Haake v. Safeway et al
Filing
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ORDER Granting In Part And Denying In Part Third-Party Defendant Morinaga Nutritional Foods, Inc.'s Motion For Summary Judgment 38 . Signed by JUDGE J. MICHAEL SEABRIGHT on 5/16/11. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ANNETTE HAAKE,
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Plaintiff,
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vs.
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SAFEWAY -- (Kihei Branch),
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Representative for MORI NU TOFU
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FIRM (Silken) TOFU COMPANY and )
their hires insurance company, and
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JOHN DOES 1-10, JANE DOES 1-10, )
DOE CORPORATIONS 1-10, DOE
)
PARTNERSHIPS 1-10, and DOE
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VENTURES 1-10 and DOE
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GOVERNMENTAL ENTITIES 1-10, )
inclusive Defendants,
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Defendants.
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________________________________ )
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SAFEWAY INC., a Delaware
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corporation,
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Defendant and Third-Party )
Plaintiff,
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vs.
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MORINAGA NUTRITIONAL FOODS, )
INC.; JOHN DOES 1-10, JANE DOES )
1-10, AND DOE ENTITIES 1-10,
)
)
Third-Party Defendants.
)
)
________________________________ )
CIVIL NO. 10-00126 JMS/KSC
ORDER GRANTING IN PART AND
DENYING IN PART THIRDPARTY DEFENDANT MORINAGA
NUTRITIONAL FOODS, INC.’S
MOTION FOR SUMMARY
JUDGMENT
ORDER GRANTING IN PART AND DENYING IN PART THIRD-PARTY
DEFENDANT MORINAGA NUTRITIONAL FOODS, INC.’S MOTION
FOR SUMMARY JUDGMENT
I. INTRODUCTION
On September 10, 2009, Plaintiff Annette Haake (“Plaintiff”) filed
this action in the Second Circuit Court of the State of Hawaii asserting claims
against Safeway Inc. (“Safeway”) and Morinaga Nutritional Foods, Inc.
(“Morinaga”) (named in the Complaint as Mori Nu Tofu Firm (Silken) Tofu
Company) (collectively, “Defendants”) for injuries and illness she asserts were
caused by “Mori-Nu” brand tofu that Morinaga produced and Safeway sold.
Safeway subsequently removed the action to this court, and also filed a Third Party
Complaint against Morinaga for indemnity, contribution, equitable subrogation,
and/or reimbursement.
Currently before the court is Morinaga’s Motion for Summary
Judgment on Plaintiff’s claims, which Safeway joins.1 Defendants argue, among
other things, that there is no evidence that Morinaga tofu caused Plaintiff’s
injuries, which she alleges include vomiting, diarrhea, holes in her stomach, and
kidney failure. Based on the following, the court GRANTS in part and DENIES in
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Morinaga also sought summary judgment on Safeway’s Third Party Complaint and
Safeway brought a Counter Motion for Summary Judgment. At the April 18, 2011 hearing,
however, the parties agreed to withdraw these arguments without prejudice to them being raised
in a stand-alone motion for summary judgment.
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part Morinaga’s Motion for Summary Judgment, with Plaintiff’s claims relating to
her injuries of feeling ill upon eating the tofu, stomach pain, and diarrhea
remaining.
II. BACKGROUND
A.
Factual Background
According to Plaintiff, on September 10, 2008, she purchased “Mori
Nu” brand tofu from the Kihei Safeway. See Doc. No. 39-3, Morinaga Ex. B at
H00002-3, 33. When she arrived home, she started to cook the tofu with some
onion, but was so hungry that she ate the tofu before it had a chance to heat up. Id.
at H000038. As she was eating the tofu, she began to feel ill, and she later suffered
diarrhea, felt a lot of pain, and believes that the tofu had maggots in it which
created holes in her stomach and caused a kidney infection and/or failure. Id. at
H00002-4.
Plaintiff subsequently contacted Safeway, demanding that Safeway
provide her contact information for Morinaga, send her to a doctor, and test the
tofu to determine what caused her symptoms. Id. at H000014, 41; Doc. No. 39-4,
Morinaga Ex. C at 005. Plaintiff did not, however, see a doctor on her own even
though she recognizes that “[o]ne of the most important things in treatment of
disease is knowing what you are treating.” Doc. No. 39-3, Morinaga Ex. B at
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H0000041. Rather, Plaintiff’s “guess” as to what caused her symptoms is that flies
laid eggs on the tofu. Id. at H000002-3. Plaintiff instead acted as her “own
doctor” by taking “natural antibiotics” and other home remedies for her symptoms.
