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Watkins v. Gwaltney of Smithfield, Ltd.

United States District Court, M.D. Pennsylvania

November 6, 2019

KENNETH WATKINS, Plaintiff,
v.
GWALTNEY OF SMITHFIELD, LTD. t/a GWALTNEY FOODS, et al., Defendants.

          MEMORANDUM OPINION

          Robert D. MARIANI United States District Judge.

         I. INTRODUCTION and PROCEDURAL HISTORY

         Two motions are pending before the Court in the above-captioned matter: Defendants' Motion for Summary Judgment Pursuant to Rule 56 (Doc. 30) and Plaintiff's Motion to Preclude Defendants' Exhibit Number #3 (Doc. 31-3) & Exhibit #4 (Doc. 31-4) to Defendants' Motion for Summary Judgment (Doc. 33).

         Plaintiff filed his Complaint in the Court of Common Pleas of Lackawanna County (Doc. 1-1) and Defendants removed the case to this Court on the basis of diversity of citizenship (Doc. 1 ¶ 8). Plaintiff alleges that he was injured when he bit into a hot dog which was manufactured by Defendants Gwaltney/Smithfield and purchased at Walmart. (Doc. 1-1 at ¶¶ 9-11.) The Complaint specifically states that "[w]hen Plaintiff bit into a hot dog, he immediately broke a few teeth and lacerated his tongue due to a sharp mental blade contained inside the hot dog." (Doc. 1-1 ¶ 11.) Plaintiff's Complaint contains four counts: Count I for Negligence against all Defendants; Count II for Negligence, Res Ipsa Loquitor, against all Defendants; Count III for Strict Liability; and Count IV for Breach of Warranty. (Doc. 1-1 at 6-13.)

         Defendants' Motion for Summary Judgment Pursuant to Rule 56 (Doc. 30) was filed on August 13, 2019. Plaintiffs Motion to Preclude Defendants' Exhibit Number #3 (Doc. 31-3) & Exhibit #4 (Doc. 31-4) to Defendants' Motion for Summary Judgment (Doc. 33) was filed on August 29, 2019.[1] The exhibits which Plaintiff seeks to preclude were filed in support of Defendants' Motion for Summary Judgment. They are the Affidavit of Crystal Robinson, Corporate Food Safety Manager and Division Manager of the Smithfield Packaged Meats Corp. (Doc. 31-3) and the Affidavit of Joseph Volansky, the Overnight Assistant Manager of the Taylor, Walmart, Store Number 4276 (Doc. 31 -4). For the reasons discussed below, the Court concludes that summary judgment is not warranted with the Affidavits considered in the analysis. Therefore, the Court will deny Plaintiff's Motion to Preclude Defendants' Exhibit Number #3 (Doc. 31-3) & Exhibit #4 (Doc. 31-4) to Defendants' Motion for Summary Judgment (Doc. 33) and will deny Defendants' Motion for Summary Judgment Pursuant to Rule 56 (Doc. 30).

         II. STATEMENT OF UNDISPUTED MATERIAL FACTS

         On April 14, 2015, Plaintiff purchased a three-pound package of Gwaltney "Great Hot Dogs" from Walmart. (Defendants' Statement of Material Facts, Doc. 32 ¶ 1; Plaintiffs Answer to Defendants' Statement of Material Facts, Doc. 35 ¶ 1.)[2] On or about April 18, 2015, Plaintiff prepared eight hot dogs for himself, two minor children, and his significant other. (Doc. 32 ¶ 2; Doc. 35 ¶ 2.) Plaintiff contends that, upon biting into the hot dog that he had prepared for himself, he bit into a metal blade that caused "serious injuries." (Doc. 32 ¶ 3; Doc. 35 ¶ 3.) Plaintiff did not take any depositions of Defendants and has not engaged an expert witness. (Doc. 32 ¶ 4; Doc. 35 ¶ 4.)

