Sclafani v. Peter S. Cusimano, Inc., Docket No. 65543

• Decision Date: 06 February 1984
• Docket Number: Docket No. 65543
• Parties: Salvatore SCLAFANI and Marguerite A. Sclafani, his wife, Plaintiffs-Appellants, v. PETER S. CUSIMANO, INC., d/b/a Piero's Fine Foods, Defendant-Appellee. 130 Mich.App. 728, 344 N.W.2d 347
• Court: Court of Appeal of Michigan — District of US

Page 347

344 N.W.2d 347

Salvatore SCLAFANI and Marguerite A. Sclafani, his wife Plaintiffs-Appellants, v. PETER S. CUSIMANO, INC., d/b/a Piero's Fine Foods Defendant-Appellee.

Docket No. 65543.

130 Mich.App. 728, 344 N.W.2d 347

Court of Appeals of Michigan.

Submitted July 27, 1983.

Decided Dec. 5, 1983.

Released for Publication Feb. 6, 1984.

[130 MICHAPP 729] Martin, Bacon & Martin, P.C. (by Robert Patrick George), Mount Clemens, for plaintiffs-appellants.

Joselyn, Rowe, Jamieson, Grinnan, Callahan & Hayes, P.C. by James A. Callahan, Detroit, for defendant-appellee.

Before MAHER, P.J., and WAHLS, and LAMB, ^* JJ.

LAMB, Judge.

Plaintiffs instituted this lawsuit in the Wayne County Circuit Court, alleging that [130 MICHAPP 730] plaintiff Salvatore Sclafani ¹ contracted hepatitis from eating in defendant's restaurant. Following the trial of this cause, the jury returned a verdict of no cause of action. Plaintiffs now appeal as of right.

In the early morning of December 14, 1975, plaintiff consumed a piece of apple pie and several cups of coffee at defendant's restaurant. In early January, 1976, plaintiff developed fatigue, nausea, and severe abdominal pain. Plaintiff was originally diagnosed as suffering from type A hepatitis. Following further testing, and because plaintiff developed chronic hepatitis which is not a sequelae of hepatitis A, plaintiff was diagnosed as being afflicted with hepatitis non-A non-B.

At the time plaintiff ate in defendant's restaurant, defendant employed David Roop as a short-order cook. Roop experienced the onset of hepatitis symptoms on January 15, 1976, and was diagnosed as suffering from infectious hepatitis. No evidence was introduced as to the type of hepatitis from which Roop suffered.

David Roop testified that his employment with defendant did not include the preparation or handling of pies. Roop did testify, however, that, if requested by a waitress, he would occasionally place a piece of pie which was already on its serving plate into the oven to warm. Roop denied having any contact with the silverware used by the restaurant's patrons. Roop further stated that he had no responsibilities in the preparation or service of coffee. Peter Cusimano corroborated this part of Roop's testimony and also testified that Roop was not present at the time plaintiff ate in his restaurant.

[130 MICHAPP 731] Four doctors--Timothy Nostrant, Jorge Jamie Gumucio, Jane Polkowski, and Richard S. McCaughey--offered testimony concerning the nature and varieties of hepatitis and the likelihood that plaintiff's hepatitis was contracted from Roop while he was working in defendant's restaurant. All the medical witnesses agreed that there are three recognized classifications of viral hepatitis. ² Type A hepatitis is spread through human waste products. If a person with hepatitis A fails to wash his hands thoroughly after a bowel movement, that person may well spread the disease. Outbreaks of hepatitis A traceable to food handlers are well documented. Hepatitis A might also be spread through the sharing of a cigarette or kissing. Type B hepatitis is transmitted primarily through the blood or serum. Hepatitis B can also be spread by sharing "dirty needles", toothbrushes, razors, or through sexual intercourse. Little is known of hepatitis non-A non-B. Medical testimony offered at trial suggested that it could, in fact, encompass several viruses. ³ In the United States, hepatitis non-A non-B has been identified with blood or serum contact, and 90% of patients suffering from post-transfusion hepatitis suffer from type non-A non-B. ⁴

When plaintiff contracted his hepatitis, medical knowledge of the disease was even more primitive. Today, tests exist which can identify both hepatitis [130 MICHAPP 732] A and hepatitis B. Then, however, only a test to identify hepatitis B existed. The symptoms of hepatitis A and hepatitis non-A non-B are very similar, and many persons with hepatitis non-A non-B were originally diagnosed as suffering from hepatitis A, as was the case with plaintiff.

