Johnson, Deborah v. Conagra Foods, Inc. and Albertson's LLC

 
REVERSE and REMAND; Opinion Filed April 3, 2012.
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-01296-CV
............................
DEBORAH JOHNSON, Appellant
V.
CONAGRA FOODS, INC. AND ALBERTSON'S, LLC, Appellees
.............................................................
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 09-13462
.............................................................
MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Lang
 
Appellant Deborah Johnson filed this personal injury lawsuit
against ConAgra Foods, Inc. and Albertson's, LLC (collectively,
appellees) based on her contention that she suffered food poisoning as a
result of consuming a pot pie manufactured by ConAgra Foods, Inc. and
sold to her by Albertson's, LLC. The trial court granted appellees'
traditional motion for summary judgment and dismissed Johnson's claims.
On appeal, Johnson asserts seven issues in which she challenges the
trial court's evidentiary rulings and contends the evidence raised a
fact issue that precluded summary judgment. We reverse the trial court's
order granting summary judgment and remand this case to the trial court.
Because all dispositive issues are settled in law, we issue this
memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
In her live petition at the time of the order complained of,
 
Johnson asserted that on approximately October 5, 2007, she purchased
several Banquet brand frozen chicken and turkey pot pies manufactured
and distributed by ConAgra Foods, Inc. at a supermarket owned and
operated by Albertson's, LLC. That same evening, at approximately 10 or
11 p.m., she cooked and ate one of those pot pies. Johnson alleged that
“soon thereafter,” she “became extremely ill to the point of
incapacitation.” Specifically, she stated her stomach “cramped up,” she
“felt an intense urge to throw up and to defecate at the same time but
was unable to do either,” she had an intense headache and chest pain,
and she “felt feverish.” She asserted that she tried to sleep, but due
to her intense pain and discomfort was unable to sleep all night. She
“felt too weak to go anywhere or call anybody.”
According to Johnson, her illness continued for several days. On
Monday, October 8, 2007, she learned from a television news report that
certain Banquet brand pot pies had been contaminated with salmonella.
She asserted that she verified that the pot pies she had purchased had
the same packaging numbers as those which she learned had been
contaminated. At that point, she concluded she was suffering from the
effects of food poisoning and decided she should go to the hospital.
However, she had no means of transportation and was afraid to leave her
apartment at night, so she did not go to the hospital on that date.
On the morning of October 11, 2007, she still felt nauseous and
weak and sought medical attention at the emergency room at Baylor
 
University Medical Center. She contended that as a result of consuming
the pot pie in question, she experienced extended pain and suffering,
mental anguish, and physical impairment and incurred bills for required
medical services. She asserted claims against appellees for product
liability, negligence, gross negligence, and violation of the Texas
Deceptive Trade Practices Act. See Tex. Bus. & Com. Code Ann. §§ 17.41-
.63 (West 2011 & Supp. 2011).
Appellees filed separate answers that included general denials
and various affirmative defenses not relevant to this appeal. At
appellees' request, Johnson's deposition was taken on May 10, 2010, and
Dr. Ronald J. Washington, who was designated by Johnson as a medical
expert, was deposed on May 11, 2010. Johnson testified in her deposition
in relevant part:
Q. At some point you started feeling bad after consuming the pot pie,
correct?
A. Yes.
Q. When did that happen?
A. After I ate the pot pie.
Q. How soon after you ate the pot pie ma'am?
A. Oh, about an hour. An hour-I think about an hour. I'm not sure.
Q. Okay, when you say about an hour or so, what leads you to that
conclusion? Do you recall what you did from [the] time you ate the pot
pie until the time you started feeling ill?
A. I was in the bed.
Q. Okay.
A. l ate and I was in the bed.
Q. Okay.
A. I laid down.
Q. Okay. So . . .
A. It doesn't-I'm not sure about the hour, but that's when I-you know,
I'm not sure about the hour.
Q. Your best recollection as you sit here today was roughly after an
hour after you consumed it, you started-
A. It could have been. It-
 
