TERESE LANDRY VERSUS JOEY'S, INC. D/B/A JOEY'S SPECIALTY FOOD

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-441

TERESE LANDRY

VERSUS

JOEY’S, INC. D/B/A JOEY’S SPECIALTY FOOD

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2016-5339, DIVISION “L”
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Marc T. Amy, Judges.

AFFIRMED.

Richard Todd Musgrave
Sean P. Sullivan
Musgrave, McLachlan & Penn, L.L.C.
1515 Poydras Street – Suite #2380
New Orleans, LA 70112
Telephone: (504) 799-4300
COUNSEL FOR:
Defendant/Appellee – Joey’s, Inc. d/b/a Joey’s Specialty Food

Dwazendra J. Smith
Doran & Cawthorne, P.L.L.C.
521 E. Landry Street
Opelousas, LA 70571
Telephone: (337) 948-8008
COUNSEL FOR:
Plaintiff/Appellant – Terese Landry

THIBODEAUX, Chief Judge.

Plaintiff Terese Landry appeals the trial court’s grant of summary

judgment in favor of Defendant Joey’s Inc. d/b/a Joey’s Specialty Food. Plaintiff

filed suit alleging that her consumption of a fried shrimp po-boy sandwich from

Defendant’s food store caused her to become ill with food poisoning. Defendant

moved for summary judgment thereafter, contending that Plaintiff could not prove

by a preponderance of the evidence that the food she allegedly consumed was

deleterious, nor that its consumption was the direct cause of her illness. The trial

court granted Defendant’s Motion for Summary Judgment, finding that a reasonable

juror could not conclude from the facts adduced that Plaintiff could sufficiently carry

her burden of proof at trial. Because we find that Plaintiff has not presented evidence

sufficient to create a genuine issue of material fact, we affirm the trial court’s

judgment dismissing Plaintiff’s claims with prejudice.

I.

ISSUE

We must determine whether the trial court erred in granting

Defendant’s motion for summary judgment.

II.

FACTS AND PROCEDURAL HISTORY

On October 7, 2015, at approximately noon, Plaintiff Terese Landry

ordered a fried shrimp po-boy sandwich from Joey’s, a lunchtime food store owned

and operated by Defendant Joey’s Inc. d/b/a Joey’s Specialty Food (“Joey’s”) in

Lafayette, Louisiana. Because the food store was full of patrons at the time, Ms.

Landry decided to eat the sandwich while sitting alone in her parked car. She

testified that the sandwich she received, however, had no fried shrimp in it, but

instead contained a mayonnaise-like mixture and a green, leafy vegetable. In

addition to finding that her order was incorrect, Ms. Landry noted that her sandwich

“just didn’t taste right.” In spite of these facts, Ms. Landry never sought to correct

her order, and further proceeded to eat the entire sandwich.

At approximately 4:00 a.m. the following morning, an ambulance was

called after Ms. Landry reported becoming extremely ill with severe nausea,

vomiting, and diarrhea. Upon presentation to the emergency room, Ms. Landry

stated to Dr. Edward Lyons that she had eaten a po-boy sandwich the day before,

and that her symptoms began approximately six hours prior to calling the ambulance.

She also stated she believed that her sandwich was cross-contaminated with fish and

that she was suffering from a fish allergy, despite never having been medically

diagnosed with any food allergies. Dr. Lyons diagnosed Ms. Landry with

diverticulitis, pancreatitis, and enteritis. After a stool culture taken came back

positive for the Campylobacter bacterium, Dr. Lyons related the enteritis to the

presence of Campylobacter. Following her diagnosis, Ms. Landry was hospitalized

for seven days.

In his deposition, Dr. Lyons stated that he believed that the

Campylobacter was the “inciting agent” of Ms. Landry’s illness. However, he also

testified that he was not aware of that particular bacterium being transmitted from

fish or seafood, though it is commonly found in poultry, swine, and sometimes cattle.

He further testified that there was no way to test or determine what Ms. Landry had

eaten the day before. Ultimately, Dr. Lyons was unable to determine the specific

origin of the Campylobacter bacterium contracted by Ms. Landry, and thus could

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not state that her illness was more likely than not caused by her consumption of the

Joey’s po-boy sandwich.