Id. at H00005, 19.
B.
Procedural Background
On September 10, 2009, Plaintiff filed this action in the Second
Circuit Court of the State of Hawaii asserting claims against Safeway and
Morinaga for negligence, “criminal negligence,” gross negligence, negligent
infliction of emotional distress, and “unethical” behavior. Safeway subsequently
removed the action to this court, and also filed a Third Party Complaint against
Morinaga for “indemnity, contribution, equitable subrogation, and/or
reimbursement” for any judgment, expenses, costs and attorneys’ fees. See Doc.
No. 17 ¶ 7.
On February 4, 2011, Morinaga filed its Motion for Summary
Judgment on both Plaintiff’s and Safeway’s claims against it. On March 28, 2011,
Safeway filed a (1) Motion for Joinder in Part and Opposition in Part to
Morinaga’s Motion for Summary Judgment; and (2) Counter Motion for Summary
Judgment on its claims against Morinaga. Despite receiving a “Notice to Pro Se
Litigants” explaining her duties in responding to a motion for summary judgment,
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Doc. No. 36, Plaintiff failed to file an Opposition. On April 1, 2011, Morinaga
filed a Reply in support of its Motion for Summary Judgment and Opposition to
Safeway’s Counter Motion. On April 11, 2011, Safeway filed a Reply in support
of its Counter Motion.
A hearing was held on April 18, 2011. At the hearing, Morinaga and
Safeway agreed to withdraw their arguments and Motions as to Safeway’s claim
against Morinaga without prejudice. The court also put Plaintiff on notice that
although Morinaga did not specifically address causation as to each of Plaintiff’s
alleged injuries, pursuant to Federal Rule of Civil Procedure 56(f), the court would
sua sponte determine whether there is a genuine issue of material fact supporting
each injury. The court therefore granted Plaintiff leave to file an Opposition to
address and present evidence establishing that Morinaga’s tofu, and not some other
source, caused each of Plaintiff’s alleged symptoms, and that the tofu had maggots
that caused her symptoms. Plaintiff was again provided the court’s Notice to Pro
Se Litigants, explaining how to defend a summary judgment motion. Doc. No. 50.
Despite these express instructions, Plaintiff failed to file an Opposition by the
court’s May 6, 2011 deadline.
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III. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal
quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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247-48 (1986) (stating that a party cannot “rest upon the mere allegations or
denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor.” (citations omitted)).
IV. DISCUSSION
All of Plaintiff’s claims sound in negligence based on Plaintiff’s
assertion that she purchased and ate tofu made by Morinaga and sold by Safeway
which caused her to become ill. See generally Doc. No. 39-2, Morinaga Ex. A
(Complaint). Under Hawaii law, a plaintiff establishes a negligence claim by
proving:
1. A duty or obligation, recognized by the law, requiring
the defendant to conform to a certain standard of
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conduct, for the protection of others against unreasonable
risks;
2. A failure on the defendant’s part to conform to the
standard required: a breach of the duty;
3. A reasonably close causal connection between the
conduct and the resulting injury[;] and
4. Actual loss or damage resulting to the interests of
another.
Dairy Road Partners v. Island Ins. Co., 92 Haw. 398, 419, 992 P.2d 93, 114
(2000); see also Kaho’ohanohano v. Dep’t of Human Servs., 117 Haw. 262, 287
n.31, 178 P.3d 538, 563 n.31 (2008); Cho v. State, 115 Haw. 373, 379 n.11, 168
P.3d 17, 23 n.11 (2007).
As to the issue of causation, “[a]n actor’s negligent conduct is a legal
cause of harm to another if (a) his or her conduct is a substantial factor in bringing
about the harm, and (b) there is no rule of law relieving the actor from liability
because of the manner in which his or her negligence has resulted in the harm.”