Q. -feeling symptoms?
A. -could have been. lt could have been less than that.
Q. So it could have been less than an hour?
A. Yes.
Q. Was it pretty quick in your mind from the time you ate the pot pie
until the time you started feeling symptoms?
A. That I can't remember because-I just can't remember it now.
Q. Is there anything out there that would refresh your recollection in
terms of how long or how much time elapsed from the time you consumed
the pot pie until the time the symptoms started?
A. No.
. . . .
Q. So from Friday at some time after 10 o'clock, an hour or so after you
consumed the pot pie, until Monday morning, you weren't able to move out
of your bed?
A. Uh-uh (negative).
Q. Is this a “no”?
A. No, I didn't move, no.
Q. Were you able to go to the bathroom at all during that time frame?
A. No. I couldn't use the restroom.
Q. Okay. So at that point, you didn't have any vomiting or diarrhea?
A. Not at that point, no.
Q. What happened on Monday morning, ma'am?
A. I started to feel a little better but I started to-that's when I
started to have the diarrhea and kind of gagging or vomiting and fever.
I had fever also.
Washington testified in relevant part in his deposition that (1)
the symptoms of salmonella typically present twelve to seventy-two hours
after consumption of the bacteria, (2) the symptoms Johnson described to
him were consistent with consumption of a food product contaminated with
salmonella, and (3) it is his opinion that Johnson suffered an
intestinal infection due to salmonella “as a result of consuming a pot
pie produced by ConAgra.”
 
Appellees filed a motion for summary judgment on the ground that
“[Johnson's] sworn testimony, along with the sworn testimony of her own
medical causation expert, establish as a matter of law that her alleged
illness occurred well before the scientifically accepted incubation
period for Salmonella, thereby negating the possibility that her illness
was the result of the consumption of ConAgra pot pie.” Appellees
asserted “the incubation period for Salmonella is 6 to 72 hours, at
best.” Appellees contended Johnson “confirmed that she developed
salmonellosis-like symptoms within one hour, and perhaps sooner,” after
consuming the pot pie at issue. Therefore, appellees argued, (1) “the
onset of these symptoms cannot be attributed to her consumption of the
ConAgra pot pie, as Salmonella could not have multiplied sufficiently to
have triggered symptoms in such a short time” and (2) “it is almost
certain that [Johnson's] alleged illnesses were caused not by a ConAgra
pot pie, but rather by something else.” Appellees requested summary
judgment pursuant to Texas Rule of Civil Procedure 166a(c). See Tex. R.
Civ. P. 166a(c). Evidence attached to appellees' motion for summary
judgment included (1) an affidavit of appellee's expert, Dr. Stephen I.
Wilkofsky, in which he testified, in relevant part, that the incubation
period for salmonella “can range from 6 to 72 hours” and (2) excerpts
from the deposition testimony of Johnson and Washington.
Additionally, appellees filed a supplement to their motion for
summary judgment in which they objected to an “errata sheet” submitted
 
by Johnson following her deposition. Attached to appellees' supplement
was a copy of the challenged “errata sheet.” In that document, Johnson
identified portions of her deposition by page number and line number,
including portions regarding the amount of time that elapsed between her
consumption of the pot pie in question and the onset of her symptoms,
and specified changes to those portions and reasons for such changes.
The revisions included, in part, changing her words “about an hour” to
“I don't remember” and adding “I don't know how long after I ate the pot
pie I started feeling sick because I woke up in the middle of the night
feeling sick.” The reasons stated by Johnson included, in part, “I woke
up feeling sick and don't remember what time I woke up or have any idea
how much time had went by since I ate the pot pie.”
Johnson responded by objecting to appellees' “reliance upon
deposition testimony that was timely amended.” Further, Johnson argued
her deposition testimony does not establish that it is undisputed that
she became ill less than six hours after consuming the pot pie in
question. Attached as evidence to Johnson's summary judgment response
was an affidavit in which she testified, in part, “When my deposition
was taken I was speculating as to how long it had been after I ate the
pot pie that I woke up feeling sick but I don't have any idea or
recollection of how much time had passed because I had been asleep and
don't know what time I woke up . . . .” Additionally, Johnson attached
to her response an affidavit of her counsel that included several
 
exhibits.
Appellees filed a reply in which they contended “[Johnson's]
changed testimony still does not satisfy her burden as she still has not
established that she was sick within the appropriate incubation period.”
Additionally, appellees objected to Johnson's affidavit attached to her
summary judgment response and the exhibits attached to her counsel's
affidavit.
Following a hearing, the trial court signed an order in which it
granted appellees' motion for summary judgment and dismissed Johnson's
claims. This appeal timely followed.
II. SUMMARY JUDGMENT
 
