Winstead v. Ed's Live Catfish & Seafood, Inc.
| Decision Date | 14 November 1989 |
| Docket Number | No. CA,CA |
| Citation | 554 So.2d 1237 |
| Parties | William WINSTEAD v. ED'S LIVE CATFISH & SEAFOOD, INC., Edward D. Gilliam and Jean Arnold Gilliam, d/b/a Ed's Live Catfish & Seafood, Wilson's Oysters, Inc., the Louisiana Department of Health & Human Resources, the Louisiana Department of Wildlife and Fisheries, Paul Fitch, Raymond Lovell, Nelson Lirette, Charles Lirette, Morris Scott, James Daisy, C.J. Scott, Alex Punch, Curtis Verret, Jr., Lloyd Gates, Earl Brown, Leray Billiot, Roosevelt Falgout, Junios Verret, Roy Billiot, Paul Dion, Donald Dehart, Wilson Voisin, Sr. 88 1589. |
| Court | Court of Appeal of Louisiana — District of US |
T. Mack Brabham, McComb, Miss., for plaintiff-appellee William Winstead.
Jack Harang, Metairie, Richard Brazan, Baton Rouge, La., for defendant-appellee Louisiana Dept. of Wildlife and Fisheries.
Craig Nelson, New Orleans, for defendant-appellant Louisiana Department of Health and Human Resources.
Carey Gugliemo, Baton Rouge, for defendant-appellee Ed's Live Catfish and Seafood, Edward Gilliam and Jean Arnold Gilliam, Aetna Cas. & Sur. Co.
Before LOTTINGER, CRAIN and LeBLANC, JJ.
This is an action ex delicto brought by William Winstead against numerous defendants arising from Mr. Winstead's consumption of approximately two dozen raw oysters and his subsequent illness. Due to various settlements and dismissals, the Louisiana Department of Health and Human Resources (DHHR) was the only remaining defendant at the trial of this matter.
The sole issue at trial was whether the DHHR had a duty to warn the plaintiff that vibrio vulnificus, a naturally occurring bacteria normally present in oysters, could cause serious illness or death in persons with certain underlying conditions if they consume raw oysters. The trial court held the DHHR liable for failing to warn the plaintiff of this danger inherent in eating raw oysters. DHHR appeals from this judgment assigning seven specifications of error.
On August 12, 1983, William Winstead, a thirty-five year old Texas resident visiting Mississippi, ate approximately two dozen raw oysters at a lounge in Magnolia, Mississippi. The oysters had been harvested in Louisiana coastal waters and purchased by the lounge owner from a Baton Rouge, Louisiana seafood dealer some seven to ten days prior to being ingested by the plaintiff.
Mr. Winstead became ill within eight hours after eating the oysters and his condition worsened such that he was gravely ill and near death when he was hospitalized four days later. He remained in the intensive care unit for approximately 10 days and spent a total of 30 days in the hospital. He has subsequently almost completely recovered and at present suffers only a mild restrictive defect in lung capacity as a result of his illness.
The illness that almost killed Mr. Winstead is known as septicemia and is caused when a toxin-producing bacteria invades the bloodstream. The bacteria which caused Mr. Winstead's septicemia is called vibrio vulnificus.
This bacteria is a naturally occurring, free living marine bacteria, and it is found in seawater of the appropriate salinity and temperature worldwide. It proliferates during the warmer months of the year and decreases in number during the cooler months. Oysters, since they constantly filter water, harbor vibrio vulnificus whenever it is present in the water in which they live. Only by eating raw oysters, or other raw or uncooked seafood, or by swallowing seawater, can the bacteria get into a person's gastro-intestinal tract and then into the bloodstream. Like most other bacteria, any vibrio vulnificus present would be killed by cooking the oyster or other seafood.
Vibrio vulnificus is an opportunistic bacteria. It generally does not harm persons with normal immune system responses. In a normal healthy person, acid in the stomach together with the liver and kidney prevent this bacteria from reaching the bloodstream. However, persons with a weakened immune system, i.e. those with liver disease, kidney disease, peptic ulcers, cancer, heavy drinkers (alcohol induced cirrhosis), those with chronic indigestion who take large doses of antacids, and those who take immuno-suppressive drugs (steroids, chemotherapy), are more succeptible than the average person to becoming infected with vibrio vulnificus if they eat raw oysters containing the bacteria.
Although vibrio vulnificus is found naturally in a substantial percentage of oysters (55% to 70%), it is not present in all oysters. The concentration of the bacteria naturally occurring in oysters varies greatly depending on water temperature and salinity. Chilling the oysters to near freezing substantially reduces the concentration of the bacteria, while storing them at environmental temperatures can substantially increase the concentration. Some strains of vibrio vulnificus are more virulent than others, and some do not produce any toxins at all.