Ms. Landry filed suit against Joey’s, alleging that the shrimp po-boy

sandwich she consumed was in a deleterious condition at the time it was purchased,

and that her consumption of the sandwich caused her to become ill with food

poisoning. Following its Answer, Joey’s filed a Motion for Summary Judgment

before the trial court, asserting that Ms. Landry failed to satisfy her burden of

proving by a preponderance of the evidence either of the above elements. Joey’s

also produced the sworn affidavit of Joey Beyt, the food store’s owner, attesting that

he was first put on notice of the alleged food poisoning upon receiving Ms. Landry’s

Petition, that he had not been found in violation of any health code or standard, and

that no other patron alleged to have contracted food poisoning from his location.

After finding that she failed to present any evidence refuting the sole medical opinion

on causation, the trial court granted the motion and dismissed Ms. Landry’s claims

with prejudice.

On appeal, Ms. Landry seeks a reversal of the trial court’s granting of

summary judgment by arguing that she “can adequately prove more probable than

not that Appellee’s po-boy was the cause of her severe food poisoning.” She argues

that genuine issues of material fact remain as to whether: (1) the shrimp po-boy she

consumed from Joey’s was deleterious, which was the cause of her illness; (2) the

Campylobacter bacterium came from the shrimp po-boy; and (3) there were other

similar food poisoning cases at the hospital at the time of her admission.

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III.

STANDARD OF REVIEW

An appellate court reviews the grant of a motion for summary judgment

de novo, “using the same criteria that govern the trial court’s consideration of

whether summary judgment is appropriate, i.e., whether there is a genuine issue of

material fact and whether the mover is entitled to judgment as a matter of law.”

Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La. 5/22/07),

958 So.2d 634, 638. We shall consider the record and all reasonable inferences that

may be drawn from it in the light most favorable to the non-moving party. Hines v.

Garrett, 04-806 (La. 6/25/04), 876 So.2d 764.

If the mover will not bear the burden of proof at trial on the matter, then

he must only present evidence pointing out the absence of factual support for one or

more essential elements to the non-moving party’s case. La.Code Civ.P. art.

966(D)(1). Once the mover properly supports his motion for summary judgment,

the burden is on the non-moving party to produce factual support sufficient to

establish the existence of a genuine issue of material fact or that the mover is not

entitled to judgment as a matter of law. Id. However, the failure of the non-moving

party to set forth evidence of a material factual dispute mandates the granting of the

motion. Babin v. Winn-Dixie Louisiana, Inc., 00-78 (La. 6/30/00), 764 So.2d 37.

Where the threshold question in reviewing a trial court’s grant of

summary judgment is whether a genuine issue of material fact remains, such a

determination must be viewed in light of the relevant substantive law. Romero v.

Allstate Ins. Co., 08-256 (La.App. 3 Cir. 5/13/09), 11 So.3d 579, writ denied, 09-

1325 (La. 10/9/09).

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IV.

LAW AND DISCUSSION

On appeal, Ms. Landry contends that the trial court erred in granting

Joey’s motion for summary judgment. Ms. Landry argues that she can prove the

requisite elements of deleteriousness and causation such that she is able to bear her

burden of proof by a preponderance of the evidence. This court has applied the

following standard in establishing liability for the consumption of deleterious food:

To meet his or her burden of proof in a food
poisoning case, the plaintiff must prove that the
deleterious condition existed in the product when it was
purchased. The plaintiff must further prove the existence
of a causal relationship between the illness or injury and
the consumption of the food. In fulfilling this burden of
proof, “it is not necessary for the consumer to negate every
conceivable cause but he must show that it is more likely
than not the food’s condition caused the injury of which
he complains.”

Foster v. AFC Enterprises, Inc., 04-1014, p. 3 (La.App. 3 Cir. 3/2/05), 896 So.2d

293, 296 (citations omitted) (quoting Griffin v. Schwegmann Bros. Giant

Supermarkets, Inc., 542 So.2d 710, 712 (La.App. 4 Cir. 1989)).

Ms. Landry relies on the following language cited by the Foster ruling

to argue that she can prove the deleteriousness of the po-boy sandwich she allegedly

consumed:

“The courts have never compelled a plaintiff to
produce an actual analysis of the food consumed in order
to establish its unwholesome condition. Rather, the courts
have been willing to infer the deleterious nature of the
food consumed from the circumstances surrounding the
illness. In all of the cases in which there has been
successful recovery, the plaintiff has shown that the food
was consumed by him, and that no other food which might
reasonably be assumed to have caused the illness had been
consumed within a number of hours before or after the
consumption of the suspect product. The plaintiff has also
had medical opinion to the effect that it was probable that

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his illness was caused by the consumption of the particular
product involved. In addition, the successful plaintiffs in
the above cases have been able to show some other
independent circumstance, which tends to prove his
case. . . .”

