March 7, 2014
MICHELLE GAPSKY Appellant
RTM ACQUISITION COMPANY, LLC, T/D/B/A ARBY'S RESTAURANT Appellee
Appeal from the Order January 4, 2013 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-11-005369
BEFORE: PANELLA, J., ALLEN, J., and STRASSBURGER, J. [*]
Appellant, Michelle Gapsky, appeals from the order entered January 4, 2013, by the Honorable W. Terrence O'Brien, Court of Common Pleas of Allegheny County, which entered summary judgment in favor of Appellee, RTM Acquisition Company, LLC, t/d/b/a Arby's Restaurant (Arby's). We affirm.
Gapsky initiated this action for personal injuries allegedly sustained due to food poisoning. Gapsky alleges that between 3 and 4 p.m. on August 16, 2009, she purchased and consumed a chicken sandwich from an Arby's restaurant located in Ashtabula, Ohio. Complaint, 3/21/11, at ¶ 6. At approximately 5 a.m. the following morning, Gapsky awoke with severe abdominal pain and "constant[, ] unrelenting diarrhea." Id. at ¶ 7. Several days later, on August 21, 2009, Gapsky sought medical treatment at Suburban General Hospital where she was hospitalized for five days and diagnosed with "salmonella poisoning, gastroenteritis, colitis, hypopotassemia, and iron deficiency anemia." Id. at ¶ 8.
On March 21, 2011, Gapsky filed a Complaint alleging a cause of action against Arby's sounding in negligence and strict liability. In the midst of discovery, on September 7, 2012, Arby's filed a motion requesting summary judgment in its favor, on the basis that Gapsky had failed to establish that the chicken sandwich was defective or that her consumption of the sandwich was the cause of her salmonella diagnosis several days later. Following a hearing, the trial court granted Arby's motion for summary judgment and dismissed Gapsky's Complaint with prejudice. See Order, 1/4/13. This timely appeal followed.
On appeal, Gapsky raises the following issues for our review:
1. Did the trial court err in granting summary judgment on the basis that [Gapsky] cannot establish the requisite causation between consumption of the chicken sandwich purchased from [Arby's] and the onset of salmonella poisoning that required her to be hospitalized for five days?
2. Did the trial court err in holding [Gapsky's] evidence to be equivocal and thus was not sufficient to establish causation?
Appellant's Brief at 3.
We review a challenge to the entry of summary judgment as follows:
[We] may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.
In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will review the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.
E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa.Super. 2013) (citation omitted).
"In Pennsylvania, a plaintiff suing in tort, be it in negligence or … in strict liability … must prove causation, i.e., the requisite causal connection between the defendant's wrongful act (or, as here, the defect in the product) and his injuries." Reott v. Asia Trend, Inc., 55 A.3d 1088, 1103 (Pa. 2012) (citation omitted).
To prove causation, a demonstration that the breach of duty was both the proximate cause and actual cause of injury [is] required. It is not sufficient ... that a negligent act may be viewed, in retrospect, to have been one of the happenings in the series of events leading up to an injury. Even if the requirement of actual causation has been satisfied, there remains the issue of proximate or legal cause. The determination of proximate cause is primarily a problem of law and must, as a threshold matter, be determined by the judge and it must be established before the question of actual cause is put to the jury.
Eckroth v. Pennsylvania Elec., Inc., 12 A.3d 422, 427-428 (Pa.Super. 2010) (internal quotes and citations omitted), appeal denied, 610 Pa. 450, 21 A.3d 678 (2011).