Q. When you picked up the hot dogs, did you look at the packaging?
A. I did look at the packaging.
Q. Did the packaging look in tact [sic]?
A. Yes.
Q. And when I say intact [sic], there were no tears or rips or punctures of the plastic wrapping of the hot dogs?
A. Well, when I picked up the pack - when I picked up the packet of [sic] the shelf, you know, I just turned it around, put it into the cart.
Q. But you didn't see any tears, rips, punctures?
A. No.

((Doc. 32 ¶ 5; Doc. 35 ¶ 5 (quoting Watkins Dep. 26:2-13 (Doc. 35 -1 at 8)).) Once the hot dog package was opened, Plaintiff did not have to dump any water out of the thawing bath. (Doc. 32 ¶ 8; Doc. 35 ¶ 8.) He verified that he looked at the hot dogs as he was putting them in the buns and did not see anything unusual about them. (Doc. 32 ¶ 9; Doc. 35 ¶ 9.) When asked whether he saw anything protruding or anything that would indicate there was something imbedded in the hot dog, he responded "I didn't look at the hot dog, I just put them on the buns.... I just put them on the bun and ate the hot dog." (Id.) Plaintiff denied the use of any knives in the cooking of the hot dogs. (Doc. 32 ¶ 11; Doc. 35 ¶ 11.)

         Regarding his injury, Plaintiff testified that he was injured with his first bite of the hot dog and he broke his dentures and cut his tongue. (Doc. 32 ¶ 10; Doc. 35 ¶ 10.) Plaintiff went to the emergency room to have his tongue examined and he testified about the length of time it took to heal.[3] (Doc. 32 ¶ 12; Doc. 35 ¶ 12.) Plaintiff had a blood panel test to determine exposure to blood borne pathogens which came back negative. (Doc. 32 ¶ 13; Doc. 35 ¶ 13.)

         The blade fragment at issue measures .85 inches (21.50 MM) in length and .4 inches (10.16 mm) at the widest spot. (Doc. 32 ¶ 14; Doc. 35 ¶ 14.)

         Crystal Robinson is the Corporate Food Safety Manager and Division Manager of Smithfield Packaged Meats Corporation in Kinston, North Carolina. (Doc. 32 ¶ 16; Doc. 35 ¶ 16.) She stated in a sworn affidavit that the production of the Gwaltney "Great Hot Dogs" includes the following steps:

First, Smithfield receives mechanically separated chicken at the Kinston processing plant, which is then placed into a blender utilizing a 1/8 inch grinding plate in order to achieve a 1/8 inch grind of the meat while blending it with a collagen gel. The hot dogs are then formed and go through a pre and post drying process. The hot dogs are then robot packaged and x-rayed to detect any foreign objects, including metals, as little as .8mm or larger in size. While the hot dogs are in their sealed package they are water cooked. Robots then place the cooked hot dogs in boxes and mechanically palletize them. Once boxed, the hot dogs are ready for shipment.
Due to the above stated manufacturing process, if a foreign object were in the processed hot dogs, in order to miss detection, it would have to necessarily both be 1.) less than .8 mm in size; and 2.) not observed via post - batch inspection of the 1/8 inch grinding plate.

(Doc. 32 ¶ 18; Doc. 35 ¶ 18 (quoting Robinson Aff: ¶¶ 4-7 (Doc. 31-3 at 2-3)).) The metal fragment at issue is larger in length and width than .8mm. (Doc. 32 ¶ 15; Doc. 35 ¶ 15.)

         Joseph Volansky, is Walmart's Overnight Assistant Manager and attested to being familiar with Walmart's inventory process. (Doc. 32 ¶ 19; Doc. 35 ¶ 19.) He provided a sworn affidavit in which he attested that,

upon receipt of the hot dogs from the manufacturer, the Gwaltney "Great Hot Dogs" are unpackaged with a box cutter and the product would be placed in coolers on the store floor. Mr. Volansky . . . attest[ed] to having provided a number of box cutter blades to the ...

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