Id. (quoting McCauley v. Manda Bros. Provisions Co., 202 So.2d 492, 495 (La.App.

1 Cir.), writ granted, 251 La. 402, 204 So.2d 578 (1967), aff’d, 252 La. 528, 211

So.2d 637 (1968)). In so relying, Ms. Landry asserts that this court should be willing

to infer the deleteriousness of the po-boy sandwich she allegedly consumed from the

circumstances surrounding her illness. Id. We disagree. 1

Ms. Landry testified that the sandwich was the only food she had eaten

on the day before falling ill. However, while she need not produce an analysis of

the suspect food, we find particularly troublesome the evidence offered by Ms.

Landry regarding her actual consumption of the food. Beyond her own deposition

testimony, no evidence has been presented to corroborate either the purchase or the

consumption of the Joey’s po-boy sandwich. Moreover, Ms. Landry could not

identify the very food which she now alleges was in a deleterious condition at the

time she purchased it from Joey’s:

Q: In looking back and thinking about the sandwich, are
you able to say definitively that it was fish?

A: All I can tell you, I asked for a shrimp sandwich. I
thought I was getting a fried shrimp sandwich. And when
I got it, it was like a mixture of – of something with the
green leafy stuff inside. And I was real hungry, and I ate
it all. And that’s it. Which I’ll regret it until – for the rest
of my life.

....

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We also note that the decision in Foster was rendered from a procedural posture distinct
from that of the instant case. While the court in Foster did not disturb the trial court’s findings
that the plaintiff had sufficiently met his burden of proof pursuant to a manifest error standard of
review, this court is tasked with conducting its own independent, de novo review of the trial court’s
grant of summary judgment in favor of Defendant.

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Q: The shrimp itself, did it look like –

A: There was no shrimp in it.

Conversely, Joey’s cites to McCauley as the original source of the

language quoted by Foster to emphasize several points. First, Joey’s points out that

Ms. Landry does not have “medical opinion to the effect that it was probable that

[her] illness was caused by the consumption of a particular product involved.”

McCauley, 202 So.2d at 494-95. As examined in greater detail below, Dr. Lyons

could not and did not state that it was more probable than not that Ms. Landry’s food

poisoning was caused by her alleged consumption of the po-boy sandwich.

Second, Joey’s argues that Ms. Landry has not “been able to show some

other independent circumstance, which tends to prove [her] case,” unlike other

successful plaintiffs. Id. at 496. As Joey’s correctly notes, McCauley goes on to

feature illustrative examples in the jurisprudence of what constitutes an

“independent circumstance,” which were not included in the language of Foster

relied upon by Ms. Landry:

In the Doyle case, supra, for instance, it was shown that
the plaintiff’s companion, who ate in the same place at the
same time of the same products also became ill. In the
MacLehan case, supra, the plaintiff partook of the same
pie on two different occasions, and got sick on each
occasion. In the McAvin case, supra, the plaintiff noticed
that the shrimp salad involved had a bad odor and taste and
ate only a small portion of it. In Ogden v. Rosedale Inn,
supra, only those persons who consumed the suspect salad
became ill. In the cases of Love v. New Amsterdam
Casualty Company, supra, and Gilbert v. John Gendusa
Bakery, Inc., supra, foreign substances were found in the
food consumed.

Id.

While Ms. Landry’s brief correctly posits that she is not required to

show that others have fallen ill from contaminated food per Foster, it goes on to

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suggest that her testimony describing two other separate cases of food poisoning

begets a genuine issue of material fact with respect to her own illness. We find no

merit in this assertion, given the lack of any material connexity established by the

following testimony:

Q: Are you aware of anyone else that became sick from
eating at Joey’s Specialty Food?

A: There was [sic] two people at the hospital when I was
there. I was told that by the workers.

Q: And what did the workers say, exactly?

A: All they said, there was [sic] two people with the same
problem. That’s all I know.

....

