Sysco Food Services, Inc. v. Trapnell

• Decision Date: 22 June 1994
• Docket Number: No. D-3684,D-3684
• Citation: 890 S.W.2d 796
• Court: Texas Supreme Court
• Parties: , Prod.Liab.Rep. (CCH) P 13,943 SYSCO FOOD SERVICES, INC. and Sysco Corporation; Hoechst Celanese Corp. Specialty Chemical Group, F/K/A Virginia Chemicals, Inc., Globe Products Co., Inc., Lamb-Weston, Inc., Allied Corp., Univar Corp., Van Waters & Rogers, Inc., and McKesson Corp., Petitioners, v. Benjamin TRAPNELL, Individually and as Next Friend of Nicholas Trapnell, a Minor, Polly Ann Haugh, and John Hogan Interests, Inc. D/B/A First Foods Company, Inc., Respondents.

Page 796

890 S.W.2d 796

63 USLW 2064, Prod.Liab.Rep. (CCH) P 13,943

SYSCO FOOD SERVICES, INC. and Sysco Corporation; Hoechst

Celanese Corp. Specialty Chemical Group, F/K/A Virginia

Chemicals, Inc., Globe Products Co., Inc., Lamb-Weston, Inc., Allied Corp., Univar Corp., Van Waters & Rogers, Inc., and McKesson Corp., Petitioners, v. Benjamin TRAPNELL, Individually and as Next Friend of

Nicholas Trapnell, a Minor, Polly Ann Haugh, and

John Hogan Interests, Inc. D/B/A First

Foods Company, Inc., Respondents.

No. D-3684.

Supreme Court of Texas.

June 22, 1994.

Rehearing Overruled Feb. 16, 1995.

Ruth Greenfield Malinas, J. Michael Myers, David Stephenson, San Antonio, V. Elizabeth Ledbetter, Corpus Christi, William J. Collins, III, Benjamin N. Roeder, Michael C. Falick, Houston, Frank E. Weathered, John A. Smith, III, Corpus Christi, Aldean E. Kainz, Austin, Joy M. Soloway, Stephen C. Dillard, Houston, Roberta J. Hegland, Clay E. Coalson, Corpus Christi, Terriann Trostle, Houston, for petitioners.

Russell Manning, Corpus Christi, Randell A. Kocurek, Houston, for respondents.

GAMMAGE, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and HIGHTOWER, DOGGETT, CORNYN and SPECTOR, Justices, join.

I.

This case is a products liability death action. The defendants, manufacturers and suppliers of foods containing sulfites, obtained a summary judgment in the trial court. The court of appeals reversed in part and affirmed in part. 850 S.W.2d 529. We affirm.

II.

Susan Trapnell was a chronic asthmatic. She was allergic to sulfites, a food additive used to process and preserve food. Her reactions to sulfites ranged from "asthma attacks" to, in severe cases, "anaphylactic shock." After one particularly serious episode, Susan was referred to Dr. Ronald Simon, an expert in the diagnosis and treatment of sulfite sensitive persons. ¹ After testing Susan, Dr. Simon concluded that she was extremely sensitive to sulfites. Dr. Simon advised Susan to avoid certain foods which commonly contain sulfites. He counseled her that when she ate at restaurants, she should ask whether sulfites were in the foods she wished to eat. In case she accidentally ingested sulfites, Susan always carried a hypodermic syringe of epinephrine.

On August 5, 1984, Susan, her husband, Benjamin, and their son, Nicholas, went to the Officer's Club at the Corpus Christi Naval Air Station to dine at the buffet. Before going through the buffet line, Benjamin asked one of the cooks whether any sulfites had been used in the preparation of the fruit salad. The cook, Robert Mangohig, responded that no sulfites had been used, but offered to get Mr. Trapnell some fresh fruit from the kitchen. Mr. Trapnell declined, and the Trapnells went through the buffet line. Susan allegedly served herself fruit from the fresh fruit bowl, hash browns, apple pie filling, and other foods.

Within minutes after she began eating, Susan had a violent reaction. The Trapnells immediately tried to leave the Club and go to the hospital. Susan made it only to the Club's lobby before collapsing. Benjamin administered epinephrine from the emergency kit. Before E.M.S. arrived, Susan began having seizures. E.M.S. rushed Susan to the Naval Air Station Hospital, where she arrived with no pulse. At the hospital, emergency room personnel succeeded in bringing Susan's blood pressure back. For the next several days, Susan remained unresponsive to stimuli. Susan's brain activity ceased on August 9, and on August 10, the doctors pronounced her dead. No autopsy was performed.

In summary judgment evidence, experts stated that although sulfites can be ingested from many sources, including air pollution, in their opinion Susan died as a result of eating food containing sulfites. Specifically, they identified three foods that Susan had on her plate as potentially containing sulfites: potato whitener on the fruit salad, apple pie filling, and hash browns.

