BMLA, Inc. v. Jordan
| Decision Date | 18 November 2021 |
| Docket Number | 01-19-00568-CV |
| Citation | 650 S.W.3d 564 |
| Parties | BMLA, INC. d/b/a Murphy's Deli, Appellant v. Keziah JORDAN, Appellee |
| Court | Texas Court of Appeals |
650 S.W.3d 564
BMLA, INC. d/b/a Murphy's Deli, Appellant
v.
Keziah JORDAN, Appellee
NO. 01-19-00568-CV
Court of Appeals of Texas, Houston (1st Dist.).
Opinion issued November 18, 2021
Rehearing Denied April 21, 2022
Lance Olinde, Jr., Ramey, Chandler, Quinn & Zito, P.C., 750 Bering, Ste. 600, Houston, Texas 77057, for Appellant.
Kiernan McAlpine, Daspit Law Firm, 440 Louisiana St. Ste. 1400, Houston, Texas 77002, for Appellee.
Panel consists of Chief Justice Radack and Justices Goodman and Farris.
April L. Farris, Justice
Plaintiff Keziah Jordan sustained serious injuries when she collapsed onto a hard countertop in a doctor's office after experiencing severe gastric distress. Jordan sued Defendant BMLA, Inc. doing business as Murphy's Deli ("Murphy's Deli") on the theory that a kolache—sold by Murphy's Deli on medical center grounds and consumed by Jordan less than an hour before she became ill—caused her injury. A jury found that Murphy's Deli breached the implied warranty of fitness for a particular purpose and awarded Jordan a total of $400,000 in damages. The trial court entered judgment on the jury verdict.
On appeal, Murphy's Deli contends that (1) Jordan did not present legally or factually sufficient expert medical testimony that her illness was caused by consuming the kolache purchased from Murphy's Deli; and (2) Jordan did not present evidence that she had notified Murphy's Deli that a breach of warranty had occurred, as required to recover for breach of an implied warranty of fitness for a particular purpose. We agree with Murphy's Deli that the evidence was legally insufficient to
sustain the verdict, and we reverse and remand for a new trial.
Background
On Monday, February 16, 2015, Keziah Jordan had a morning appointment scheduled with her cardiologist in the Texas Medical Center in Houston. Because of the tests that were to be performed, her cardiologist required her to fast from midnight until the time of her appointment. Prior to fasting, Jordan and her husband ate dinner on Saturday night and breakfast on Sunday morning. Neither of them became sick after eating these meals. On Sunday night, Jordan prepared baked ziti for dinner. Jordan, her husband, and her son all ate the same meal for dinner, and none of them became sick that evening. The baked ziti was the last meal Jordan had before her cardiologist appointment on Monday morning.
Jordan completed her tests and lab work around 9:00 or 9:30 a.m., but her cardiologist was not yet present. Her doctor's receptionist told her that it was alright if she got something to eat, so Jordan went to Murphy's Deli located on the first floor of the building. Jordan ordered a sausage and cheese kolache and a kiwi strawberry Snapple to drink. The kolache was in a glass display case. Jordan took the kolache and the Snapple back upstairs to her doctor's office to eat in the waiting room. Jordan testified that the kolache "tasted a little off," but she ate all of it.
Less than an hour later, Jordan had "really bad stomach cramps" and started to feel nauseated. She had at least three or four episodes of diarrhea, and her stomach "was continually hurting." She checked with the receptionist several times to see if her cardiologist had arrived. The last time she checked with the receptionist, Jordan fainted. As she fell, her face hit the receptionist's desk, which was a granite or stone countertop. Jordan was taken to the emergency room. Jordan had several broken teeth and a broken jaw, requiring multiple dental procedures and surgeries to address her injuries. At the time of trial, she still experienced headaches and neck pain related to her injuries.
Dr. Syed Hasan, an internal medicine physician, testified as Jordan's causation witness. He examined Jordan after she was taken to the emergency room. According to Dr. Hasan, Jordan presented with complaints including diarrhea, fainting, and an injured lip and teeth. Dr. Hasan estimated that the cause of Jordan's diarrhea—which caused Jordan to become dehydrated, triggering the fainting episode—was viral gastroenteritis.
Dr. Hasan did not conduct any testing to determine that Jordan had gastroenteritis but instead based his diagnosis on Jordan's presenting symptoms. Dr. Hasan based his diagnosis on the fact that Jordan did not have a fever; her white blood cell count was mildly elevated; and she had symptoms that included diarrhea, abdominal cramps, and nausea. He agreed that food is the "typical source of gastroenteritis." He did not make a specific determination that his diagnosis of gastroenteritis "came about as a result of Ms. Jordan consuming food." He did note in his records that Jordan told him, "I ate a dubious-tasting kolache."
