GQ Corner

Q. While clocked in and on a permitted lunch break, the Claimant consumed a spicy sandwich, mac and cheese and fries. She experienced gastric illness about an hour after consumption, and symptoms worsened over time. Medical treatment was sought, and she was ultimately diagnosed with food poisoning. Is this compensable?

A. More than likely not, but it will depend ultimately on the strength of her medical evidence. As a general rule, it is virtually impossible to link food poisoning to a specific food item within reasonable medical probability absent testing of the food item to reveal some kind of pathogen.  See BMLA, Inc., dba Murphy’s Deli v Jordan, (Tex. Ct. App.—Houston [1^st Dist], No. 01-19-00568-CV), decided November 18, 2021. In that case, the Houston Court of Appeals [1^st District] concluded that no legally sufficient causation evidence supported a judgment awarding $400,000 in damages to a plaintiff who alleged she suffered food poisoning after eating a tainted kolache. The court concluded that the testimony of the plaintiff’s expert was conclusory and, as such, would not support the judgment.

Jordan had a scheduled appointment with her doctor. After completing her lab work, and while waiting for her doctor to arrive, she went to Murphy’s Deli located on the first floor of the building. Jordan ordered a sausage and cheese kolache and a kiwi strawberry Snapple to drink. The kolache was in a glass display case. Jordan took the kolache and the Snapple back upstairs to her doctor’s office to eat in the waiting room. Jordan testified that the kolache “tasted a little off,” but she ate all of it. Less than an hour later, Jordan had “really bad stomach cramps” and started to feel nauseated. She had at least three or four episodes of diarrhea, and her stomach “was continually hurting.”

Jordan checked with the receptionist several times to see if her doctor had arrived. The last time she checked with the receptionist, Jordan fainted. As she fell, her face hit the receptionist’s desk, which was a granite or stone countertop. Jordan was taken to the emergency room. Jordan had several broken teeth and a broken jaw, requiring multiple dental procedures and surgeries to address her injuries. At the time of trial, she still experienced headaches and neck pain related to her injuries.

Jordan sued the deli and others under multiple theories of negligence and strict liability. The jury awarded $400,000 in damages. The deli appealed. The central issue in the deli’s appeal was whether legally sufficient causation evidence supported the judgment. The court held the evidence was legally insufficient to support the judgment.

The court of appeals observed that no testing had been performed on the kolache that sickened Jordan. Nor was there any testing performed on any other kolaches from Murphy’s Deli near the time of Jordan’s illness. Murphy’s Deli had received no customer complaints regarding food poisoning near the time that Jordan purchased her kolache, and Murphy’s Deli had not received any health code violations. And while Jordan was treated at the hospital for her illness, Jordan did not undergo any testing to determine what pathogen had caused her symptoms.

The court held that  laypersons did not have the common knowledge and experience to adequately establish the cause of Jordan’s gastroenteritis. Therefore, the court held that Jordan was required to prove medical causation through expert testimony. Jordan offered the testimony of Dr. Hasan, her treating physician.

Dr. Hasan had to supply proof that consuming the kolache was—to a reasonable medical probability—the cause of Jordan’s illness. The court concluded that he had not done so. At best, the court wrote, Dr. Hasan testified that most gastroenteritis is caused by food, and the kolache could have caused her illness. This was not enough.

To constitute evidence of medical causation, an expert opinion must rest on reasonable medical probability. Reasonable probability is determined by the substance and context of an expert opinion, rather than the use of any particular words. Id. Where the substance of an expert’s testimony establishes only a mere possibility, rather than a reasonable probability, of causation, it is no evidence of causation. See Schaefer v. Tex. Empl’rs’ Ins. Ass’n, 612 S.W.2d 199, 204–05 (Tex. 1980).

The court wrote that Dr. Hasan had supplied no testimony that could bridge this analytical gap. It was undisputed that Jordan consumed the kolache within an hour of falling ill at her cardiologist’s office. Although Dr. Hasan agreed that it was “a possibility” that “she had contracted gastroenteritis and experienced a rapid onset within an hour,” he did not testify that this was a medical probability. According to Dr. Hasan, the latency period for gastroenteritis can be as long as 72 hours. Dr. Hasan did not testify that the kolache was more likely to have caused her illness than other foods that she consumed within that time period. Indeed, he made no attempt to rule out other foods that she had eaten within the incubation period.