In its Rule 1925(a) opinion, the trial court explained its reasons for entering summary judgment in Arby's favor as follows:
The only expert opinion produced by plaintiff consists of a consultation report by a physician who opined that plaintiff[']s "story seems consistent with an infestation of salmonella GI tract infection secondary to her consumption of undercooked foods at a local fast food restaurant." The report contains no other reference to the cause of plaintiff[']s illness. This opinion cannot establish a genuine issue of material fact as to causation because it is not rendered with the requisite degree of certainty. See Grif[f]in v. UPMC, 950 A.2d 996 (Pa.Super. 2008); and McCann v. Amy Joy Donut Shops, 472 A.2d 1149 (Pa.Super. 1984). To find liability against defendant, the jury would have to exclude the possibility that her lunch the day before she ate at Arby's caused her illness. This would constitute rank speculation. The food poisoning cases cited by plaintiff are inapposite because they all involved expert testimony linking those plaintiffs' illnesses with a defendant's product.
Trial Court Opinion, 1/4/13 at 3 (footnotes omitted).
On appeal, Gapsky argues that the treating physician's note was permissible circumstantial evidence of both causation and product defect, sufficient to withstand the entry of summary judgment. Appellant's Brief at 8-9. Gapsky correctly asserts that a plaintiff may establish a product defect through circumstantial evidence:
Such circumstantial evidence includes (1) the malfunction of the product; (2) expert testimony as to a variety of possible causes; (3) the timing of the malfunction in relation to when the plaintiff first obtained the product; (4) similar accidents involving the same product; (5) elimination of other possible causes of the accident; and (6) proof tending to establish that the accident does not occur absent a manufacturing defect.
Wiggins v. Synthes (USA), 29 A.3d 9, 15 (Pa.Super. 2011) (citation omitted). Arby's counters, however, that Gapsky has presented no evidence that the sandwich was defective or caused her salmonella poisoning, but rather "simply [relies] on the temporal relationship between her consumption of the chicken sandwich and her illness." Appellees' Brief at 5.
The treating physician's note in question, prepared by Sunil V. Bhat, M.D., indicates a "24-year-old female whose story seems consistent with an infestation of Salmonella GI tract infection secondary to her consumption of undercooked foods at a local fast food restaurant." Although Gapsky relies upon this note as evidence that the chicken sandwich she consumed at Arby's caused her subsequent salmonella poisoning, we agree with the trial court that the physician's equivocal attribution of Gapsky's symptoms to undercooked food in the physician notes prepared for treatment purposes was insufficient to constitute an opinion on causation.
In Polett v. Public Communications, Inc., 83 A.3d 205, 220 (Pa.Super. 2013), this Court previously determined that a treating physician's office notes reported only a temporal connection between the plaintiff's use of an exercise bike and her subsequent knee injuries, and did not constitute causation opinions personally developed in the normal course of treatment. In that case, we rejected the trial court's use of the treatment notes as causation opinions, where the plaintiff had failed to establish that the treating physician undertook any effort to evaluate other causes or form opinions while initially treating plaintiff's injuries. Id.
We find Gapsky makes a similar mischaracterization in this case. There is no indication that Dr. Bhat did anything other than diagnose and treat Gapsky's symptoms. The notes do not reveal that the treating physician ever tested the chicken sandwich for the presence of salmonella or attempted to evaluate the cause of Gapsky's ailments by any other means. Without any ancillary evidence that the physician undertook to ascertain the cause of Gapsky's salmonella poisoning, we cannot agree that the physician notes constitute a causation opinion. Subsequently, we do not find the office notes alone sufficient to establish either causation or a product defect.
Gapsky offers no other evidence or testimony – expert or otherwise – to support her claim that her consumption of a chicken sandwich at Arby's caused her salmonella poisoning. Based upon the complete dearth of causation evidence of record, we agree with the trial court that Gapsky's claims of negligence and strict liability invite pure speculation as to what caused her ailment. Accordingly, we affirm the trial court's entry of summary judgment in Arby's favor.
Strassburger, J., files a dissenting memorandum.
I respectfully dissent.
In my view, the deposition testimony of Appellant, together with the report of her treating physician, provides sufficient circumstantial evidence of both product defect and causation to survive summary judgment.