Trapnell v. Sysco Food Services, Inc.

• Decision Date: 17 November 1992
• Docket Number: No. 13-91-367-CV,13-91-367-CV
• Court: Texas Court of Appeals
• Parties: Prod.Liab.Rep. (CCH) P 13,485 Benjamin TRAPNELL, John Hogan Interests, Inc. d/b/a First Foods Company, Inc., et al. Appellants, v. SYSCO FOOD SERVICES, INC. and Hoechst Celanese Corporation Specialty Chemicals Group f/k/a Virginia Chemicals, Inc., et al. Appellees.

Page 529

850 S.W.2d 529

Prod.Liab.Rep. (CCH) P 13,485

Benjamin TRAPNELL, John Hogan Interests, Inc. d/b/a First Foods Company, Inc., et al. Appellants, v. SYSCO FOOD SERVICES, INC. and Hoechst Celanese Corporation Specialty Chemicals Group f/k/a Virginia Chemicals, Inc., et al. Appellees.

No. 13-91-367-CV.

Court of Appeals of Texas Corpus Christi.

Nov. 17, 1992.

Opinion Granting Motion for Rehearing, Feb. 25, 1993.

Rehearing Overruled April 1, 1993.

Randell A. Kocurek, Brown, Sims, Wise & White, Houston, Russell Manning, Valerie Fogleman, Gary, Thomasson, Hall & Marks, Corpus Christi, for appellants.

J. Michael Myers, Ruth Greenfield Malinas, Ball & Weed, San Antonio, William J. Collins, III, Michael C. Falick, Benjamin Roeder, Kirkendall & Collins, Terriann Trostle, Stephen C. Dillard, William J. Boyce, Fulbright & Jaworski, Houston, Aldean E. Kainz, Small, Craig & Werkenthin, P.C., Austin, John A. Smith, III, Frank E. Weathered, Dunn, Cason & Weathered, V. Elizabeth Ledbetter, Redford, Wray & Woolsey, Roberta J. Hegland, Clay E. Coalson, Meredith, Donnell & Abernethy, Corpus Christi, for appellees.

Before GILBERTO HINOJOSA, KENNEDY and SEERDEN, JJ.

OPINION

GILBERTO HINOJOSA, Justice.

INTRODUCTION

In this products liability death action, the plaintiffs, Benjamin Trapnell, Nicholas Trapnell, a minor, and Polly Ann Haugh seek reversal of consolidated summary judgments granted against them in the 94th District Court in Nueces County. The defendants are the manufacturers and distributors of sulfited foods which allegedly caused Susan Trapnell's death. ¹

The plaintiffs' petition alleges Susan Trapnell died from an allergic reaction to sulfites in foods she ate at the Corpus Christi Naval Air Station Officers' Club. The plaintiffs' theories of recovery included negligence, gross negligence, breach of warranty, strict liability, civil conspiracy, Deceptive Trade Practices, and loss of consortium. The defendants acquired summary judgments against the plaintiffs on several grounds including that the action was barred by collateral estoppel, the statute of limitations, the government contractor defense, and that the summary judgment evidence established as a matter of law that each product did not cause the death. We affirm in part and reverse and remand in part.

I. FACTS

Susan Trapnell was a chronic asthmatic. She was allergic to sulfites, a food additive used as a preservative and processing aid. Her reaction to sulfites was manifested as an "asthma attack" or in severe cases, an "anaphylactic shock." Initially, she would feel tightness in her chest. This tightness would progress into difficulty breathing, similar to having an elastic band wrapped tightly around one's chest. As the tightness increased, her ability to draw a breath would become severely impaired.

This reaction could be reversed or rendered less severe by injections of epinephrine, a medication related to adrenaline, or other medication. Epinephrine could either be injected into a muscle or directly into the vein. These injections rapidly entered her system and relaxed her lung muscles which contracted during an asthma attack. On several occasions she had been hospitalized because of breathing problems.

Sulfites come in two forms, free sulfites and bound sulfites. When eaten by a sulfite sensitive person, free sulfites rapidly react in the mouth and stomach to form sulfur dioxide. While eating, varying amounts of sulfur dioxide are invariably inhaled. The sulfur dioxide reacts inside the lungs, causing rapid contraction of lung muscles and severe impairment of breathing ability.

Bound sulfites react more slowly after ingestion. When they reach the small intestine, bound sulfites enter the entire system, including parts of the lung which are not usually reached by inhalation of sulfur dioxide. The patient's reaction accordingly is systemic; less intense, but much more powerful and long-lasting than mere inhalation of sulfur dioxide into the upper portion of the lung.