Unable to rule out other food sources of her illness, Jordan implicated the kolache on the ground that it tasted “off” or “dubious.” There is no expert testimony that would permit the jury to find medical causation based on the kolache’s taste. Although Dr. Hasan testified that a virus could be present on a food item and infect a person who eats it, he did not testify that the presence of a virus would affect the kolache’s taste.

Jordan relied on the following testimony from Dr. Hasan to supply the necessary causal connection between the kolache and Jordan’s illness:

Q. Okay. Now, seeing as Ms. Jordan had not eaten anything prior [to] the kolache in eight hours and then she eats a reheated kolache and then in about an hour falls ill, is it possible that she had contracted gastroenteritis from exposure to the staph toxin?

A. That’s possible.

Q. If we’re able to rule out other sources of foodborne illness from other foods that she had eaten the previous day, do you think more likely than not the rapid onset of her symptoms following eating the kolache was caused by this particular type of pathogen in the kolache?

A. I would agree with that.

The court held this testimony was irrelevant for two reasons. First, the exchange was a hypothetical question about gastroenteritis caused by staphylococcus toxin. Dr. Hasan testified that staphylococcus is a type of bacteria, not a virus. Dr. Hasan diagnosed Jordan with viral gastroenteritis, not bacterial gastroenteritis. No evidence was presented that Jordan had a staphylococcus infection, only speculation that this could be possible. Consequently, this line of questioning regarding the staphylococcus pathogen did not create a legally sufficient basis for the jury’s verdict. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (“Opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact ‘more probable or less probable.’”) (quoting Tex. R. Evid. 401).

Second, the court noted that Dr. Hasan had not ruled out any other food sources, much less every other food source that Jordan consumed the previous day. No witness testified to every meal that Jordan consumed during the entire incubation period. Jordan became ill on Monday morning, but the record contains no evidence about what she ate before dinner on Saturday or throughout the day on Friday.

Alternatively, Jordan argued that it was enough for the jury to find that the kolache contained a “pure toxin” that sickened her. The court disagreed. Dr. Hasan had diagnosed Jordan as having viral gastroenteritis, not as having consumed a “pure toxin.” Although Dr. Hasan suggested at one point that viral gastroenteritis could “appear toxic,” he ultimately distinguished between gastroenteritis from ingesting “a possible toxin or a virus or a potential bacteria.” Later, when questioned specifically about what toxins could cause viral gastroenteritis, he only referred to bacterial causes:

Q. Okay. If staphylococcus is not viral, which we’ve established?

A. Correct.

Q. All right. Then the staphylococcus can be—cannot be the cause of her viral gastroenteritis?

A. Right.

Q. Okay. Now, Doctor, what other toxins could you tell us would cause viral gastroenteritis?

A. So you can have a—the most common one is a shiga toxin. So you can get that from shigella. Salmonella can also produce a toxin. E. coli can also produce a toxin. So these are toxins.

Significantly, Dr. Hasan testified unequivocally that “E. coli, salmonella, shigella, things of that nature” cause bacterial gastroenteritis. The court wrote that these pathogens are not viruses. It concluded that Dr. Hasan had never identified a single virus that would create a toxin. The court concluded that the doctor’s opinion was insufficiently founded on the facts of the case.

Unable to identify a single viral source of “toxins” in food, Dr. Hasan’s suggestion that Jordan was sickened by a “toxin directly” is pure ipse dixit. “An expert’s simple ipse dixit is insufficient to establish a matter; rather, the expert must explain the basis of his statements to link his conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999). When the expert does not explain his factual basis, the testimony is conclusory, and the judgment cannot stand. See City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009). The Texas Supreme Court has made it clear that “a claim will not stand or fall on the mere ipse dixit of a credentialed witness.” Id. (quoting Coastal Transp. Co., 136 S.W.3d at 232). Nothing more exists here.

The Court of Appeals ultimately held that Jordan’s evidence was legally insufficient, and they reversed and rendered in favor of BMLA.