On appeal, Johnson asserts seven issues. Issues two through
seven pertain to her objections to appellees' reliance on her original
deposition testimony, rather than her “timely corrections” to that
testimony, and the trial court's alleged failure and/or refusal to rule
on her objections. However, we address only Johnson's first issue, in
which she asserts that a fact issue precluded the granting of appellees'
motion for summary judgment.
A. Standard of Review and Applicable Law
 
We review a summary judgment de novo. Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A traditional
summary judgment pursuant to Texas Rule of Civil Procedure 166a(c) is
properly granted only when the movant establishes that there are no
genuine issues of material fact and that it is entitled to judgment as a
matter of law. Tex. R. Civ. P. 166a(c); see also Provident Life &
Accident Ins. Co., 128 S.W.3d at 215-16; Dickey v. Club Corp. of Am., 12
 
S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet. denied). When a defendant
moves for summary judgment, he must either (1) disprove at least one
essential element of the plaintiff's cause of action or (2) plead and
conclusively establish each essential element of an affirmative defense,
thereby defeating the plaintiff's cause of action. See Frost Nat'l Bank
v. Fernandez, 315 S.W.3d 494, 508-09 (Tex. 2010). Only if the movant
conclusively establishes its cause of action does the burden shift to
the nonmovant to respond with evidence raising a genuine issue of
material fact that would preclude summary judgment. Rhone-Poulenc, Inc.
v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999); Gonzalez v. Mission Am.
Ins. Co., 795 S.W.2d 734, 736 (Tex. 1990); Casso v. Brand, 776 S.W.2d
551, 556 (Tex. 1989). In deciding whether there is a disputed material
fact precluding summary judgment, evidence favorable to the nonmovant
will be taken as true. Provident Life & Accident Ins. Co., 128 S.W.3d at
215. Further, every reasonable inference must be indulged in favor of
the nonmovant and any doubts resolved in its favor. Id. When, as here,
the trial court's order does not specify the basis for its summary
judgment, we affirm the summary judgment if any of the theories
presented to the trial court and preserved for appellate review are
meritorious. Id.; McMahon Contracting, L.P. v. City of Carrollton, 277
S.W.3d 458, 468 (Tex. App.-Dallas 2009, pet. denied).
Causation is a necessary element of proof for claims of
negligence, gross negligence, product liability, and violations of the
 
DTPA. See, e.g., Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905,
914 (Tex. 2007); Steak & Ale of Tex., Inc. v. Borneman, 62 S.W.3d 898,
904 (Tex. App.-Fort Worth 2001, no pet.).
B. Analysis
 
In her first issue, Johnson contends the trial court erred by
granting appellees' motion for summary judgment because she “raised one
or more fact issues” in her summary judgment response and objections.
Specifically, Johnson asserts in part that her deposition testimony
“does not establish that she became ill less than six hours after
consuming the pot pie in question.”
Appellees argue they “negated the essential element of
causation” in their motion for summary judgment. Appellees assert it is
undisputed that the “proper incubation period” for salmonella is “a
minimum of six hours on the low end and a maximum of 72 hours on the
high end.” According to appellees, “[w]hen one compares the minimum
incubation period to [Johnson's] sworn deposition testimony, it becomes
very clear that her alleged illness occurred well before the
scientifically accepted incubation period,” thereby “negating the
possibility that her illness was caused by a pot pie allegedly
manufactured and/or sold by Appellees.” In support of that argument,
appellees cite to Johnson's original deposition testimony and assert
that she made the following “admissions”: (1) “[t]o the best of her
recollection, [Johnson] started getting sick within one hour after her
alleged consumption of the pot pie”; (2) “[t]o the best of her
recollection, [Johnson] could have gotten sick less than one hour [sic]
 
of her alleged consumption of the pot pie”; and (3) “there was nothing
out there that could have refreshed her recollection as to how much time
elapsed from the time she consumed the pot pie until the time the
symptoms started.” Appellees contend
This summary judgment evidence, when compared to the agreed upon
incubation period for Salmonella, eviscerate [Johnson's] claims as a
matter of law. Therefore, once presented to the trial court, the burden
then shifted to [Johnson] to raise an issue of material fact in order to
avoid summary judgment. [Johnson] did not meet that burden.
Additionally, appellees argue “[Johnson's] changed testimony is not
enough to create an issue of material fact because the changed testimony
does not establish that she became ill within the medically accepted
incubation period.”
As described above, Johnson was not required to produce summary
judgment evidence raising a genuine issue of material fact until after
appellees established their entitlement to summary judgment as a matter
of law. See Rhone-Poulenc, Inc., 997 S.W.2d at 222-23; Gonzalez, 795
S.W.2d at 736; Casso, 776 S.W.2d at 556; see also Duffy v. Denny's
Rest., No. 05-96-01929-CV, 1999 WL 23215, at *2 (Tex. App.-Dallas Jan.
22, 1999, no pet.) (not designated for publication) (granting of
restaurant's summary judgment motion was improper where restaurant
failed to conclusively show its hamburger did not cause plaintiff's
salmonella infection). On this record, regardless of whether the trial
court admitted into evidence Johnson's proposed changes to her
 