After one particularly serious asthmatic episode, Susan Trapnell was referred to Dr. Ronald Simon, a recognized expert in diagnosis and testing of sulfite sensitive individuals. Dr. Simon tested Susan and discovered that she reacted strongly to a ten milligram capsule of potassium metabisulfite. ² Her reaction to this dose was so strong that he opined that had he not been present to administer epinephrine and to help pull her through, her reaction would have been life-threatening.

He counseled her to avoid certain foods which were known to contain sulfites. When eating at restaurants, he directed her to ask whether preservatives containing sulfites were on the foods she wished to eat. At all times she carried an "epikit," containing a hypodermic syringe of epinephrine, to protect her against accidental sulfite ingestion.

On August 5, 1984, Susan, Benjamin, and Nicholas went to the Officer's Club at the Corpus Christi Naval Air Station to dine at the buffet. Benjamin asked one of the cooks present whether any sulfite products had been used in the preparation of the food. After the cook responded that no sulfites had been used, the Trapnells went through the buffet line. Susan allegedly served herself with fruit from the fresh fruit bowl, apple pie filling, hash browns, and other foods not suspected of containing sulfites.

Minutes after consuming some of these foods, Susan began to react strongly. Her husband asked her if they needed to go to the hospital, and she said yes. She made it as far as the lobby before collapsing. Benjamin immediately administered .5 cc of epinephrine intramuscularly from the epikit. EMS was summoned. Before they arrived seizures began. Her breathing difficulties increased. She vomited, blocking her throat. In the five to ten minute period before the ambulance arrived, Susan was unresponsive. She exhibited no breathing or pulse.

When the EMS arrived, they could not intubate her because of the vomit blocking her lungs. Susan was rushed to the Naval Air Station Hospital. She arrived with no pulse.

Heroic efforts in the emergency room lasting one hour and forty minutes brought Susan's blood pressure back, but nothing more. She was completely unresponsive to any stimuli including lights in her eyes and severe pain. Only a trace of brain activity on the EEG kept Susan from being declared brain dead at that time. This activity disappeared on August 9, four days after eating at the Officer's Club. She was pronounced brain dead on the 10th.

Three products on Susan's plate have been identified as containing sulfites: hash browns, apple pie filling, and potato white mixed with the fruit salad. Relatively small levels of bound sulfites possibly were present in the hash browns, and moderate levels possibly were present in the apple pie filling. However, potato white, which may have been used by the Officer's Club to preserve fresh fruit in the fruit bowl, was composed of free sulfites. An average serving of fruit preserved with potato white would contain a dose of sulfites which could easily overwhelm and kill a sulfite sensitive person such as Susan Trapnell.

It is disputed whether potato white was used on the fruit she ate. The cooks testified in deposition that they did not use potato white on the fruit. However, they also stated that they used potato white to preserve fruit salad if any was left over after a party. There was a party on the Base the night before Susan ate at the Officer's Club. Dr. Simon testified in a deposition that the speed and intensity of Susan Trapnell's reaction implicated potato white. The relatively low levels of sulfites in other products also implicated potato white. No direct evidence linked potato white to Susan Trapnell's death, but strong circumstantial evidence regarding the manner of her death raises the inference that free sulfites in the potato white was a cause.

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

Potato White:

Hoechst Celanese Corporation, Specialty Chemical 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 White from the sodium metabisulfite it acquired from Hoechst Celanese and sold it to Nordhaus.

Nordhaus sold Potato White to Sysco Food Services, Inc. of Sysco Corporation.

Sysco sold Potato White to the Officers' Club.

Apple Pie Filling:

Allied Corporation 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.

Hash Browns:

Allied manufactured and sold sulfites to Univar Corporation.

Univar sold the sulfites to Lamb-Weston, Inc.

Lamb-Weston manufactured hash browns and sold them to Sysco.

Sysco sold the hash browns to the Officer's Club.

These defendants will be grouped and referred to by product wherever possible.

II. PROCEDURAL HISTORY

Suit was filed in State District Court on May 22, 1986, against Sysco, Labatt, and other defendants who are no longer parties. ³ The other parties were joined as discovery disclosed their involvement. Because of sovereign immunity, an action was filed against the Navy in United States District Court for the Southern District of Texas on December 22, 1986, under the Federal Tort Claims Act (FTCA). On March 30, 1989, the federal court, cognizant of the state action which was filed first, entered an order staying proceedings until the state action became final.

A priority trial setting was obtained in State District Court for October 16, 1989. The defendants, apparently recognizing certain advantages in trying the case in federal court, petitioned and received from the state court an order abating the state...