Wingate v. Barkman Honey, LLC et al

Filing 86

MEMORANDUM AND ORDER granting 73 Motion for Summary Judgment. Judgment is to be entered in favor of Defendant. Plaintiff's Motion to Certify Class 82 is denied as moot. Signed by District Judge Holly L. Teeter on 1/6/2021. (mls)

Case 5:19-cv-04074-HLT-JPO Document 86 Filed 01/06/21 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAVE WINGATE,
Plaintiff,
v.

Case No. 5:19-cv-04074-HLT-JPO

BARKMAN HONEY, LLC,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Dave Wingate has sued Defendant Barkman Honey alleging fraudulent
misrepresentation and violation of the Illinois Consumer Fraud Act. The claims arise out of
Plaintiff’s purchase of a bottle of Defendant’s “raw” honey, which Plaintiff contends did not meet
that distinction. Defendant moves for summary judgment on both claims, arguing that Plaintiff has
no evidence of deception or reliance. As discussed below, the Court finds that Plaintiff has not
come forward with evidence demonstrating that the honey he purchased did not meet his definition
of “raw.” Accordingly, the Court grants Defendant’s motion.
I.

BACKGROUND1
Plaintiff bought a bottle of Naked Wild Great Lakes Honey in the fall of 2018 at a store

near his home in Illinois. Plaintiff generally purchases raw honey because it typically hasn’t been
modified by the manufacturer and is “more pure to nature.” In terms of the benefits of raw honey,
Plaintiff believes it can be used for sore throats or coughs or as a substitute for processed sugars.
A picture of a bottle of “Naked Wild Honey” was presented at Plaintiff’s deposition, and the

1

For purposes of summary judgment, the Court discusses only the facts that are uncontroverted. The Court also
notes that some of Plaintiff’s additional facts are purportedly supported by evidence cited to but not always
included in the exhibits. Where factual assertions are not properly supported, or would not be admissible, the Court
does not consider them. See Fed. R. Civ. P. 56(e); D. Kan. Rule 56.1(b)(2), (d).

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bottle’s label says that it is “gently processed to retain natural pollen and enzymes.” But Plaintiff
cannot say whether the bottle pictured is the bottle of honey he bought.
After purchasing, Plaintiff later learned about 5-hydroxymethylfurfural (“HMF”) from his
attorney. HMF is an organic compound in honey. See Doc. 74 at 5. HMF levels in honey only
increase over time, even at room temperature. When Plaintiff bought the honey, he did not have
any understanding that “raw” honey had anything to do with HMF levels. But Plaintiff later
testified that he believes that “raw” honey must have an HMF level of 40 or less at the time of
purchase.2
After the conversation with his attorney about HMF in honey, which occurred a couple of
months after Plaintiff bought the honey, Plaintiff gave his bottle of honey to his attorney. Plaintiff’s
attorney relies on Dr. James Gawenis to process honey samples. Dr. Gawenis’s testing data is
analyzed by a German company using protected methods to determine HMF levels. Dr. Gawenis
does not know whether any of the samples tested came from the bottle Plaintiff purchased. Plaintiff
does not personally know the HMF level of the honey he purchased.
Plaintiff’s attorney has submitted a declaration stating that he sent Plaintiff’s bottle of
honey to Dr. Gawenis, and that “[o]ne of the tests made by Dr. Gawenis was to determine the level
of HMF in the product.” Doc. 75-7 at 2. According to Plaintiff’s attorney, the test results “returned
an HMF level of 147mg/kg which is over three times the limit for denaturing enzymes in raw
honey.” Id. Although Plaintiff has also submitted an “Analysis Report” from the German company,
Doc. 75-8, that report has not been authenticated, nor does it clearly identify any particular results
as being for Plaintiff’s bottle of honey.

2

The amended complaint also states that the “generally understood definition of raw [is] an HMF value of 40 or
less.” See Doc. 53 at 10.

2

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According to Defendant’s corporate representative, heat can have an impact on enzymes
in honey. Defendant pre-heats its honey at a temperature of 100 to 110 degrees for one to two days.
The honey is then heated at 122 to 135 degrees for 12 to 24 hours. Honey can be stored in
Defendant’s warehouse for weeks or even years. But it is not clear whether this was the process
Defendant used in 2018 for the honey that Plaintiff purchased.3
II.