When asked about the length of time it takes a person to contract viral gastroenteritis due to food consumption, Dr. Hasan stated, "It can be anywhere from—if it appears toxic, it can be within an hour to six hours or it can be as long as 12, 14, 48 hours for incubation." Dr. Hasan testified that he could not make an "absolute determination" of what caused Jordan's symptoms, which is why he wrote "likely viral gastroenteritis" in Jordan's medical records. Dr. Hasan testified that bacterial
gastroenteritis—such as that caused by E. coli, salmonella, or shigella—also occurs, but viral gastroenteritis—such as that caused by norovirus or rotavirus—is far more common. He testified that patients with bacterial gastroenteritis typically have a fever or bloody diarrhea, but Jordan did not have either of these symptoms. Dr. Hasan testified that, to a reasonable degree of medical probability, Jordan's fainting, nausea, and diarrhea were caused by gastroenteritis and not her underlying heart condition.
Nisha Virani testified as the corporate representative of BMLA,1 which owned this particular Murphy's Deli franchise. Virani was in charge of food processes and safety and was present at this location "most of the time," but she was not present on the morning Jordan purchased the kolache. She testified that BMLA had never received any complaints concerning the food. Virani testified concerning the routine that Murphy's Deli employees followed when handling food, which involved washing hands and wearing gloves every time food was handled.
Virani also testified that Murphy's Deli receives kolaches that have been prepared by a third party, and she described how Murphy's Deli handles the kolaches that it receives. Upon receiving the kolaches, employees store them in a freezer with a notation of the date of receipt and the expiration date. The night before a kolache is to be set out for sale, an employee removes the kolache from the freezer, wraps it in saran wrap, and places it in a refrigerator. The next day, the kolache is placed in a temperature-controlled unit for sale. If a customer purchases a kolache, an employee microwaves the kolache for approximately thirty seconds and either places it on a plate or wraps it up in a to-go bag. If a kolache is not sold, an employee puts it back in the refrigerator in preparation for sale the next day, except on Fridays, when all unsold items are discarded. Virani testified that the store's freezers and refrigerators are inspected by the City of Houston every six months and by Murphy's Deli every month. She stated that there were no issues with the freezers and refrigerators around the time of this incident.
Murphy's Deli also presented deposition testimony from Richard Stier, a food scientist specializing in food safety, sanitation, and food processing. He reviewed the depositions of Virani, Jordan, and the owner of the distribution company that provided the kolache to Murphy's Deli, as well as Jordan's medical records. Based on Virani's deposition testimony, Stier testified that Murphy's Deli received the kolaches frozen, kept them in the freezer until the night before they were placed out for sale when they would be moved to a refrigerator, and were then moved to a refrigerated display cabinet on the day of sale. Again based on Virani's deposition testimony, Stier testified that kolaches were handled at all times by employees wearing gloves "so there is no human contact directly with the kolache from receipt, you know, to service with the customer." Stier testified that, for contamination to occur, "there would have to be a break in the cold chain at some point in time," but he had seen no evidence of a break in the cold chain, "no evidence of temperature abuse of the product," and no evidence of mishandling resulting in cross-contamination. He did not see any "evidence to support that this product, this particular kolache, could have become tainted."
Stier testified that he is not a doctor, and he did not dispute Dr. Hasan's diagnosis. He agreed that gastroenteritis "is a common symptom of most foodborne illnesses," that viral gastroenteritis "is a form of food poisoning," and that a kolache that causes food poisoning is a "defective" kolache. He testified, however, that based on Dr. Hasan's diagnosis of viral gastroenteritis, "there is no way that the kolache could have caused the illness." He also agreed that it would be important to know what Jordan had eaten "10, 12, 24, 36 hours before she had this incident, or who she was exposed to." He stated that it would also be important to know whether people who ate the same food that she did the previous day were affected by food poisoning. He agreed that it was "pretty important" that Jordan's family members ate the same food she did on Sunday night but none of them had food poisoning. He testified, however, that that does "[n]ot necessarily" rule out the Sunday night dinner as the cause of her food poisoning because "[p]eople have different sensitivities to different things."
Stier also testified that a staphylococcus aureus infection could develop in as short as thirty minutes. He agreed that experiencing gastroenteritis symptoms within thirty minutes after consuming contaminated...
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