Drs. Gumucio, Polkowski, and McCaughey all testified that they did not believe plaintiff contracted his hepatitis from eating at defendant's restaurant. Each of these doctors stated that he or she was unaware of even one reported instance in the United States in which hepatitis non-A non-B was reported as being spread through foodstuffs. ⁵ While each of these doctors expressed skepticism that plaintiff contracted his hepatitis from defendant's restaurant, none of them would completely foreclose this possibility because of the absence of extensive medical knowledge of hepatitis non-A non-B.

In contrast, Dr. Nostrant, plaintiff's expert, stated that it was "highly probable" that plaintiff contracted the disease from Roop after eating in defendant's restaurant. Dr. Nostrant, without reservation, stated that hepatitis non-A non-B could be transmitted by consuming food handled by somebody who suffers from this variety of hepatitis. Dr. Nostrant initially testified that, if Roop suffered from hepatitis A, plaintiff's type non-A non-B hepatitis would not be related to Roop. Dr. [130 MICHAPP 733] Nostrant immediately modified this view, however, and said that it would be "highly unlikely" that Roop's and plaintiff's hepatitis were related. After Roop was diagnosed in mid-January, 1976, as suffering from infectious hepatitis, the Wayne County Health Department contacted the local media to alert the public to the possible danger for those who had eaten in defendant's restaurant between January 1 through January 19, 1976, during the specific hours when Roop was in the restaurant. According to Dr. Polkowski, the Wayne County Health Department subsequently inoculated 1,172 persons against hepatitis A. ⁶ In addition, Dr. Polkowski discovered that three individuals who were diagnosed as having viral hepatitis in the period of December, 1975, through February, 1976, claimed to have eaten in defendant's restaurant. Only one of these three, Julie Underwood, was ever identified and located.

Dr. Polkowski further testified that, if Roop had hepatitis A, he would have been communicable only for two weeks before the onset of symptoms until two weeks after the onset of symptoms. Apparently, Roop's last day as a cook in defendant's restaurant came on January 19, 1976, and this is why the Wayne County Health Department was only concerned about people who had eaten in the restaurant through this date.

Julie Underwood was deposed. She testified that she had eaten in defendant's restaurant in either [130 MICHAPP 734] late November or early December, 1975. She began to experience fatigue, nausea, and abdominal pain in mid-December, 1975, and sought medical treatment. Underwood had no personal knowledge as to what malady she suffered from at this time. She indicated that she had been told that she suffered from "infectious hepatitis", ⁷ although she had no recollection of being informed of a particular type of hepatitis.

Defendant moved in limine to exclude Underwood's testimony, arguing, inter alia, that this evidence was irrelevant and that its prejudicial impact substantially outweighed its probative value. Following arguments, the trial court ruled:

"Okay, this is one of those areas that is of difficulty to the Court. We have had a reasonable amount of time to consider it. Counsel has been, has addressed this early in the trial so the Court was aware that it was coming forward and the Court is giving considerable thought to it, because I, I, at least, I hope to appreciate both party's positions to the case.

"I am going to--not--I am going to refuse to permit her to testify on this issue, because, number one, I think that the testimony that she contracted hepatitis in late November or early December, whatever she indicated she would testify to, is extremely prejudicial, and in this case, in this Court's opinion, so far outweighs its probative value that its admission would result in an injustice. That isn't to say that it doesn't have some probative value. But I do not feel that what I have heard so far would indicate that its weight and reliability is so valuable that it would overcome the concern that I have that the Jury may well say that since she got it there, he must have got it there, and that is not what the evidence is for. The evidence is not offered--I'm sure the plaintiff is attempting to offer--the fact that she acquired it there means that he did. [130 MICHAPP 735] The circumstantial evidence would only point to the fact that there is contamination in the restaurant. Whether or not he got it is a circumstantial evidence, a circumstance that the Jury would have to conclude.

"But I am concerned that the steps would go from one to the other, and that is that the fact that she got it there would be so influencing to the Jury that they may not put it in the proper perspective."

The sole claim which plaintiffs raise on appeal is that the trial court erred in refusing to allow the admission of Underwood's testimony. The basis upon which the trial court excluded this testimony was that its probative value was "substantially outweighed by the danger of unfair prejudice". MRE 403. Although defendant argued below that the testimony was irrelevant, on appeal it concedes that the testimony had some minimal probative value.

"Unfair prejudice" does not mean damaging". Bradbury v. Ford Motor Co., 123 Mich.App. 179, 185, 333 N.W.2d 214 (1983). Any relevant testimony will be damaging to some extent. We believe that the notion of "unfair prejudice" encompasses two concepts. First, the idea of prejudice denotes a situation in which there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury. In other words, where a probability exists that evidence which is minimally damaging in logic will be weighed by the jurors substantially out of proportion to its logically damaging effect, a situation...