d 585, 596 (Wis. 1983) ("… the lawn mower was in a defective condition unreasonably dangerous to users and bystanders, and … Montgomery Ward was negligent in manufacturing and designing the product. Therefore the submission of the two theories was not error …"); Vesta Fire Ins. Corp. v. Milam & Co. Const., Inc., No official citation yet, 2004 WL 1909458, *14-15 (Ala. 2004), quoting Tillman vs. R.J. Reynolds Tobacco Co., 871 So. 2d 28, 34-35 (Ala. 2003); Little vs. PPG Industries, Inc., 594 P.2d 911, 916 (Wash. 1979); Calvanese vs. W.W. Babcock Company, Inc., 412 N.E. 2nd 895, 900 (Mass. App. 1980); Corbin vs. Coleco Industries, Inc., 748 F.2d 411, 416-17 (7th Cir. 1984); Radtke v. Cessna Aircraft Co., 707 F.2d 999, 1000 (8th Cir. 1983).

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A. Plaintiff has Both Claims/Pleading Alternatives.

Plaintiff has a right under the New Jersey Rules of Court to plead his case in the alternatives. R. 4:5-6. Under the existing caselaws, he also has a right to present those alternative theories to a jury providing that the facts of the case suggest that a jury could find common law negligence in lieu of product's liability. The following two cases illustrate this point.
In Universal Underwriters Insurance v. Public Service Electric & Gas Company, 103 F.Supp.2d 744 (D. N.J. 2000), the insurer sued the electric utility for negligence, strict products liability, and breach of implied warranty for damages that resulted from a fire in a building owned by the insured's. Id. at 745.

The Universal court recognized that as a general rule, common law actions for negligence are subsumed by the NJPLA, but the court also recognized that where an action lay in the fact that the defendant had failed to properly train and supervise employee's, common law negligence should still be available.

The court equated maintenance and installation with the defective training and procedures of employees. Therefore, all the plaintiff needed to prove was that the defendant did not properly train their employees, causing the defect in the product and their negligence claim can survive. Id. at 748.

Accordingly, in Universal, just like here, a jury could find that the various defendants failed to properly train their employees, but that there is not necessarily liability under the NJPLA. Plaintiff is entitled to such alternative pleading.

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Potwora v. Grip, 319 N.J. Super. 386 (App. Div 1999), seems to have a contrary holding, but it is distinguishable on the facts. There, the plaintiff-decedent sought to bring a cause of action under both negligence and strict liability for a defective motorcycle helmet that caused decedent's death. Id. at 400. The theories under which negligence was sought surrounded the performance of the motorcycle helmet itself without regard to an act or omission of one of the manufacturer's employees. Accordingly, liability in Potwora rested exclusively under the NJPLA.

Taking Universal and Potwora together, the state of the law is that so long as liability could attach for injuries sustained as a result of the defendants' employees besides from the product itself, the plaintiff may present his alternative claims to the jury.

There are several different findings that a jury could reach. A jury could find that (a) plaintiff's injuries were sustained from consumption of a ground beef product, (a) he cannot prove from which of the two distributor defendants the product originated and (c) XXXXXX, notwithstanding, was negligent under a common law theory for mixing the meats together without keeping proper records. A jury could find XXXXXX liable for negligently maintaining its records and causing plaintiff to not be able to trace the origins of the contaminated product. This scenario bespeaks common law negligence, not product liability.

Plaintiffs' claims for breach of implied and express warranty are also not covered by the NJPLA. Plaintiff alleges that the sellers created such a warranty in this particular matter by setting up a self-regulated system under the guise of a Federal Inspection Program whereby a warranty was made and given to a potential consumer in the form of a certified label.

B. Public Policy.

It is explicitly the public policy of the State of New Jersey to ensure that food products are safe and wholesome. Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 381-82 (1960); Department of Health v. Sol Schnoll Dressed Poultry Co., 102 N.J. Super. 172, 176 (App. Div. 1968).

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"The common law has always imposed a high standard of care on the preparation and serving of food. From very early times, the common law imposed an extraordinary duty on purveyors of food and drink to provide wholesome, pure products." Koster v. Scotch Associates, 273 N.J. Super. 102, 109 (Law Div. 1993), quoting Mexicali Rose vs. Superior Court (Clark), 822 P.2d 1292, 1305 (Cal. App. 4th 1992) (Mosk, J., dissenting).
In Parks v. Pep Boys, 282 N.J. Super. 1 (App. Div. 1995), the court held the NJPLA inapplicable to a claim against a retail store for injuries caused by the sale of a can of Freon where the focus of the claim was the negligent sale and violation of a statute forbidding sale to minors. Id. at 473. The claim of negligence was allowed to survive in the presence of another statute or public policy.