Q: So all they told you, or all that you knew is that two
other people at that hospital, at that same time, were also
having stomach issues?

A: Not the issues. They had gotten food poisoning, just
like me.

Q: [T]hey didn’t say where from or what they ate?

A: No, sir. They can’t do that.

In fact, Ms. Landry has not offered any proof relative to the

unwholesomeness of the po-boy sandwich beyond presenting her own version of

events. See McCauley, 202 So.2d at 496.

Q: What did it taste like?

A: It didn’t taste right, but I was very hungry, so I ate it
all.

Q: Did it have an odor?

A: No. It just didn’t have the right taste.

....

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Q: So what was in it?

A: I thought I was getting a fried shrimp sandwich and I
got -- you know, when you – you make a shrimp salad --

Q: Yes.

A: -- you got to crush everything? Well, that was not like
that. It was more like, mayonnaise mixture.

Q: Okay.

A: But it didn’t taste like it was mayonnaise either.

Q: Why didn’t you go back in if they gave you the wrong
sandwich?

A: I was in a hurry. Because I didn’t want to go back in.
I didn’t have time. I wanted to run some errands, but I had
went straight back to my house.

Though she testified about the taste not being “right,” her testimony suggests that it

was due to receiving the incorrect order, rather than attributing an impurity to the

sandwich. She then decided to eat the entire sandwich with the understanding that

it was not the sandwich she ordered. Though she “did not open the sandwich” to see

its contents, she responded affirmatively that she “knew immediately it wasn’t fried

shrimp[.]” Despite remaining on the premises to eat the sandwich, she neither

sought to correct her order, nor address the taste of the sandwich with the staff at

Joey’s. Further, it is undisputed that Ms. Landry never contacted Joey’s regarding

her alleged illness thereafter, as reflected in her own testimony and the sworn

affidavit of Joey Beyt.

From our review of the record, Ms. Landry has not presented evidence

of any independent circumstance tending to prove her case. In the absence of

evidence demonstrating otherwise, Ms. Landry’s unwillingness to correct her order

and her consumption of the entire sandwich appear to directly contradict her efforts

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of proving the deleteriousness of the food consumed. Though she was able to

provide testimony regarding the timing of her alleged consumption of the food in

the hours before falling ill, we are not so inclined to infer the deleteriousness of the

po-boy sandwich from the remaining facts adduced. Accordingly, we find that Ms.

Landry has not presented facts creating a genuine issue of material fact with respect

to whether the po-boy sandwich she allegedly consumed was in a deleterious

condition at the time of purchase from Joey’s food store.

Causation

Next, Ms. Landry asserts that the trial court erroneously granted summary

judgment based upon a mischaracterization of Dr. Lyons’s testimony regarding

causation. While the trial court found that “Plaintiff presented no evidence that a

fish product can cause the food-borne bacteria with which she was diagnosed,” Ms.

Landry alleges that Dr. Lyons’s deposition testimony “establishes a clear causal link”

between the food consumed and the injuries suffered. We reject Ms. Landry’s

argument, and likewise agree with the trial court’s finding, for the following reasons.

Dr. Lyons provided the sole medical opinion in this case, as he was the

only medical provider who treated Ms. Landry’s illness. Coincidentally, Dr. Lyons

was Ms. Landry’s primary care physician at the time, and she visited him for a

regular check-up just prior to having lunch at Joey’s the day before. He testified that

Ms. Landry has always suffered from a degree of gastrointestinal issues, including

peptic ulcer disease, chronic gastritis, and non-celiac gluten sensitivity. However,

he has never diagnosed Ms. Landry as having any food allergies.

Well, she told me . . . that she had an allergy to fish.
She told me she had had a po-boy, and she thinks it had
been cross-contaminated with fish. I don’t know why she
thought that. She also told me a bit later during the

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hospital stay that she thought she had passed a worm. I
had cultured her stool, and we identified Campylobacter.
I’m not aware of Campylobacter being transmitted from
fish. It’s not uncommon in poultry or in swine, possibly,
to a lesser extent, cattle.

Upon identifying the Campylobacter infection, Dr. Lyons testified that

“[he] felt that the Campylobacter was the inciting agent” of her illness. We note

here that while Ms. Landry insists the trial court erroneously mischaracterized Dr.

Lyons’s testimony, she in fact misstates the testimony herself as creating a causal

link by repeatedly concluding, “Dr. Lyons pointed directly to the po-boy that Ms.

