"It Must Be Something I Ate", 0313 SCBJ, SC Lawyer, March 2013, #3

• Author: Amy Neuschafer and Charles Appleby

"It Must Be Something I Ate"

2013 #3

South Carolina Bar Journal

March, 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Causation in Food Liability Cases

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Amy Neuschafer and Charles Appleby

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Have you ever received the unpleasant surprise of a foreign substance in your food? Or woken up the morning after a meal feeling sick and thought, "It must be something I ate"? Many food liability cases undoubtedly begin with this very thought. A common theme among food liability cases is the importance of having sufficient proof that the adulterated food proximately caused the alleged illness or damages. In fact, the outcome in a food liability case often depends on having sufficient proof of causation.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0South Carolina Food and Cosmetic Act and negligence

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The South Carolina Food and Cosmetic Act is intended to protect the consumer from adulterated or misbranded food and cosmetics.¹ Under the Act, a food is deemed to be adulterated under a variety of circumstances, including if it contains any poisonous or harmful substance that makes it injurious to health or if it contains any diseased, contaminated, filthy, putrid or decomposed substance.² Any entity, such as a restaurant or retailer, violates the Act if it, inter alia, manufactures, sells, delivers, holds or offers for sale any adulterated food; adulterates any food; or receives in commerce any adulterated food.³

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Proof of a violation of the South Carolina Food and Cosmetic Act constitutes negligence per se and supports recovery of damages if the violation proximately caused or contributed to the plaintiff's injury⁴ A plaintiff is required to show negligence with reasonable certainty, not through mere conjecture. Negligence cannot be proven through the doctrine of res ipsa loquitur^[5] Accordingly, whether alleging negligence based on violation of the Act or another theory, to prevail on a negligence claim arising out of unwholesome food, the plaintiff must prove the food in question was unfit and that it caused his/her illness.⁶

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The central question in food liability cases therefore becomes: "Is it really something you ate"?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Proving causation

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Causation is proved by establishing the plaintiff's injury would not have occurred "but for" the defendant's negligence.⁷ "It is not sufficient that the malady in question 'possibly' or 'could have' or 'might have' resulted in the injury."⁸ Professor David G. Owen aptly notes the importance of establishing causation in his treatise on product liability law:

In addition to showing that a particular food item was defective, the plaintiff must also link the defective food product to the harm. In many cases, the causal link between the defective foodstuff and a plaintiff's harm is undisputed, as when the plaintiff immediately is injured or sickened from consuming food that clearly is defective, as a sirloin steak containing the tip end of hypodermic needle, or a chili dog containing a cockroach. But if the connection between defective food or drink and a person's illness is not self-evident, as often is the case, reliable expert testimony may be required to establish the causal link between the defect and the harm.⁹

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Expert testimony is not always necessary to prove causation in an unfit food case.^[10]In Miller v. Atlantic Bottling Corp., the plaintiff allegedly became ill after drinking a bottle of soda containing a harmful foreign substance. The plaintiff testified she bought the soda, drank a few swallows, and immediately noticed the soda had a "vile smell and taste."^[11]She then noticed an unidentified foreign substance in the bottom of the bottle. She immediately began to feel nauseated, her throat and chest hurt, and her mouth began to water. The defendant contended expert testimony was necessary to establish the substance caused the plaintiff's illness. In rejecting this argument, the court recognized that "in many instances expert medical evidence would be required to determine whether an illness resulted from a particular act."¹²

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0However, the court reasoned expert testimony was not required to establish the foreign substance most probably caused the plaintiff's illness where she became violently ill immediately after consuming the bottled drink containing the "vile smelling and tasting, and revolting foreign substance."¹³ In declining to require expert testimony regarding causation, the Miller court clearly took into account the obvious...