Public policy dictates that plaintiff's case be permitted to survive summary judgment. Manufacturers of ground beef, chub and similar products are required to provide safe food to the consumer, and companies that retail the product must maintain proper records of what product is sold where, what product is mixed with which and so on.

POINT II

THERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO PLAINTIFF'S COMMON LAW NEGLIGENCE CLAIMS

To establish a cause of action for negligence, a plaintiff must prove breach of a duty of care and actual damages sustained as a proximate cause of the breach. Weinberg vs. Dinger, 106 N.J. 469, 484 (1987). Thus, all that XXXXXX needs to prove to sustain a negligence claim is that there was a duty of care to ensure that the meat was not contaminated with e.coli, that the defendants breached that duty and that XXXXXX suffered a damage.

A. The Duty.

The duty to prevent contamination of meat products is contained in the United States Department of Agriculture's "zero tolerance" policy for e.coli. [Provide here a zero tolerance citation.] The USDA reaffirmed its zero tolerance policy on October 7, 2002. See E. coli 0157:H7, 67 Fed. Reg. at 62329. The duty is also set forth hereinabove in plaintiff's legal argument pertaining to public policy at Point I(b), supra.

XXXXXX's duty to sell safe food products is also set forth in Point I(b), supra.

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B. The Breach.

It is a jury question as to whether the duty was breached.

C. Damages.

XXXXXX's damages are adequately set forth in the Statement of Facts. They will not be set forth here again for sake of simplicity.

POINT III

THE COURT SHOULD FASHION A THEORY OF ALTERNATIVE LIABILITY, IF NECESSARY, SO THAT INNOCENT PLAINTIFFS WILL NOT BE LEFT REMEDILESS

If plaintiff cannot sustain a claim grounded in product liability or common law negligence, the court as a matter of public policy must fashion an alternative form of liability whereby plaintiffs in XXXXXX's position can present their claims.

Alternative liability theories can be traced to the California Supreme Court case of Summers v. Tice, 199 P.2d 1 (Cal. 1948). There, two hunters fired their guns in the direction of the plaintiff, whose eye was severely injured as a result of one of the shots. Id. at 1-2. At trial he was unable to prove which defendant hit his eye. Id. at 2. The burden was shifted to each defendant to exculpate himself, in the failure of which each would bear joint and several responsibility for the damage. Id. The theory is only applicable where all possible guilty parties are before the court.

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The Jackson plaintiff sustained a claim against both Magnavox and Merit Transportation Corporation. Id. The Appellate Division ordered retrials because there were improper jury instructions during the initial trial. Id. at 6.

During the retrial, the jury would be required to decide which of the two was liable because "[t]he verdict of the jury … establishes … that at least one of the two named defendants had possession of the vehicle when it was left on the street … and … that the action of that defendant … [caused] the accident." Id. at 7.

In making this finding, the Appellate Division explicitly rejected Magnavox and Merit Transportation Corporation's arguments that "neither of them can be held to be the responsible party unless plaintiffs meet their burden of showing by the preponderance of the probabilities that a particular one of them is". Id. In response to that, the court said

We disagree. Rigid procedural principles must bow to common sense and the interests of justice. Where it is virtually certain that One of two defendants is responsible for plaintiffs' injuries, and the evidential key as to which it is, is peculiarly within the knowledge of defendants, it is fair that the defendants be called upon to furnish information upon the basis of which the jury can determine the responsible party.

Id.

The Jackson court relied, in part, upon Nopco Chem. Div. v. Blaw-Knox Co, 113 N.J. Super. 19 (App. Div. 1971), over ruled and dissent adopted by 59 N.J. 274 (1971). There, our Supreme Court took issue with cases presenting circumstances similar to Jackson and the case at bar where an innocent and seriously injured plaintiff can be left remediless. The Court reasoned that "the complexity of the situation should not leave Plaintiff remediless or require it to sue each defendant separately and successively at its peril simply because there is no precise precedent in this State." Id., 59 N.J. at 282.

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Where … there is involved an injury resulting from a single act of wrongdoing (product liability) committed by one of the defendants with the proof not clear as to which defendant, if any, is guilty of the single act and the inference can be drawn that one of the defendants is responsible, the defendants will be required to present evidence of their non-liability.