STANDARD
Summary judgment is appropriate if there is “no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party
bears the initial burden of establishing the absence of a genuine issue of fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to demonstrate that
genuine issues remain for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
585-87 (1986). To carry this burden, the nonmovant “may not rely merely on . . . its own
pleadings.” Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) (internal quotations and
citations omitted). “Rather, it must come forward with facts supported by competent evidence.”
Id. In applying this standard, courts view the facts and any reasonable inferences in a light most
favorable to the non-moving party. Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th
Cir. 1994). “An issue of material fact is genuine if a ‘reasonable jury could return a verdict for the
nonmoving party.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

3

Plaintiff only refers generally to Defendant’s practices, without stating when these practices were in effect. The
testimony cited by Plaintiff does not include any information about whether the practices described are current
practices or whether they were in place in 2018 when Plaintiff purchased his honey. Although Defendant has not
disputed Plaintiff’s additional facts on these points, it notes that the questions were directed at Defendant’s current
practices, not its practices in 2018. Doc. 84 at 11. Neither party has provided the Court with the portion of the
deposition transcript that would clarify this issue.

3

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III.

ANALYSIS
In a prior order, the Court granted Defendant’s motion to dismiss Plaintiff’s claims for

negligence, violation of the Kansas Consumer Protection Act, and fraudulent concealment. Doc.
37 at 1.4 Plaintiff’s claim for fraudulent misrepresentation survived. Id. at 11-13. Plaintiff later
amended his complaint and added a claim under the Illinois Consumer Fraud Act (“ICFA”), 815
ILCS § 505/2. Doc. 53 at 15-18. Thus, Plaintiff’s remaining claims are for fraudulent
misrepresentation and a claim under the ICFA.
Fraudulent misrepresentation requires: “(1) a false statement of material fact; (2)
defendant’s knowledge that the statement was false; (3) defendant’s intent that the statement
induce the plaintiff to act; (4) plaintiff’s reliance upon the truth of the statement; and (5) plaintiff’s
damages resulting from reliance on the statement.” Connick v. Suzuki Motor Co., 675 N.E.2d 584,
591 (Ill. 1996).5 “To recover on a claim under the [ICFA], a plaintiff must plead and prove that
the defendant committed a deceptive or unfair act with the intent that others rely on the deception,
that the act occurred in the course of trade or commerce, and that it caused actual damages.”
Vanzant v. Hill’s Pet Nutrition, Inc., 934 F.3d 730, 736 (7th Cir. 2019).
Ultimately, Plaintiff’s fraudulent-misrepresentation and ICFA claims both require a
showing of reliance on a false statement or deceptive act. Defendant argues Plaintiff can show
neither because Plaintiff limits his definition of “raw” honey to a certain HMF level, and he has
no evidence of HMF level, and he did not learn about HMF levels until after his purchase and thus
could not have relied on any representation regarding HMF at the time of purchase.

4

Plaintiff’s claims against True Source Honey, LLC were also dismissed for lack of personal jurisdiction. Doc. 37
at 1.

5

Although neither party directly addresses which law applies, Plaintiff purchased his honey in Illinois, and both
parties apply Illinois law to his fraudulent-misrepresentation claim. See Doc. 37 at 9 n.5.

4

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As a preliminary matter, the Court notes that Defendant—again—takes an overly narrow
view of Plaintiff’s claim in this case. As the Court noted in its ruling on Defendant’s motion to
dismiss, “Plaintiff’s definition of raw . . . focuses on the effect of heating on the physical properties
consumers expect and seek in raw honey,” and under that definition, “honey is ‘raw’ if those
properties remain intact; honey is not ‘raw’ if those properties are altered, compromised, or
destroyed.” Doc. 37 at 12;6 see also Doc. 75 at 10 (arguing that the deceptive act is selling honey
as “gently processed to retain natural pollen and enzymes” when in fact the heating process used
by Defendant “denatured the very enzymes that it was promoting on both its label and its website”).
Accordingly, Plaintiff’s definition of “raw” honey turns on the preservation of certain
natural qualities of honey, including enzymes—not just on a particular HMF level.7 Both
Plaintiff’s fraudulent-misrepresentation claim and ICFA claim require him to show that Defendant
claimed its honey was “raw” in this way (meaning retaining natural enzymes), when in reality it
was not (because the way it was processed denatured those enzymes). The evidence Plaintiff points
to in support of this alleged misrepresentation is the honey’s HMF value (as reflecting the state of
the enzymes) and testimony about how Defendant heats and stores its honey. Doc. 75 at 11. But
the Court finds that this evidence is insufficient to create a genuine issue of material fact regarding
whether Defendant falsely represented its honey as “raw.”

6

Although Plaintiff has amended his complaint since the Court ruled on the motion to dismiss, the only material
change appears to be substituting the ICFA claim for the dismissed Kansas Consumer Protection Act Claim.

7

That Plaintiff defines “raw” honey based solely on HMF levels is the basis of Defendant’s argument that Plaintiff
cannot demonstrate reliance for either of his claims. This is because it is undisputed that Plaintiff did not learn
about HMF until after he bought the honey. Therefore, he could not have understood “raw” honey to mean
something about HMF levels at the time of purchase. But as discussed above, the Court disagrees that Plaintiff’s
claims are based solely on his perception of HMF levels. Accordingly, the Court focuses instead on whether
Plaintiff can demonstrate a genuine issue of fact on whether there was a false statement or deceptive act.