Landry consumed as being the inciting agent for her food poisoning.” In light of the

actual facts and testimony presented, her contention is simply untenable.

Q: There wasn’t any way to test anything she had eaten
that day, was there?

A: There was not.

....

Q: And do you recall, just based on the conversation –
because the only thing in the notes that she said is that she
had the shrimp po-boy and thought it might have been --

A: I didn’t even know what kind of po-boy it was, but she
did tell me she had a po-boy.

Q: Okay. Other than that, was there anything that would
lead you to be able to pinpoint where, more likely than not,
this Campylobacter infection came from?

A: There was not, no. And I mean, that’s typical. I
mentioned to you a number of different infectious
pathogens. In none of the cases could I actually
determine . . . I couldn’t relate it to anything specifically,
although I did look.

This court has held that, “[a]lthough a plaintiff need not scientifically

identify the infection-producing organism to recover in a food poisoning case, [s]he

must still prove causation by a preponderance of the evidence.” Burnett v. Essex Ins.

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Co., 00-809, p. 7 (La.App. 3 Cir. 11/2/00), 773 So.2d 786, 790.2 In the instant case,

Dr. Lyons was not only able to identify the presence of Campylobacter, but also

considered it to be the inciting agent of Ms. Landry’s illness. However, the

identification of the bacterium present in Ms. Landry’s system alone cannot establish

causation in the absence of more specific evidence suggesting that the

Campylobacter bacterium originated from Ms. Landry’s alleged consumption of the

sandwich.

Contrary to Ms. Landry’s assertion, Dr. Lyons’s testimony introduces

the unlikelihood that Ms. Landry’s consumption of the sandwich caused her to

contract the bacterium, and thus resulted in her illness. Although there was no way

to determine what Ms. Landry had eaten the day before, Dr. Lyons stated that in

cases of infectious diseases causing diarrhea such as this one, he calls the hospital’s

microbiologist to investigate whether there was an increased incidence of

Campylobacter in the community. In Ms. Landry’s case, it was determined that her

illness was not part of a larger picture of infections. When asked about the potential

sources of Campylobacter, Dr. Lyons relayed the following, ultimately concluding

that “[i]n none of the cases could [he] actually determine” where the bacterium came

from:

So I had [another patient] present with diarrhea that I
worked up, and it also turned out to be Campylobacter.
Same thing: There was not an increased incidence in the
community, as best as I could tell, and I could never
determine exactly where he got it. . . . That was kind of
the same case as Ms. Landry.

2
Ms. Landry misapplies the standard regarding causation. Her brief states, “Appellant
testified that a po-boy from Joey’s was the only food item she had consumed the day she contracted
her illness, making it reasonable to assume causation by a preponderance of the evidence with the
lack of another inciting agent.” As the most critical, and often most burdensome, element to be
proven before imposing liability, causation must be established by a preponderance of the evidence
rather than merely assumed based upon a reasonable belief.

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Ms. Landry correctly asserts in her brief that while Dr. Lyons stated

that he is unaware of the bacterium being transmitted from fish, he does not state

that it is an impossibility. Beyond this statement, however, she has failed to present

any evidence suggesting that fish or seafood can be a source of Campylobacter, or

to otherwise refute the only medical opinion establishing the absence of a causal link.

Though it remains uncontested and unfortunate that Ms. Landry contracted the

Campylobacter bacterium, which we accept to have caused her illness, nothing in

the record serves to provide an independent, causal link between her alleged

consumption of the po-boy sandwich and the presence of the bacterium. While her

own testimony suggests some correlation between the two events, the evidence

presented, on balance, does not create a genuine issue of material fact with respect

to establishing causation.

V.

CONCLUSION

We cannot say that Ms. Landry has presented sufficient evidence to

create any genuine issue of material fact regarding the deleteriousness of the food

allegedly purchased and consumed from Defendant’s food store, which in turn

caused her illness. Even if this court were so inclined to infer the deleteriousness of

the po-boy sandwich allegedly purchased and consumed by Ms. Landry, we find the

absence of evidence presented demonstrating any positive causal connection in her

favor mandates the granting of summary judgment in Defendant’s favor.

Based upon the foregoing, the judgment of the trial court is affirmed in

all respects. Costs of this appeal are assessed to Terese Landry.

AFFIRMED.

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