Panion v. United States, 385 F. Supp. 2d 1071, 1090 (D. Haw. 2005) (quoting Doe
Parents No. 1 v. State of Hawaii, 100 Haw. 34, 85, 58 P.3d 545, 596 (2002)); see
also Taylor-Rice v. State of Hawaii, 91 Haw. 60, 69-70, 979 P.2d 1086, 1095-96
(1999). The first inquiry “contemplates a factual determination that the negligence
of the defendant was more likely than not a substantial factor in bringing about the
result complained of.” Panion, 385 F. Supp. 2d at 1090 (quoting Taylor-Rice, 91
Haw. at 74, 979 P.2d at 1100). In other words, “a defendant’s negligence need not
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have been the whole cause or the only factor in bringing about the harm. It was
enough that his or her negligence was a substantial factor in causing plaintiff’s
injuries.” Id. (quoting Taylor-Rice, 91 Haw. at 74, 979 P.2d at 1100).
Morinaga (and Safeway through joinder) argue that summary
judgment should be granted on all of Plaintiff’s claims because there is no
evidence establishing that Plaintiff actually purchased Mori-Nu tofu, much less
that Plaintiff’s consumption of this tofu caused any of her alleged injuries. The
court addresses these arguments in turn.
A.
Whether Plaintiff Purchased Mori-Nu Tofu
Morinaga argues that because Plaintiff has not produced a receipt or
the packaging from her purchase, she cannot establish that she actually purchased
Mori-Nu tofu. Viewing the evidence in a light most favorable to Plaintiff,
however, the court finds that there is a genuine issue of material fact whether
Plaintiff purchased Mori-Nu tofu. Plaintiff need not produce tangible evidence of
a receipt or packaging to establish that she purchased Mori-Nu tofu. Rather,
Plaintiff’s purchase of Mori-Nu tofu is within her personal knowledge and she has
established this fact through her interrogatory responses. See Doc. No. 39-3,
Morinaga Ex. B at H000002; see also Hardrick v. City of Bolingbrook, 522 F.3d
758, 761 (7th Cir. 2008) (reversing trial court’s refusal to consider the plaintiff’s
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interrogatory answers for summary judgment based on hearsay concerns because
the content of the answers would be admissible at trial); Fed. R. Civ. P. 33(c),
56(c).
B.
Whether Mori-Nu Tofu Actually Caused Each of Plaintiff’s Illnesses
Plaintiff asserts that as she was eating the tofu, she almost
immediately began to feel ill, and soon thereafter suffered diarrhea, felt a lot of
pain, and believes that the tofu had maggots in it which created holes in her
stomach and caused a kidney infection and/or failure. Id. at H00002-4. Morinaga
argues that Plaintiff has not established that the tofu actually caused her injuries
because she offers only speculation regarding what caused her symptoms and
because Plaintiff must present expert medical testimony to establish causation.
The court agrees with Morinaga in part.
In general,“[p]roximate causation of an injury must be proved and is
never presumed.” Dzurik v. Tamura, 44 Haw. 327, 329, 359 P.2d 164, 165 (1960).
Where “the trier of facts would be required to speculate and guess on too many
elements in the chain of causation,” summary judgment is appropriate. Id. (citation
and quotation signals omitted)); see also Haines v. Honolulu Shipyard, Inc., 125 F.
Supp. 2d 1020, 1031 (D. Haw. 2000) (“A party must set forth specific evidence to
demonstrate causation, and cannot rely on mere speculation or conjecture to avoid
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summary judgment.”). In comparison, “where there are conflicting inferences and
conclusions, it is the function of the trier of facts to select the one which it
considers most reasonable.” Dzurik, 44 Haw. at 329, 359 P.2d at 165.
To establish causation, a plaintiff may testify to those facts to which
she has personal knowledge. See Fed. R. Evid. 602; Ho v. Leftwich, 88 Haw. 251,
259, 965 P.2d 793, 801 (1998) (explaining that a lay witness can testify only
regarding her personal knowledge and that evidence regarding the relationship
between recovery and treatments must be established through expert medical
testimony). As a result, there are certain types of cases in which medical testimony
is necessary to establish causation, most notably in the medical malpractice cases.
See, e.g., Barbee v. Queen’s Med. Ctr., 119 Haw. 136, 158-59, 194 P.3d 1098,
1120-21 (Haw. App. 2008) (explaining that in general, “in a medical malpractice
case, a plaintiff must establish proximate or contributory causation through the
introduction of expert medical testimony”). Even in the medical malpractice area,
however, there are exceptions to this requirement, for example, “when the medical
condition is obvious or common in everyday life.” Id.; see also Craft v. Peebles,
78 Haw. 287, 298, 893 P.2d 138, 149 (1995) (discussing “common knowledge”
exception to the requirement that a plaintiff present expert medical testimony on
causation in a medical malpractice action).