5

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A.

HMF Levels

Plaintiff first argues that his honey was tested and its HMF level was 147 mg/kg. Id. He
contends this is “far above the level that raw honey has in the hive and far above the level the
Codex recognizes as the level that preserves enzymes in raw honey.” Id. Defendant argues that
Plaintiff has no admissible evidence of his honey’s HMF levels at all, and even if the test results
were admissible, those results do not show evidence of HMF levels at the time of purchase. Doc.
74 at 10-11. The Court agrees.
On the first issue, the Court agrees with Defendant that Plaintiff has no set forth no
admissible evidence of his honey’s HMF level. Plaintiff has apparently only identified two
witnesses in this case: himself and Dr. Gawenis. But Plaintiff does not personally know the HMF
level of his honey. And Dr. Gawenis, who processed the honey samples, does not know if any of
the samples he processed belonged to Plaintiff. Thus, there’s no one to testify about the HMF level
of Plaintiff’s honey.
The only other evidence of the HMF level of Plaintiff’s honey is unauthenticated test
results from the German company that analyzed Dr. Gawenis’s testing data and an affidavit by
Plaintiff’s attorney stating that Plaintiff’s honey had an HMF level of 147 mg/kg. Doc. 75-8; Doc.
75-7 at 2. Neither of these is admissible evidence. The purported test results from the German
company are unauthenticated and it is unclear who could testify about them; none of the results
are clearly identified as being for Plaintiff’s honey. Nor is it clear how Plaintiff’s attorney would
be qualified to testify about the results of scientific testing that he did not conduct, to say nothing
of the hearsay issues implicated by merely repeating test results. See Johnson v. Weld Cnty., Colo.,
594 F.3d 1202, 1210 (10th Cir. 2010) (noting that, although “an affidavit at summary judgment
can be ‘converted’ in form into live testimony at trial, the content or substance of the affidavit

6

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must be otherwise admissible, and any hearsay contained in a summary judgment affidavit remains
hearsay, beyond the bounds of the court’s consideration”); see also Bell v. City of Topeka, Kan.,
496 F. Supp. 2d 1182, 1185 (D. Kan. 2007) (“The personal affidavit submitted by plaintiff’s
counsel is insufficient to provide authentication when plaintiff’s counsel is not the author of these
documents nor does he state that he has any personal knowledge of the facts contained within those
documents.”). Based on this, the Court concludes Plaintiff has not come forward with any
admissible evidence of his honey’s HMF level that would allow a factfinder to conclude that his
honey was not “raw.”
Defendant’s second argument regarding HMF levels is that, even accepting the test results
showing an HMF level of 147, those results came months after Plaintiff purchased the honey.
Because it is undisputed that HMF levels go up over time, even at room temperature, Defendant
argues that an HMF level from months after purchase does not indicate the quality of the honey at
the time of purchase. The Court agrees. Given that it is undisputed that HMF levels naturally
increase over time, even at room temperature, test results from months after purchase simply are
not material to the quality of the honey at the time of purchase or how it was processed before it
was purchased. In other words, no reasonable jury could rely on HMF levels from months after
purchase as evidence that honey was not “raw” when it was sold.
The Court further questions whether Plaintiff has presented sufficient evidence to allow a
factfinder to draw any inferences at all about HMF levels or what it means about enzymes in honey.
To support his claims about HMF levels, Plaintiff relies primarily on a document called the Codex
Alimentarius (“Codex”) and claims this document sets an international standard for a maximum
HMF level of 40. Doc. 75 at 8-9. Only a portion of this Codex has been attached as an exhibit, and
Plaintiff makes no attempt to authenticate it or explain what it is, other than citing to his

7

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complaint—which is not evidence—to claim that it is recognized by the World Trade Organization
as a “an international reference standard for the resolution of disputes concerning food safety and
consumer protection.” See id. at 8. Although Plaintiff acknowledges that the United States has not
adopted the standards for honey set forth in the Codex, he states without support that “they are the
standards followed by the honey industry.” Id. at 9. Beyond that, Plaintiff fails to cite any pages in
the Codex that reference acceptable HMF levels. See Fed. R. Civ. P. 56(c)(1)(a) (requiring parties
to “cit[e] to particular parts of materials in the record”). Although the Court, on its own, was able
to find a portion of the Codex that refers to HMF levels, see Doc. 75-5 at 6 (stating that the HMF
level “after processing and/or blending shall not be more than 40 mg/kg” or 80 mg/kg for honey
originating in tropical regions), that same page also notes that “[t]his text is intended for voluntary
application by commercial partners and not for application by governments,” id. See also Fed. R.
Civ. P. 56(c)(3) (noting that a “court need consider only the cited materials, but it may consider
other materials in the record”). The only other evidence explaining HMF levels is a memo written
by Dr. Gawenis, which quotes a textbook passage about HMF levels—hearsay within hearsay.
Based on these facts, the Court finds that Plaintiff has not demonstrated through HMF
levels that the honey sold by Defendant was not “raw.”
B.