testimony, we cannot conclude appellees met their summary judgment
burden.
First, while appellees accurately quote several excerpts from
Johnson's original, unchanged deposition testimony in support of their
argument, the summary judgment evidence included additional portions of
that testimony, as set forth above. Johnson's statements that she began
feeling ill “about an hour” after consuming the pot pie are inconsistent
with her testimony that she “can't remember” and is “not sure” how much
time passed. Thus, taken in its entirety, her original deposition
testimony is, at best, equivocal as to how soon after consuming the pot
pie she began feeling ill. See Voorhies v. Frankel Family Trust, No.
05-08-00475-CV, 2009 WL 793847, at *6 (Tex. App.-Dallas Mar. 27, 2009,
no pet.) (mem. op.) (tenant's use of word “probably” in message
pertaining to his intent to move out made that message equivocal).
Equivocal testimony is insufficient to meet a movant's summary judgment
burden of proof. See id.; accord Parker v. Yen, 823 S.W.2d 359, 365
(Tex. App.-Dallas 1991, no writ); Whittington v. City of Austin, 174
S.W.3d 889, 901 n.8 (Tex. App.-Austin 2005, pet. denied); Ted Gray, Inc.
v. Taco Villa, Inc., 759 S.W.2d 509, 510 (Tex. App.-Austin 1988, writ
denied).
Further, as described above, Johnson made revisions to her
deposition testimony that eliminated her statements of “about an hour”
and added statements that she doesn't know what time, or how long after
eating the pot pie, she started feeling ill. Appellees argue that even
 
assuming the trial court accepted Johnson's “errata sheet” and affidavit
as part of the summary judgment record, summary judgment was
appropriate. However, we cannot agree. Johnson's testimony as altered by
her “errata sheet” and affidavit does not establish that her illness
commenced outside of the six to seventy-two hour incubation period for
salmonella. Thus, that altered testimony does not satisfy appellees'
burden to negate causation. See Duffy, 1999 WL 23215, at *2 (citing
Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800-01 (Tex.
1994)); see also Frost Nat'l Bank, 315 S.W.3d at 508-09.
Second, regardless of the timing of her symptoms on October 5,
the date she consumed the pot pie, Johnson testified unequivocally that
she did not begin experiencing diarrhea and vomiting until Monday,
October 8, approximately three days after she consumed the pot pie.
Thus, even if she initially experienced an illness that commenced
outside the six to seventy-two hour incubation period for salmonella,
her testimony does not establish that she did not also experience
salmonella within the established incubation period.
On this record, we conclude the trial court erred by granting
appellees' motion for summary judgment. We decide Johnson's first issue
in her favor.
III. CONCLUSION
 
We conclude that because appellees did not meet their summary
judgment burden to negate causation, the trial court erred by granting
appellees' motion for summary judgment. We decide in favor of Johnson on
her first issue. We need not address Johnson's remaining issues.
 
We reverse the trial court's order granting appellees' motion
for summary judgment and remand this case to the trial court for further
proceedings consistent with this opinion.
 
 
DOUGLAS S. LANG
JUSTICE
101296F.P05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DEBORAH JOHNSON, Appellant
No. 05-10-01296-CVV.
CONAGRA FOODS, INC. AND ALBERTSON'S, LLC, AppelleesAppeal from the 134th
Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 09- 13462).
Opinion delivered by Justice Lang, Justices Bridges and FitzGerald
participating.
In accordance with this Court's opinion of this date, the order
of the trial court is REVERSED and this cause is REMANDED to the trial
court for further proceedings. It is ORDERED that appellant Deborah
Johnson recover her costs of this appeal from appellees ConAgra Foods,
Inc. and Albertson's, LLC.
Judgment entered April 3, 2012.
/Douglas S.
Lang/
DOUGLAS S. LANG
JUSTICE
 
-------------------