The sulfite manufacturers and other parties in the chain of distribution are as follows:

Potato Whitener:

Hoechst Celanese Corporation, Specialty Group (formerly known as Virginia Chemicals, Inc.), manufactured sodium metabisulfite and sold it to John Hogan Interests d/b/a First Foods Company, Inc. First Foods manufactured potato whitener from the sodium metabisulfite it acquired from Hoechst Celanese and sold it to Nordhaus. Nordhaus sold potato whitener to Sysco Food Services, Inc. of Sysco Corporation. Sysco sold potato whitener to the Officer's Club.

Hash Browns:

Allied Corporation manufactured and sold sulfites to Univar Corporation. Univar sold the sulfites to Lamb-Weston, Inc. Lamb-Weston processed hash browns and sold them to Sysco. Sysco sold the hash browns to the Officer's Club.

Apple Pie Filling:

Allied manufactured sulfites and sold them to McKesson Chemical Company. McKesson then sold sulfites to Zero Pack. Zero Pack added sulfites to apples during processing and sold them to Globe. Globe manufactured apple pie filling and sold it to Labatt Institutional Supply Company. Labatt sold apple pie filling to the Officer's Club.

III.

On May 22, 1986, the Trapnells brought suit against Sysco and other defendants in state district court, alleging negligence, Deceptive Trade Practices, strict liability, and breach of warranty. On December 22, 1986, the Trapnells filed suit against the United States Department of the Navy under the Federal Tort Claims Act ("F.T.C.A."), 28 U.S.C.A. §§ 1346(b), 2671 et seq. (West 1993; West 1965 & Supp.1994). The Trapnells claimed that the Navy was negligent in using sulfites and in failing to warn Susan of the sulfites in the food they prepared.

On March 30, 1989, the federal district court issued a stay order pending the conclusion of the state suit against the manufacturers and distributors. On June 16, 1989, upon the motion of the defendants, the state district court ordered an abatement in order for the defendants to try to intervene in federal court, have the federal court stay lifted, and have all the parties litigate all claims in federal court. In a September 26, 1989 order, the federal court denied the motion to intervene on the grounds that it did not have jurisdiction over the proposed intervenors. Relying on Finley v. United States, 490 U.S. 545, 555-56, 109 S.Ct. 2003, 2010-11, 104 L.Ed.2d 593 (1989), the federal court held that the Federal Tort Claims Act does not permit the assertion of pendent jurisdiction over additional parties as to which there is no independent basis for federal jurisdiction. It held that there was no independent basis for asserting federal jurisdiction over the proposed intervenors in this case because diversity jurisdiction requires that each defendant be a citizen of a different state from the plaintiffs, and one of the defendants (namely Sysco) did not meet this requirement. ²

At this point, the proceedings were at a standstill. The state trial court refused several motions to vacate its order of abatement, for reasons that are not clear from the record. The plaintiffs filed a petition for writ of mandamus in the court of appeals in which they complained of the trial court's January 5, 1990 refusal to lift its abatement order. Holding that the abatement order unconstitutionally deprived plaintiffs of a forum under the "open courts" clause of the Texas Constitution, ³ the court of appeals ordered the trial court to lift the abatement order. Trapnell v. Hunter, 785 S.W.2d 426, 429 (Tex.App.--Corpus Christi 1990, original proceeding) (Trapnell I) (opinion issued February 1, 1990).

On July 31, 1990, soon after the state court complied with the court of appeals' mandate and the case proceeded to trial, the trial court granted summary judgment as to one of the defendants, First Foods. First Foods' motion for summary judgment alleged that its product did not cause Susan Trapnell's death. During the appeal of the order granting First Foods' summary judgment, the federal court lifted its stay and proceeded to try the plaintiffs' F.T.C.A. claim against the Navy. ⁴ On September 14, 1990, the federal court, based on its finding that no potato whitener had been added to the fruit salad, held that the Navy was not liable and rendered judgment that the plaintiffs take nothing by their claims. On September 17, 1990, the state trial court granted First Foods' motion to sever all claims against it, including the cross-claims asserted by the other defendants, enabling the plaintiffs to immediately appeal the summary judgment. On April 25, 1991, the state court of appeals reversed First Foods' summary judgment because it concluded that the motion and response raised a fact issue regarding causation. Trapnell v. First Foods Co., 809 S.W.2d 606, 611 (Tex.App.--Corpus Christi 1991, writ denied) (Trapnell II). The court of appeals refused to consider First Foods' argument that the plaintiffs were collaterally estopped from relitigating the federal court's finding that potato whitener was not added to the fruit salad, on the grounds that collateral estoppel was not raised as a basis for summary judgment in the trial court. See Trapnell, 809 S.W.2d at 608.

Meanwhile, the trial court granted summary judgments in favor of all other defendants, who had asserted in their motions for summary judgment the grounds that (1) collateral estoppel barred relitigation of the federal court's finding that potato whitener was not in the fruit salad, as to the potato whitener defendants and (2) lack of causation as to the other defendants was proven as a matter of law. ⁵ The court of appeals reversed in part and affirmed in part. 850 S.W.2d 529, 532 (Trapnell III). We affirm the court of appeals.

IV.

The central issues are: (1) whether the summary judgment evidence on causation raises a fact issue so as to prevent summary judgment in favor of the hash brown and apple pie filling defendants, and (2) whether the federal court's finding that potato whitener was not in the fruit...