Defendant’s Heating Process

Plaintiff also suggests that Defendant’s heating and storage procedures are evidence that
its honey was not, in fact, “raw.” The evidence Plaintiff points to is the way in which Defendant
heats its honey during processing, and the fact that it stores and transports honey without
temperature regulation and does not instruct retailers or consumers that its product be stored at a

8

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cool temperature. Doc. 75 at 11.8 But as Defendant points out, this evidence is immaterial because
Plaintiff has not shown that the heating process he complains of was the process used for the honey
he purchased. Defendant contends that the testimony at issue was regarding Defendant’s current
process, not the process used for the honey Plaintiff purchased. Plaintiff has not provided any
evidence to refute this.
Beyond that, even accepting this testimony about Defendant’s heating process, this does
not create a genuine issue of material fact on whether the honey at issue was deceptively labeled
as “raw.” First, even if the honey Plaintiff had bought had been heated using this process, Plaintiff
still has no evidence that the heating process damaged the enzymes in his honey to such an extent
it was no longer “raw.” At most, he would have evidence that the honey he bought had been heated
at some point.9 This does not, in and of itself, demonstrate that its enzymes had been so denatured
that the honey could no longer honestly be called “raw.”
Second, Plaintiff has not presented sufficient admissible evidence that processing honey at
any particular temperature destroys enzymes to such an extent that the honey can no longer be
considered “raw.” As Defendant points out, Plaintiff’s “claims about the relationships among
enzymes, heat, and HMF are simply unsupported” and Plaintiff “does not even have an expert
witness to speak to these issues.” Doc. 84 at 18. Although Plaintiff relies on Dr. Gawenis’s
testimony and his memo,10 the portion of Dr. Gawenis’s deposition included in the record does not

8

Defendant’s representative actually testified that he did not know what storage instructions were on the honey.
Doc. 75-4 at 14-15.

9

Plaintiff acknowledges that the honey he purchased was labeled as having been “gently processed.” Doc. 75 at 10.
Plaintiff offers no argument about how Defendant’s heating process crosses the line from “gently processed” to
something else. Related to this, to the extent Plaintiff contends that he understood “raw” to mean honey that has
not been modified or processed by the manufacturer at all, see id. at 3, he never explains how he could have had
that expectation when the bottle he purchased clearly stated the contrary.

10

Plaintiff also alleged in his facts that Defendant’s corporate representative “acknowledged that there is a
relationship of HMF to heat and of enzymes to heat in honey” and that when “the HMF value in honey is increased
by heating, the enzymes in that honey decrease.” Doc. 75 at 7. But the portion of the deposition transcript cited

9

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address the impact of heating to a particular temperature, and the memo is, as noted above, hearsay
within hearsay. Further, the relationship between enzymes in honey and heating to a certain
temperature would require expert testimony, and Dr. Gawenis has apparently only been designated
as a fact witness.
Accordingly, the Court finds that Defendant’s alleged heating process does not create a
genuine issue of material fact on the issue of whether Defendant misrepresented its honey as “raw.”
IV.

CONCLUSION
Because Plaintiff has not created a genuine issue of material fact regarding whether

Defendant made a false representation or committed a deceptive act, both his fraudulentmisrepresentation and ICFA claims fail and Defendant is entitled to summary judgment.11
THE COURT THEREFORE ORDERS that Defendant’s Motion for Summary Judgment
(Doc. 73) is GRANTED. Judgment is to be entered in favor of Defendant.
THE COURT FURTHER ORDERS that Plaintiff’s Motion to Certify Class (Doc. 82) is
DENIED AS MOOT.
IT IS SO ORDERED.
Dated: January 6, 2021

/s/ Holly L. Teeter
HOLLY L. TEETER
UNITED STATES DISTRICT JUDGE

was not included in the record. The portion of the transcript provided does show that Defendant’s representative
acknowledged that heat does impact enzymes in honey. Doc. 75-4 at 4. But he did not say how or to what extent.
11

Defendant argues in its motion that Plaintiff’s ICFA claim alternatively fails because Plaintiff lacks evidence that
a reasonable consumer would be misled by the designation of “raw” honey. Doc. 74 at 11-13. Because the Court
finds that both Plaintiff’s fraudulent-misrepresentation claim and ICFA claim fail for want of evidence of a false
statement or deceptive act, the Court does not reach this argument.

10