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Applying these principles to each of Plaintiff’s alleged symptoms, the
court finds that a genuine issue of material fact exists regarding whether the tofu
caused Plaintiff’s immediate illness. Specifically, viewing the evidence in a light
most favorable to Plaintiff, she began to feel ill as she was eating the tofu, then laid
down and later woke up with diarrhea. See Doc. No. 39-3, Morinaga Ex. B at
H000038. There is no evidence that she ate anything else other than tofu (although
she cooked the tofu with other items) and given the immediate reaction she had
from eating the tofu, this evidence supports the reasonable inference that eating the
tofu caused her to become ill. Further, contrary to Defendants’ assertions that
medical testimony is necessary, that the tofu caused these symptoms is within the
common knowledge of a lay person. Under these circumstances, medical
testimony is not necessary to support the inference that tofu caused these
symptoms where an individual has eaten only tofu and then suffers an upset
stomach and diarrhea.
The court agrees with Defendants, however, that medical testimony is
necessary to support Plaintiff’s allegations that the tofu caused her later alleged
injuries beyond her diarrhea and immediate sickness. As an initial matter, Plaintiff
has only her bare testimony that she has holes in her stomach, suffered a kidney
infection, and has kidney failure. These are not facts that are subject to common
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knowledge -- Plaintiff needs medical evidence to substantiate these allegations.
See, e.g., Ho, 88 Haw. at 259, 965 P.2d at 801 (explaining that a lay witness can
testify only regarding her personal knowledge and that evidence regarding the
relationship between recovery and treatments must be established through expert
medical testimony); Dzurik, 44 Haw. at 341, 359 P.2d at 171 (affirming trial court
decision where plaintiff had not established through medical testimony that vehicle
accident, and not other possible factors, caused his injuries). Plaintiff, however,
filed no opposition presenting evidence explaining how the tofu may have caused
these symptoms.
Further, Plaintiff has failed to link the tofu to the cause of these
injuries. Rather, the best Plaintiff offers is an unsupported theory that the tofu had
maggots which caused her illness. See Doc. No. 39-3, Morinaga Ex. B at H000002
(“Likely chance the tofu company . . . had a problem of fl[ies] -- maggot laying
fl[ies] in this case”), at H000035 (“I believe You (Morinaga Nutritional Foods,
Inc.) had a fly, the type of fly which lays maggots. . . .”). But there is no evidence
whatsoever supporting this theory -- Plaintiff did not offer any evidence
establishing that there were any maggots in the tofu, and she offers no evidence of
how maggots would necessarily cause the symptoms she complains of. Indeed,
even Plaintiff acknowledges that testing of her food would be necessary to
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determine causation. See id. at H000041 (“One of the most important things in
treatment of disease is knowing what you are treating. I kept asking Safeway to
please test the food which, I saved for them for a whole week.”). As a result,
Plaintiff has failed to establish a genuine issue of material fact that any of her
injuries beyond her immediate upset stomach and diarrhea were caused by the tofu.
In sum, the court GRANTS in part and DENIES in part Morinaga’s
Motion for Summary Judgment. Although a question of fact exists regarding
whether the tofu caused Plaintiff’s immediate upset stomach and diarrhea, Plaintiff
has failed to establish a genuine issue of material fact that the tofu caused any of
her later symptoms and/or illness. As a result, to the extent Plaintiff asserts any
claims against Safeway for its failure to provide Plaintiff contact information for
Morinaga, send her to a doctor, and/or test the tofu to determine what caused her
symptoms, such claims also fail because Plaintiff has not established any injury
resulting from Safeway’s responses to Plaintiff.
V. CONCLUSION
Based on the above, the court GRANTS in part and DENIES in part
Morinaga’s Motion for Summary Judgment. The court further STRIKES
Plaintiff’s claims for “criminal negligence” and “unethical behavior,” as they are
not cognizable claims in law. As a result, remaining are only Plaintiff’s claims for
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negligence, gross negligence, and negligent infliction of emotional distress related
to her illness and discomfort felt while eating the tofu, as well as her upset stomach
and diarrhea experiences shortly thereafter.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 16, 2011.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Haake v. Safeway Inc. et al., Civ. No. 10-00126 JMS/KSC, Order Granting in Part and Denying
in Part Third Party Defendant Morinaga Nutritional Food, Inc.’s Motion for Summary Judgment
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