The chances of developing septicemia from eating raw oysters depends on the number of oysters consumed, the concentration of vibrio vulnificus in those oysters, the virulence of the strain of bacteria present, and the condition or strength of the body's immune system. However, once the bacteria gets into a person's bloodstream and septicemia develops, the mortality rate is 50% to 70%.
The plaintiff, William Winstead, had a liver disfunction at the time he ate the oysters at issue although he did not know it. He had also eaten raw oysters several times before this incident and had never had any problems.
In 1983, the State of Louisiana, and the DHHR specifically, knew about vibrio vulnificus and the risks it posed. The DHHR knew the basic at risk groups and that although relatively few people develop septicemia from this bacteria, among those who did there was a high mortality rate. Before August, 1983, there had been 14 cases of septicemia caused by vibrio vulnificus diagnosed in Louisiana; and of those, ten were fatal.
In August of 1982, the DHHR published the Monthly Morbidity Report and sent a copy to every physician in Louisiana, the Center for Disease Control (CDC) in Atlanta, Georgia, and the health department of several neighboring states, including Mississippi. This report described the bacteria vibrio vulnificus, the effect it has on humans, the underlying risk factors and risk groups, the primary method of infection, the high mortality rate associated with the infection, how to identify the septicemic condition and the appropriate medical response. It advised that physicians should warn their patients with any of the underlying risk factors not to eat raw seafood.
The trial court held that the State of Louisiana, through the DHHR, had a duty to warn the plaintiff of the risk of contracting vibrio vulnificus induced septicemia from eating raw oysters, and that the state had breached its duty. The DHHR appeals this ruling and assigns the following specifications of error:
I. The trial court erred in issuing a second judgment reversing its ruling on the retroactivity of Revised Statute 9:2798.1, two months post trial.
II. It was error for the trial court to create a duty on the DHHR to warn when no such duty exists in Louisiana Statutory or case law.
III. It was error for the trial court to conclude any act or omission of DHHR was a cause in fact of plaintiff's injury.
IV. It was error for the trial court to conclude the DHHR did not warn the public about the vibrio vulnificus bacteria and its relationship to raw oyster consumption.
V. It was error for the trial court to deny DHHR's motion for a jury trial on the issue of co-defendant's negligence and then fail to decide if any co-defendant was guilty of negligence which contributed to plaintiff's injuries.
VI. It was error to allow Dr. Jeffrey Johnston to give any opinions regarding the warning issue in this case.
VII. The trial court erred in assessing damages for plaintiff in the amount of $295,000.
Prior to the trial of this matter, the DHHR filed a motion for summary judgment. One of the several grounds asserted by the DHHR as a basis for summary judgment in its favor was the argument that La.R.S. 9:2798.1, which was enacted in 1985, applies retroactively and precludes a finding of liability against it.
La.R.S. 9:2798.1 provides:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policy-making or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
The DHHR contends that the trial court first held this statute to be applicable, and then, after the trial, amended its ruling to hold that the statute was not applicable, and that this was a...
To continue reading
Request your trial
-
Batton v. Georgia Gulf, Civil Action Nos. 02-353-D-M3, 02-354-D-M3, 02-379-D-M3, 02-565-D-M3, 02-943-D-M3 (M.D. La. 3/27/2003)
...several Louisiana state courts have imposed a duty on LDHH to warn the public of health dangers. In Winstead v. Ed's Live Catfish & Seafood, Inc., 554 So.2d 1237 (La. App. 1 Cir. 1989), LDHH was sued by a person who ate raw oysters and became ill due the presence of vibrio vulnificus, a nat......
-
Batton v. Georgia Gulf
...several Louisiana state courts have imposed a duty on LDHH to warn the public of health dangers. In Winstead v. Ed's Live Catfish & Seafood, Inc., 554 So.2d 1237 (La.App. 1 Cir.1989), LDHH was sued by a person who ate raw oysters and became ill due the presence of vibrio vulnificus, a natur......
-
St. Paul Fire & Marine Ins. Co. v. Smith
...was implicit in a statute." Pierce v. Hobart Corp., 939 F.2d 1305, 1309 (5th Cir.1991); see also Winstead v. Ed's Live Catfish & Seafood, Inc., 554 So.2d 1237, 1240-42 (La.App. 1st Cir.1989), writ denied, 558 So.2d 570 (La.1990).20 Official Comment (c) to LSA-C.C. Art. 6 cites Ardoin, supra......
-
Simeon v. Doe
...where the presumption was rebutted by evidence that a warning would not have been heeded. In Winstead v. Ed's Live Catfish & Seafood, Inc., 554 So.2d 1237 (La.App. 1st Cir.1989), writ denied, 558 So.2d 570 (La.1990), a similar oyster case, plaintiff was unaware he had a preexisting liver di......