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SANTARELLI v. B P AMERICA

January 18, 1996

SHARON SANTARELLI and ALAN SANTARELLI, her husband, Plaintiffs
v.
B P AMERICA, AQUASTAR, PRICE CHOPPER SUPERMARKETS, a Golub Corporation Company, GOLUB CORPORATION, BAY STATE LOBSTER CO., INC. and HERITAGE SALMON COMPANY, INC., Defendants


James F. McClure, Jr., United States District Judge


The opinion of the court was delivered by: MCCLURE

January 18, 1996

 BACKGROUND:

 Plaintiffs Sharon and Alan Santarelli filed this products liability action to recover for injuries sustained by Sharon Santarelli as the alleged result of ingesting a toxin or toxins contained in salmon. Sharon Santarelli purchased one-half of a salmon from her local Price Chopper supermarket in Wilkes-Barre, Pennsylvania on January 18, 1992.

 She prepared and ate a portion of the salmon the following day. Plaintiff was the only member of her family who ate the salmon. Within hours of consuming it, she experienced a series of bizarre and unnerving symptoms ranging from stomach problems to neurological problems. Plaintiff experienced nausea, diarrhea, abdominal pain, hyperventilation, increased heart rate, tooth pain, a strange metallic taste in her mouth, numbness in her extremities, sensations of extreme cold and dysesthesia. Alarmed by her symptoms, plaintiff went to the emergency room at Nesbitt Memorial Hospital (Nesbitt Memorial). Plaintiff was diagnosed as suffering from bronchitis and placed on Ceclor.

 Her condition did not improve. She was seen on January 22, 1992 by her family physician, Frank C. Olshemski, M.D. *fn1" Plaintiff reported that her symptoms had not abated and had, if anything, worsened and multiplied. In addition to the symptoms reported previously at the emergency room, plaintiff reported experiencing intermittent prickling sensations and difficulty swallowing or consuming any food. Dr. Olshemski ordered a series of diagnostic tests.

 Plaintiff was admitted to Nesbitt Memorial the following day. Plaintiff remained hospitalized until January 26, 1992. Thereafter, she continued to receive follow-up care from Dr. Olshemski. Plaintiff's symptoms continued essentially unabated and continued to elude a definitive diagnosis. Batteries of tests excluded a number of possibilities but gave no possible or probable explanation for plaintiff's severe, debilitating and strange constellation of symptoms.

 Concern about plaintiff and the elusiveness of any explanation for her symptoms, other than their apparent link to her ingestion of the salmon on January 19, 1992, prompted plaintiff's relatives to contact Mark J. DiNubile, M.D., *fn2" a specialist in infectious diseases. Dr. DiNubile's suspicion, later confirmed by plaintiff's family physician, was that she suffered from the ingestion of ciguatera or other marine toxins.

 Ciguatera is a natural component of tropical algae which bioaccumulates up the food chain. Poisoning from its ingestion has long been a problem in tropical climates. Ciguatera poisoning has historically been associated with the consumption of tropic or reef-dwelling fish. *fn3" It has typically not been associated with the consumption of cold-water-dwelling fish, such as salmon, because the toxin is not naturally occurring in cold waters. Plaintiff's case is thought to be unique in that she apparently contracted the illness after consuming salmon, a fish not normally associated with ciguatera poisoning. The posited explanation for the existence of the toxin in a species from a region not normally associated with it is based on the fact that the salmon consumed by plaintiff was farm-raised. Plaintiffs theorize that the farm-raised salmon was kept in proximity to fish from the tropics and the toxin was somehow transmitted from or through them.

 There is no known antidote or cure for ciguatera poisoning. Symptoms typically abate after a period of six months but can last longer. Plaintiff continued to experience serious neurological problems for years after allegedly ingesting the toxin.

 Plaintiff filed this action against Price Chopper Supermarkets; Golub Corporation (the parent corporation of Price Chopper); and against the three seafood suppliers of Price Chopper identified as potentially responsible for supplying the salmon purchased by the plaintiff: Aqua Star, Bay State Lobster Co., Inc. (Bay State), and Heritage Salmon Company, Inc. (Heritage). BP America (BP) was also named as a defendant, due to its corporate affiliation with Aqua Star.

 Plaintiff alleges claims of negligence, breach of warranty and strict liability (Counts I, II and III, respectively) against all defendants. Plaintiffs also assert a claim under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (Count IV) against all defendants. Alan Santarelli asserts a claim for loss of consortium (Count V).

 Defendants move jointly for summary judgment in their favor. For the reasons which follow, we will enter an order granting the motions of Aqua Star, BP, Heritage and Bay State. The motions of Price Chopper and Golub for summary judgment as to Counts II, III and V will be denied. Judgment will, however, be entered in favor of all defendants as to Counts I and IV.

 DISCUSSION

 Summary judgment standard

 Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)

 
...The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

 Celotex v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing...that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 477 U.S. at 323 and 325.

 Issues of fact are "'genuine' only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Material facts are those which will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988).

 The salmon which plaintiff purchased was divided into seven segments. Plaintiff consumed two of the seven pieces of fish. After she became ill, she submitted two of the remaining segments to the Pennsylvania Department of Agriculture (the department) for testing. *fn4" The department tested only for spoilage. The results were negative. After testing the fish, the department discarded the samples provided to it.

 Three segments remained. Those segments were sent to Dr. Yoshitsugi Hokama Ph.D. at the University of Hawaii to test for the presence of the ciguatera toxin. A test for the presence of the toxin had only recently been developed by Dr. Hokama. Prior to that time, ciguatera poisoning had been an intractable problem in the tropic regions because there was way to test for the presence or absence of the toxin in fish.

 The salmon samples sent to Dr. Hokama tested positive for the presence of the ciguatera toxin. *fn5" Dr. Hokama did not test the salmon to determine the species. The remainder of the fish was stored in a freezer at the University of Hawaii. A power outage on March 24, 1994 caused the freezer to shut down. As a result, the remainder of the fish spoiled and was discarded. All that remained in Dr. Hokama's possession were two lipid extracts.

 The extracts were sent to defendants' expert, Dr. Daniel G. Baden, for testing and analysis. One of the extracts, defendants allege, was found by Dr. Baden to be spoiled and unsuitable for any testing. The remaining extract was tested for the presence of ciguatera toxin. Evidence of the toxin was found. Defendants maintain, however, that due to the minuteness of the sample provided, their expert was unable to determine the concentration of the toxins present, a key factor, they contend, in determining the ...


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