Foster v. Legal Sea Foods, Inc., and Great Eastern Mussel Farms, Inc., 2008 U.S. Distr. LEXIS 57117 (July 25, 2008).

Timothy M. Mulvaney, J.D.

The United States District Court for the District of Maryland dismissed a lawsuit filed by a couple seeking compensatory and punitive damages as a result of their claim that they contracted the Hepatitis A Virus (HAV) from eating raw or undercooked mussels at a Baltimore restaurant.

Background
On February 7, 2002, the plaintiffs, Ryan and wife Juliet Foster, dined at a restaurant incorporated as Legal Sea Foods, Inc. (Legal). The couple ordered steamed mussels, but after eating several of the mussels, realized that some were still closed. Mussels have a ligament that joins the two shells together, and this ligament contracts when properly heated, causing the shells to open. The Fosters advised the Legal waitress, who took the mussels away and later returned with what appeared to be the same batch, but cooked and, thus, opened.1

On March 12, 2002, Ryan developed severe flu-like symptoms and an emergency room physician ultimately diagnosed him with acute HAV.2 HAV is a temporary but often violent disease of the liver contracted by eating food or drinking water that is contaminated by human waste, with an incubation period of approximately two to seven weeks. The physician referred Ryan to a Dr. Joseph Galati for consultation. On April 4, 2002, Juliet developed similar symptoms and an emergency room physician diagnosed her with the milder second-degree HAV.3

The Fosters initiated this litigation by filing claims of negligence, strict liability and breach of warranty against Great Eastern Mussel Farms, Inc. (GEMF) and Legal. Plaintiffs alleged that GEMF sold Legal mussels that contained HAV due to their harvesting in polluted waters.4 Further, plaintiffs alleged that Legal negligently failed to take proper safety precautions prior to serving these mussels.5

Plaintiffs offered an expert report by Dr. Galati. After reviewing Ryan’s medical history and analyzing his behavior, Dr. Galati concluded that, “besides Legal’s mussels, ‘there [were] no other obvious risk factors’” for acquiring HAV, and the mussels therefore were more likely than not the source of Ryan’s contraction.6

Plaintiffs also offered an expert report by a Mr. Roy Costa, a sanitarian, who concluded that HAV survived Legal’s “ineffective steaming” of the mussels served to the Fosters.7 Defendant’s expert, Dr. Robert Price, contradicted this assertion, stating that the steaming process “may or may not inactivate HAV.”8

Mr. Costa also asserted that GEMF utilized seawater from a harbor that was most likely contaminated by “overboard dumping of sewage and ensuing pollution,” and from areas that were already closed to shellfishing due to pollution.9 GEMF denied ever using water from areas closed to shellfishing, as evidenced by its harvesting tag,10 and its expert disputed Mr. Costa’s claim that shellfish can be contaminated with HAV from waters approved for shellfishing.11

Further, Mr. Costa cited to 1993-1997 national data of the Center for Disease Control and Prevention (CDC), two published reports from 1984 and 2004, and his own 1990-2002 research in an effort to support his claim that “there is a well-established link”between shellfish and HAV.12 Dr. Price’s report examined more recent CDC data from 1990-2001, which explained that “food was the source of the contamination in just one percent of the 286,881 acute cases of HAV reported to the CDC,” none of which were from shellfish or mussels.13

The defendants filed a motion with the court seeking to bar the testimony of plaintiffs’ experts, Dr. Galati and Mr. Costa. Specifically, the defendants sought an order to exclude from use at trial the following opinions due to their unreliability: Dr. Galati’s conclusions that Ryan likely contracted HAV from Legal’s mussels and that Juliet likely contracted HAV from either Ryan or Legal’s mussels, and Mr. Costa’s conclusions that the HAV was caused by GEMF’s use of polluted seawater to cleanse and prepare the mussels. The defendants further asked the court to grant summary judgment in its favor if it excluded this expert testimony, alleging that plaintiffs would be left without evidence that their consumption of the mussels caused the HAV diagnoses. For purposes of this motion, the defendants conceded that Legal served undercooked mussels to the plaintiffs and that the plaintiffs subsequently contracted HAV. The plaintiffs opposed the motion, positing that they intended to offer their experts’ testimonies to educate the jury on a variety of issues, including Legal’s and GEMF’s food handling practices and whether the undercooked mussels were the source of the HAV contracted by the Fosters.

Expert Reports Found Inadmissible
Federal Rule of Evidence 702 provides that expert reports and expert testimony are admissible if they will assist the trier of fact in understanding the evidence, are based upon sufficient facts or data, are the product of reliable methodologies, and the report or witness presents a reliable application of those methodologies to the facts of the case.14 The United States Supreme Court has outlined two principles for trial courts to bear in mind when deciding whether to admit expert reports: (1) liberal introduction of relevant reports, with a focus on cross-examination and the presentation of contrary evidence to counterbalance the veracity and reliability of an admitted opinion, and (2) the high potential for expert opinions to mislead juries.15 The Court listed four factors to guide reliability determinations: (1) the use of a tested theory, as opposed to a subjective opinion; (2) whether the theory has been subject to peer review; (3) whether there is a known rate of error; and (4) whether the conclusion is accepted within the given scientific community.16

District Court Judge Catherine Blake determined that both Dr. Galati and Mr. Costa were qualified experts in their respective fields. However, Judge Blake held that the experts’ conclusions that the undercooked mussels caused the Fosters’ HAV were not reliable because they failed to rule out, or at least minimize, alternative causes, such as other foods, contact with infected persons, and medications, as required for a valid causation opinion. In the court’s view, the temporal relationship between the Fosters’ dining at Legal and the onset of HAV symptoms supported Dr. Galati’s conclusion, but because of the long HAV incubation period, any number of unaccounted for causes may have intervened.

Similarly, the court found that Mr. Costa’s methodology failed to establish causation, defining his “traceback” from the Fosters’ illness to the mussels as “disjointed and speculative” in light of the lack of evidentiary support for his suspicions that GEMF withdrew the mussels from polluted waters or that any mussels in any area of GEMF’s facilities were contaminated.17 In addition, Judge Blake placed significant emphasis on what she termed “scant epidemiological evidence regarding the prevalence of HAV in mussels, or even shellfish generally,” referring to Mr. Costa’s sources as “largely outdated” and not sufficient to “persuasively establish mussels as a frequent source of HAV.”18

Summary Judgment for Legal and GEMF
Summary judgment is appropriate if the evidence is such that, at trial, no reasonable jury could return a verdict in favor of the non-moving party. In granting the defendants’ motion, and thus, closing the matter, the court held that, without Dr. Galati and Mr. Costa’s causation testimony, the Fosters failed to make a sufficient showing to establish an essential element to their claims.

Endnotes
1.   Foster v. Legal Sea Foods, Inc., and Great Eastern Mussel Farms, Inc., 2008 U.S. Dist. LEXIS 57117, at *3 (D. Md. July 25, 2008).
2.   Id. at *4-5.
3.   Id. at *5.
4.   Id. at *13.
5.   Id. at *11.
6.   Id. at *6. Dr. Galati concluded that while the mussels could have been the source of Juliet’s contraction, it was also a possibility that she contracted HAV through her contact with her husband Ryan. Id. at *7.
7.   Id. at *11.
8.   Id. at *12, FN 4.
9.   Id. at *15-17.
10. Id. at *18. Mr. Costa countered that GEMF’s monitoring of the mussels was inadequate. Id. at *19.
11. Id. at *18.
12. Id. at *20-21.
13. Id. at *23. Dr. Price stated that the foods most commonly contaminated with HAV were “frozen strawberries, lettuce, sandwiches, bakery goods, and green onions.” Id.
14. See also, generally, Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579 (1993).
15. See Foster, 2008 U.S. Distr. LEXIS 57117, at *25-26.
16. Id. at *30.
17. Id. at *40-42.
18. Id. at *20-23, *37, *39.