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Ruiz v. Wintzell's Huntsville L.L.C.

United States District Court, N.D. Alabama, Northeastern Division

September 28, 2017




         Plaintiff 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).[1] 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.


         “The 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).


         On 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).

         Mr. 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, (last 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).

         Vibrio 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).

         The 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. 8).[2]

         According 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).

         During 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).[3] 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).

         Mr. 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).

         Dr. 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).[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. 138, 139).

         Mr. Ruiz also offers the expert opinion of public health sanitarian Roy Costa. (Doc. 150-5).[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. 139).

         Wintzell's 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).[6]

         Mr. 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).

         This 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 below.


         A. WSI's Motion for Summary Judgment

         1. WSI's supply chain defense

         WSI 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.

         “The 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).

         It is 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.

         Evidence 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. 13).[7] 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.

         WSI 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.

         In 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).

         WSI 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).

         The 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.

         Dr. 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.

         In 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).

         An 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.

         WSI 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).[8] 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.

         In 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.

         Central 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.

         Only 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.

         2. Alabama's Innocent Seller Statute

         Alternatively, WSI argues that Alabama's Innocent Seller Statute provides blanket immunity against all of the plaintiffs' claims. The Court disagrees.

         The 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 condition.
(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.

         WSI 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 assertions, ...

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