Id. at 346.

Another case is Feriggno v. Eli Lilly & Co., 175 N.J. Super. 551 (Law Div. 1980), where drug manufacturers who failed to exculpate themselves were liable to the extent of their share of the market.

Finally, in McCarley v. West Quality Food Service, 960 S.W. 2d 585 (Tenn. 1998), Defendant West Quality Food Service, d/b/a Kentucky Fried Chicken, moved for summary judgment claiming, inter alia, that neither the KFC chicken or bacon that the injured party had consumed earlier had been tested for the bacteria in question. Id. at 587. KFC argued, therefore, that absent a test of both food sources, the injured party "'cannot carry his burden of proof to prove by a preponderance of the evidence that the chicken caused the food poisoning.'" Id. at 587.

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The trial court granted KFC's motion for summary judgment and the Court of appeals affirmed, but the Tennessee Supreme Court reversed. Id. The court reasoned that in food cases it is impossible to have a sample of all consumed foods available for testing whereas the foods have been consumed or discarded in their usual course. The court therefore held that causation may be proved by expert testimony.

We find that public policy mandates a workable and rational standard in food poisoning cases. Medical testimony, by itself, can likely never pin-point causation absent a testing of all possible food sources. If the contaminated food has been fully consumed, however, there is simply nothing to test. Moreover, if symptoms do not manifest within a day or two, it is highly improbable that all possible sources of contamination will be available for testing. Servers of contaminated foods should not be able to circumvent liability merely because the contaminated product they served was either fully consumed or its remains were disposed of at the end of the meal. We, therefore, hold that causation may be established by either expert testimony or through a combination of both expert and lay testimony.

Id. at 589.

B. Applying Alternative Liability.

Due to XXXXXX poor record keeping and mixing of the products together, plaintiff most likely will not be able to definitively prove from which of the two distributor defendants the product originated. The surrounding circumstances, however, are that

(1) Illnesses from e.coli in contaminated meat do not happen absent negligence;

(2) The meat in question in question was under the exclusive control of the three defendants;

(3) There were outbreaks of e.coli associated with XXXXXX's ground beef products during the time in question;

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(4) XXXXXX provides 75% of XXXXXX's ground beef;

(5) XXXXXX did not provide ground beef products to XXXXXX from July 8 to July 20, 2000, whereas the product in question was purchased at XXXXXX during the week of July 10, 2000;

(6) XXXXXX consumed XXXXXX or XXXXXX ground beef products at the time of those outbreaks; and,

(7) XXXXXX became extremely ill from e.coli (an extremely rare condition) when he consumed those products.

In fashioning a from of alternative liability, the court, based upon these circumstances, is encouraged to require the defendants, individually and collectively, to exculpate themselves or be liable to plaintiff for damages.

POINT IV

DISPUTED MATERIAL FACTS EXIST AS TO XXXXXX

The trial court provided generally no justification for its dismissal of XXXXXX. Even if XXXXXX could not prove from which of the two distributors, XXXXXX or XXXXXX, the chub originated at, XXXXXX had expert testimony to the effect that it was more likely than not that it was the ground beef purchased from XXXXXX that caused his e.coli infection. That was a sufficient disputed fact to send the matter to the jury. It was jury questions whether it was meat that got XXXXXX sick and whether the meat was purchased at XXXXXX.

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The court is referred to Koster v. Scotch Associates, et. al, 273 N.J. Super. 102 (Law Div. 1993). In Koster all plaintiffs were served different foods and there was no direct evidence that any particular food was the cause of their illness. Id at 104.

The New Jersey Department of Health investigated and tested eggs and other products at the restaurant where the plaintiffs alleged to have consumed the contaminated products. Despite the fact that it was believed the source of infection was raw eggs used in Caesar salad dressing, all eggs tested negative for salmonella. Id. at 105. Plaintiff's motion for summary judgment against the restaurant that served the food was still granted. Id. at 111.

Thus, even thought there may be disputes as to where the meat in chub form originated from, there is little dispute that XXXXXX retailed the product and that liability attaches to that.

CONCLUSION

For all foregoing reasons, the Court should reverse the trial court's summary judgment Orders and remand this matter for additional discovery and trial.

XXXXXXXXXXXXXXXXX, LLC

______________________________
XXXXXXXXXXXXXXXXXXXX, Esq.
Attorneys for Plaintiffs

Dated: