United States District Court, N.D. Alabama, Northeastern Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
Jose Ruiz developed a severe infection after eating raw
oysters at Wintzell's Oyster House, a restaurant owned
and operated by Wintzell's Huntsville, LLC. Mr. Ruiz
asserts claims for violation of the Alabama Extended
Manufacturer's Liability Doctrine (AEMLD), breach of
warranty, and negligence against Wintzell's Huntsville,
LLC; franchisor Wintzell's Franchise Company, Inc.;
oyster supplier Webb's Seafood, Inc. (WSI); and Price
Foods, Inc., a company that Mr. Ruiz alleges provided
management services to Wintzell's. (Doc. 118). Mr.
Ruiz's wife, Lourdes Ruiz, asserts a claim against the
defendants for loss of consortium. (Doc. 118). Pursuant to
Federal Rule of Civil Procedure 56, the defendants ask the
Court to enter judgment in their favor on the plaintiffs'
claims. (Docs. 137, 140, 142). For the reasons stated below,
the Court grants the defendants' motions for summary
judgment in part and denies the motions in part.
SUMMARY JUDGMENT STANDARD
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary
judgment, a party opposing a motion for summary judgment must
cite “to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). “The court need consider only
the cited materials, but it may consider other materials in
the record.” Fed.R.Civ.P. 56(c)(3). When considering a
summary judgment motion, the Court must view the evidence in
the record in the light most favorable to the non-moving
party and draw reasonable inferences in favor of the
non-moving party. White v. Beltram Edge Tool Supply,
Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).
December 14, 2012 and December 15, 2012, Mr. Ruiz ate raw
oysters at Wintzell's Oyster House in Huntsville,
Alabama. (Doc. 150, p. 2; Doc. 150-7, p. 3; Doc. 166, p. 11).
On December 16, 2012, Mr. Ruiz began experiencing nausea and
diarrhea, and he had a fever. (Doc. 150, p. 2; Doc. 166, pp.
13-14). A few days later, Mr. Ruiz visited the emergency room
because he was experiencing pain, discoloration, and swelling
in his left leg. (Doc. 166, p. 16). Doctors suspected that
Mr. Ruiz had a blood clot in his leg. An ultrasound provided
no evidence to confirm the doctor's suspicions, so the
doctors sent Mr. Ruiz home. (Doc. 166, p. 16). Early the next
morning, when Mr. Ruiz “just could not take the pain
anymore, ” he returned to the emergency room. (Doc.
166, p. 16).
Ruiz does not remember the events that took place after he
arrived at the hospital because he “was in so much pain
and [his doctors] gave [him] so much morphine.” (Doc.
166, p. 17). When Mr. Ruiz woke up, doctors informed him that
he had been infected with Vibrio vulnificus
bacteria, a type of bacteria commonly found in raw oysters.
(Doc. 150, p. 2; Doc. 142, p. 2; Doc. 166, p. 17). Mr.
Ruiz's doctors also told him that he was positive for
Hepatitis C, a virus that causes liver disease. (Doc. 150, p.
2); see Hepatitis C FAQs for the Public, Centers for
Disease Control and Prevention,
visited August 4, 2017). When Mr. Ruiz ate oysters at
Wintzell's, he did not know that he was positive for
Hepatitis C; he was “under the impression that [he] was
very healthy.” (Doc. 150, p. 2; Doc. 166, p. 17).
vulnificus infections generally cause no more than mild
to moderate gastrointestinal symptoms, but individuals with
compromised livers may experience more severe effects.
See Vibrio vulnificus Infections Associated with Eating
Raw Oysters - Los Angeles, 1996, Centers for Disease
Control and Prevention,
(last visited August 7, 2017). As a result of his liver
disease, Mr. Ruiz suffered a severe vibrio
infection, and doctors ultimately had to amputate his left
leg to prevent the infection from spreading. (Doc. 150, pp.
2-3; Doc. 166, p. 17). According to Mr. Ruiz, it is a
“miracle” that he is alive. (Doc. 166, p. 17).
parties acknowledge that Mr. Ruiz's injuries stem from
his consumption of raw oysters at Wintzell's, but the
defendants contend that they are not liable for Mr.
Ruiz's injuries. For its part, oyster supplier WSI argues
that it may not be held liable for Mr. Ruiz's injuries
because Mr. Ruiz cannot prove that WSI supplied the oysters
that he consumed at Wintzell's on December 14 and 15. In
the days leading up to Mr. Ruiz's dinner at
Wintzell's, the restaurant received oysters from WSI and
from a second source, Bon Secour Fisheries. On December 10,
2012, Wintzell's received 2, 500 oysters from WSI and 1,
000 oysters from Bon Secour Fisheries, Inc. (Doc. 137, p. 2;
Doc. 150, pp. 7-8, 24). On December 13, 2012, Wintzell's
received another 2, 500 oysters from WSI. (Doc. 150, p.
to Wintzell's kitchen manager Charles Polk, when
Wintzell's receives oyster deliveries, the driver of the
delivery truck carries the boxes of oysters to Wintzell's
main cooler. (Doc. 164, p. 54). The oysters remain in the
cooler until they are ready to be shucked. (See Doc.
164, p. 58). Each box of oysters that Wintzell's receives
has a harvest date and a use-by date. (Doc. 164, p. 47). To
ensure that oysters with older harvest dates are used before
oysters with more recent harvest dates, Wintzell's
applies “use-first” stickers to the boxes with
the older harvest dates. (Doc. 164, p. 95). The kitchen staff
is trained to use boxes with use-first stickers on them
before using boxes without use-first stickers. (See
Doc. 164, pp. 95, 151). Mr. Polk testified that he was
responsible for placing the use-first stickers on the boxes
of oysters. (Doc. 164, p. 95). According to Mr. Polk,
“[i]f a truck came in and we had boxes [of oysters]
already there, the first thing that'll be done, use first
would be on there before the new order came in.” (Doc.
164, p. 96).
a typical dinner service at Wintzell's, the oyster
shucker arrives at the restaurant around 1:00 p.m. (Doc. 164,
p. 65). The shucker removes a box of oysters from the cooler
and brings the box to the shucking station outside the
kitchen. (Doc. 164, pp. 58-59). The oysters are kept on ice at
the shucking station. (Doc. 164, pp. 63-64). When the shucker
has shucked 24 oysters, the shucker places the oysters on a
cooled metal tray, wraps the tray in plastic, marks the date,
and moves the oysters to the cooler, where the oysters remain
until a customer orders them. (Doc. 164, pp. 63-64).
Polk does not know whether the oysters that Mr. Ruiz consumed
on December 14, 2012 and December 15, 2012 came from Bon
Secour or WSI. (Doc. 164, pp. 101-02). Although he is
“pretty sure” based on “good
training” that Wintzell's kitchen staff followed
the use-first protocol in the days leading up to Mr.
Ruiz's dinner on December 15, Mr. Polk stated that he has
no personal knowledge of whether the staff in fact used boxes
marked “use first” before using boxes with more
recent harvest dates. (See Doc. 164, pp. 150-54).
Mr. Polk testified that it is possible, though unlikely, that
the oysters that Bon Secour delivered on December 10, 2012
still were in inventory on December 14, 2012 or December 15,
2012. (See Doc. 164, pp. 150-54).
Gary Rodrick, Mr. Ruiz's expert, has opined that it is
extremely unlikely that Bon Secour oysters still were in
Wintzell's inventory on December 15. Dr. Rodrick opines
that WSI supplied the oysters that Mr. Ruiz consumed. (Doc.
150-4). In addition, Dr. Rodrick opines that the
oysters contained an unreasonably dangerous level of
Vibrio vulnificus, that WSI contributed to the
unreasonably dangerous level of Vibrio vulnificus in
the oysters, and that Wintzell's was negligent in
purchasing oysters from WSI. (Doc. 145, pp. 1-2; Doc. 150-4,
pp. 4- 5, 7). The Wintzell's defendants and WSI have
filed motions to strike Dr. Rodrick's testimony. (Docs.
Ruiz also offers the expert opinion of public health
sanitarian Roy Costa. (Doc. 150-5). Mr. Costa opines that
Wintzell's committed health code violations by failing to
properly store and serve its raw oysters, which caused the
vibrio bacteria in the oysters to multiply to unsafe
levels. (Doc. 150-5, p. 4). Mr. Costa also is of the opinion
that both Wintzell's Huntsville and Wintzell's
Franchise Company were negligent in their selection of oyster
suppliers, and that both entities are responsible for failing
to introduce adequate employee training and procedures for
handling raw oysters. (Doc. 150-5, p. 4). Wintzell's has
filed a motion to strike Mr. Costa's testimony. (Doc.
Huntsville, LLC is a franchisee of Wintzell's Franchise
Company, Inc. (Doc. 163, pp. 26-29). Dana Price, operating
member and 50% owner of Wintzell's Huntsville, LLC,
testified that Wintzell's Franchise Company provided him
“with operational procedures, systems, [and] menus. . .
.” (Doc. 163, p. 29). According to Mr. Price, the
restaurant's general manager was responsible for employee
training, while Wintzell's Franchise Company provided
training materials. (Doc. 163, pp. 31-32). Additionally,
Wintzell's Franchise Company provided its franchisees
with the menu warnings alerting customers to the dangers of
eating raw meat and seafood. (Doc. 163, p. 35).
Price employed Alan Renfroe in a managerial capacity at
several of his restaurant locations including his
Wintzell's Oyster House in Huntsville. (Doc 163, pp.
18-19, 24, 62). At Wintzell's Huntsville, Mr. Renfroe
worked as the director of operations. He was responsible for
overseeing matters relating to guest satisfaction and
“proper [restaurant] procedures, ” although he
spent only limited time at Wintzell's Huntsville during
any given week. (Doc. 163, p. 61; Doc. 150-13, p. 9).
broad overview of the facts provides a backdrop for the
Court's analysis of the defendants' motions.
Additional facts relevant to those motions are discussed
WSI's Motion for Summary Judgment
WSI's supply chain defense
argues that the Court should enter judgment in the
company's favor on Mr. Ruiz's AEMLD, negligence, and
breach of warranty claims because Mr. Ruiz cannot establish
that WSI supplied the oysters that he consumed. WSI contends
that the evidence is insufficient to enable jurors to find
with mathematical certainty that the oysters that made Mr.
Ruiz sick came from WSI rather than Wintzell's other
supplier, Bon Secour. (Doc. 137, p. 2). WSI's argument
fails because at the summary judgment stage, mathematical
certainty is not the standard of evidentiary proof.
burden of proof is a substantive issue and is therefore
controlled by state law in diversity cases.”
Wynfield Inns v. Edward LeRoux Grp., Inc., 896 F.2d
483, 491 (11th Cir. 1990). “In all civil actions
brought in any court of the State of Alabama, proof by
substantial evidence shall be required to submit an issue of
fact to the trier of the facts.” Ala. Code 1975 §
12-21-12. Substantial evidence is “evidence of such
weight and quality that fair-minded persons in the exercise
of impartial judgment can reasonably infer the existence of
the fact sought to be proved.” West v. Founders
Life Assurance Co. of Fla., 547 So.2d 870, 871 (Ala.
1989). Evidence can permit the inference that a fact exists
even though it does not establish that fact's existence
to a mathematical certainty. Where a plaintiff's evidence
permits a reasonable juror to infer that a material fact
exists, then the Court should deny a defendant's motion
for summary judgment. See Fed. R. Civ. P. 56(a).
true, of course, that a jury's verdict may not be based
on speculation. See Ex Parte Harold L. Martin Distrib.
Co., Inc., 769 So.2d 313, 315 (Ala. 2000). The evidence
concerning the source of the oysters that Mr. Ruiz consumed
is sufficiently probative to enable jurors to reasonably
infer that WSI supplied the oysters than made Mr. Ruiz ill.
That evidence begins with raw numbers: between December 10
and December 14, Wintzell's oyster inventory consisted of
1, 000 oysters from Bon Secour and 5, 000 oysters from WSI.
(Doc. 164, p. 82; Doc. 164-3, pp. 12-13). Thus, 80% of the
oysters in Wintzell's inventory were WSI oysters.
concerning the timing of oyster deliveries and Wintzell's
oyster usage policies also is important. Bon Secour delivered
its 1, 000 oysters to Wintzell's on December 10, 2012;
Sysco delivered approximately 2, 500 WSI oysters on the same
date. On December 13, 2012, Sysco delivered another 25 boxes
containing approximately 2, 500 WSI oysters. (Doc. 164-3, p.
Viewed in the light most favorable to Mr. Ruiz, the record
contains evidence that Wintzell's staff routinely placed
“use first” stickers on boxes of raw oysters
already in inventory when another shipment arrived and that
Wintzell's had a policy of shucking boxes so marked
before boxes delivered later. (Doc. 136, pp. 40-42). As
mentioned, based on Wintzell's “use first”
policy, Wintzell's kitchen manager testified that it is
unlikely that Bon Secour oysters remained in Wintzell's
inventory on December 14 and 15. (Doc. 164, pp. 150-54). From
all of this evidence jurors could reasonably infer that
Wintzell's employees shucked and served the oysters that
Bon Secour delivered on December 10 before Mr. Ruiz ate at
the restaurant on December 15. That leaves only WSI oysters
for Mr. Ruiz's consumption.
argues that the amount of oysters in Wintzell's inventory
on December 10, 2012 cannot be exactly quantified. (Doc. 137,
p. 18). WSI also argues that Mr. Ruiz cannot prove
definitively that Wintzell's employees followed the
prescribed first-in, first-out procedure for raw oysters
during the week in question. (Doc. 137, pp. 8-9). These
objections are jury arguments about the weight of the
evidence. At summary judgment the Court must draw reasonable
inferences from the evidence in favor of Mr. Ruiz, and the
raw numbers combined with the undisputed delivery dates and
Wintzell's “use-first” policy produce
reasonable inferences sufficient to create a jury question.
addition to shipping records and Wintzell's internal
policies, the plaintiffs rely on Dr. Rodrick's expert
opinion that the oysters which Mr. Ruiz consumed on December
15 came from WSI. (Doc. 150-4, p. 4). To develop his opinion,
Dr. Rodrick evaluated the harvest date tags from
Wintzell's December 2012 oyster inventory and
Wintzell's sales records and determined, based on his
experience in the industry, that WSI supplied the oysters
that made Mr. Ruiz sick. (Doc. 150-4, p. 4).
challenges Dr. Rodrick's competence to give testimony
regarding the origin or supply chain from which
Wintzell's received the oysters consumed by Mr. Ruiz.
(Doc. 138, p. 2). WSI asserts that Dr. Rodrick has no
education or training qualifying him to render opinions on
the subject of oyster origination. (Doc. 138, p. 2). WSI also
argues that Dr. Rodrick's methods are not sufficiently
reliable to pass muster under the Daubert standard.
(Doc. 138, p. 6).
Supreme Court's decision in Daubert v. Merrell Dow
Pharmaceuticals assigned a gatekeeping role to the
district court with respect to the admissibility of
scientific expert testimony. 508 U.S. 579, 597 (1993).
“The district judge has ‘the task of ensuring
that an expert's testimony both rests on a reliable
foundation and is relevant to the task at hand.'”
Chapman v. Proctor & Gamble Distrib., LLC, 766
F.3d 1296, 1306 (11th Cir. 2014) (quoting Daubert,
509 U.S. at 597). The Supreme Court later extended this
gatekeeping role to cover admissibility determinations for
all types of expert testimony including technical testimony
based on “knowledge and experience of [the relevant]
discipline.” See Kuhmo Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 149 (1999). Exercising its
gatekeeping role, the Court finds that Dr. Rodrick is
qualified to offer an opinion about the source of the
allegedly contaminated oysters, and his opinion is relevant
and rests on a reliable foundation.
Rodrick is a biologist who focuses his research on food
safety and seafood microbiology. (Doc. 138-1, pp. 1, 8). His
CV indicates that he has received numerous grants to study
pathogens in commercially important shellfish. (Doc. 138, p.
9). His publications include a script for an informational
program on safety in purchasing and distributing shellfish as
well as several abstracts on hazard analysis and critical
control points (HACCP) assessments for shellfish
distributors. (Doc. 138, pp. 12, 23-24). Dr. Rodrick teaches
several courses devoted to the issue of food safety, and the
discipline entails exploration of seafood distribution
chains. (Doc. 145-1, p. 2). While the study of distribution
chains may not be scientific in a technical sense, it is an
area in which someone may gain expertise through personal
knowledge and experience. Based on his background, the Court
finds that Dr. Rodrick has sufficient experience with food
safety and distribution, particularly with respect to
shellfish, to give testimony on the source of the oysters
that Wintzell's served on December 14 and 15, 2012.
response to WSI's objection that Dr. Rodrick's
methodology is not sufficiently reliable, the Court notes
that government regulations seem to contemplate precisely the
exercise that Dr. Rodrick used to trace the oysters in this
case. Regulations mandate that the tags accompanying all
oyster shipments must identify the date and location of the
harvest, the identity of the harvester, and the identity of
any packer or repacker. 21 C.F.R. § 1240.60(b), (c).
Section 123.28 mandates that recipients of these shipments
maintain records of the information required for the oyster
tags. 21 C.F.R. § 123.28(c), (d).
analysis of the harvest tags in conjunction with
Wintzell's sales records and WSI's business records
is something that Dr. Rodrick is capable of performing as a
task incident to his work in food safety. Given the evidence
recited above, there does not appear to be “too great
an analytical gap between the data and the opinion
proffered.” Chapman, 766 F.3d at 1306-07
(internal quotations omitted). Thus, the Court finds that Dr.
Rodrick has used a sufficiently reliable method applied to a
sufficient body of evidence to offer an opinion about the
oysters' origins. The Court, therefore, denies WSI's
motion to strike Dr. Rodrick's testimony.
argues that with or without Dr. Rodrick's opinions, the
plaintiffs' supply chain evidence is not sufficient to
create a question of fact under the Azalea Box
standard. Turner v. Azalea Box Co., 508 So.2d 253
(Ala. 1987). The Court finds that the facts of
Azalea Box are distinguishable from the facts in
this case, so Azalea Box does not warrant summary
judgment for WSI.
Azalea Box, the origin of an allegedly defective
wooden shipping pallet was unclear. The Coca-Cola distributor
where the plaintiff worked received pallets from two
suppliers, one of which was Azalea Box Company. Azalea
Box, 508 So.2d at 253-54. The distributor also traded
pallets with other distributors and repaired some of the
pallets in the warehouse. Azalea Box, 508 So.2d at
254. The parties agreed that the pallets were not distinctive
in a way that would allow the pallets to be traced to one
source or another. Azalea Box, 508 So.2d at 254. The
Court reviewed the four possible sources of the pallet that
caused the plaintiff's injuries and concluded that:
two things can be equally inferred: (1) Azalea Box
manufactured and sold the subject pallet to Coca-Cola, or (2)
Azalea Box did not manufacture and sell the subject pallet to
Coca-Cola. Accordingly, to use this evidence to support
Turner's contention that Azalea Box supplied the pallet
in question to the exclusion of other sources is to engage in
speculation and conjecture.
Azalea Box, 508 So.2d at 254. Consequently, the
Alabama Supreme Court affirmed summary judgment for Azalea
Box on Turner's AEMLD claim, noting that “[w]hen
evidence points equally to inferences that are favorable and
to inferences that are unfavorable to the moving party, the
evidence lacks probative value; and the evidence may not be
used to support one inference over another because such use
is mere conjecture and speculation.” Azalea
Box, 508 So.2d at 254.
to the Alabama Supreme Court's holding in Azalea
Box was its determination that the evidence equally
supported two conflicting inferences. The facts presented
here are unlike Azalea Box because, although the
evidence can support more than one inference, the support for
each inference is not equal. WSI notes that its oysters and
those from Bon Secour are physically indistinguishable. (Doc.
137, p. 8). That may be true, but the factual analogies to
Azalea Box end there. Unlike the pallets in
Azalea Box, the oysters at issue here have only two
possible sources: WSI or Bon Secour. (Doc. 137, pp. 7-8). The
question is whether the plaintiffs' evidence indicates
that the oysters which Wintzell's served on December 14
or 15 are more likely to have come from WSI than from Bon
Secour. As discussed, the weight of the evidence, viewed most
favorably to the plaintiffs, points to WSI as the source of
the contaminated oysters.
where the evidence “is without selective
application” to a particular inference is an inference
drawn from the evidence reduced to impermissible conjecture.
Vesta Fire Ins. Corp. v. Milam & Co. Constr.,
901 So.2d 84, 101 (Ala. 2004) (internal quotations omitted).
This description simply does not fit the plaintiffs'
evidentiary showing concerning the source of the oysters that
Mr. Ruiz consumed. A jury will have to decide whether WSI
supplied the oysters.
Alabama's Innocent Seller Statute
WSI argues that Alabama's Innocent Seller Statute
provides blanket immunity against all of the plaintiffs'
claims. The Court disagrees.
Innocent Seller Statute states, in relevant part:
(b) No product liability action may be asserted or may be
provided a claim for relief against any distributor,
wholesaler, dealer, retailer, or seller of a product, or
against an individual or business entity using a product in
the production or delivery of its products or services
(collectively referred to as the distributor) unless any of
the following apply:
(1) The distributor is also the manufacturer or assembler of
the final product and such act is causally related to the
product's defective condition.
(2) The distributor exercised substantial control over the
design, testing, manufacture, packaging, or labeling of the
product and such act is causally related to the product's
(3) The distributor altered or modified the product, and the
alteration or modification was a substantial factor in
causing the harm for which recovery of damages is sought.
(4) It is the intent of this subsection to protect
distributors who are merely conduits of a product. This
subsection is not intended to protect distributors from
independent acts unrelated to the product design or
manufacture, such as independent acts of negligence,
wantonness, warranty violations, or fraud.
Ala. Code 1975 § 6-5-521.
begins its argument by noting, correctly, that the term
“products liability” is broad enough to encompass
all of the plaintiffs' claims for relief. (Doc. 137, p.
19). WSI continues by explaining that it “did not
manufacture or assemble the oysters . . . WSI did not
exercise any substantial control over the design, testing,
manufacture, packaging, or labeling of the oysters . . . WSI
did not alter or modify the oyster product that was consumed
by Mr. Ruiz.” (Doc. 137, pp. 13-14). Based on these