Norde' et al v. P.F. Chang's China Bistro, Inc.
OPINION and ORDER Granting Defendant's 23 Motion for Summary Judgment; and Finding as Moot Plaintiffs' Second 27 Motion to Compel. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
and CECIL NORDÉ,
Case No. 2:16-cv-13595
P.F. CHANG'S CHINA BISTRO, INC.,
HONORABLE STEPHEN J. MURPHY, III
OPINION AND ORDER GRANTING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT  AND
FINDING AS MOOT PLAINTIFFS' SECOND MOTION TO COMPEL 
Plaintiffs Careea and Cecil Nordé (collectively "Nordés") filed suit against Defendant
P.F. Chang's Bistro, Inc. in Wayne County Circuit Court and alleged negligence, violation
of the Michigan consumer protection act, breach of implied warranty, and loss of
consortium. ECF 1, PgID 18–21. After discovery closed, Defendant filed the pending motion
for summary judgment. ECF 23. Plaintiffs responded and filed a second motion to compel
discovery. ECF 27. The Court has reviewed the briefs; a hearing is unnecessary. E.D.
Mich. LR 7.1(f).
For the reasons set forth below, the Court will grant Defendant's motion for summary
judgment. Plaintiffs' second motion to compel is therefore moot.
On July 2, 2015, the Nordés dined at P.F. Chang's in Dearborn, Michigan. They
received a regular menu and a special "Chang's for Two" menu. ECF 24-2, PgID 270; ECF
On summary judgment, the Court views the evidence and draws reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
23-2, PgID 183. The Nordés "glanced at the regular menu and decided it would be more
economical to order from the special menu." ECF 24-2, PgID 270. The regular menu listed
the ingredients in each dish and stated "[b]efore placing your order, please inform your
server if a person in your party has a food allergy." ECF 23-4, PgID 191–92. The "Chang's
for Two" menu neither listed ingredients nor provided an allergen warning. ECF 24-3, PgID
317.2 Careea has a severe shellfish allergy. ECF 24-2, PgID 276.
Careea ordered wonton soup from the "Chang's for Two" menu. The regular menu
itemizes wonton soup's ingredients: "[s]avory broth with . . . shrimp[.]" ECF 23-4, PgID 191.
Careea ate a wonton from the soup, but before taking another bite her husband, Cecil,
intervened because a shrimp was on her spoon. ECF 24-2, PgID 272–73. Careea could
not see the shrimp in the soup because of the wontons. Id. at 312. Cecil called the waitress
to the table. The waitress explained that P.F. Chang's made its wonton soup with shrimp
and that she wished she had known of Careea's allergy because the restaurant has "a
special menu for people with allergies." Id. at 275.
Careea immediately took two Benadryl and rushed to the hospital with trouble
breathing. Id. at 273–75. After arriving at the hospital, Careea told the hospital staff that she
had "a severe shellfish allergy and accidentally ate a wonton that was cooked with shrimp."
Id. at 276. Shortly thereafter Careea lost consciousness and hospital personnel placed her
Plaintiffs point to the disclaimer at the bottom of the "Chang's for Two" menu about
scallops to show that the menu was misleading because it disclaimed some allergens and
not others. See ECF 24, PgID 206, 211. But Plaintiffs' claim is unsupported by the record.
The menu states that the Chang's Kung Pao "excludes scallops." ECF 24-3, PgID 317. The
disclaimer clearly means that a person ordering from the "Chang's for Two" menu may not
order Chang's Kung Pao with the scallops as part of the fixed price menu.
in a medically induced coma for several days. Id. at 263–64. Prior to the P.F. Chang's
incident, Careea had suffered only two previous allergic reactions. Id. at 243–44.
Careea suffered significant injury from her hospitalization including: a "[p]ermanent
raspy and hoarse voice," surgeries, "[c]onstant ear infections," physical and emotional pain
and suffering, medical costs, lost wages and earning capacity, among others. ECF 1, PgID
STANDARD OF REVIEW
Summary judgment is warranted "if the movant shows 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). A fact is "material" for purposes of summary judgment if proof of that fact would
establish or refute an essential element of the cause of action or defense. Kendall v.
Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). A dispute over material facts is “genuine”
"if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In order to show that a
fact is, or is not, genuinely disputed, both parties are required to either "cite to particular
parts of materials in the record" or "show that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). In considering a motion
for summary judgment, the Court must view the facts and draw all reasonable inferences
in a light most favorable to the nonmoving party. 60 Ivy St. Corp. v. Alexander, 822 F.2d
1432, 1435 (6th Cir. 1987).
Plaintiffs allege three state law claims. The Court applies Michigan law because when
"federal jurisdiction is based on diversity . . . the substantive law of the forum state"
governs. Conlin v. Mortg. Elec. Registration Sys., Inc., 714 F.3d 355, 358 (6th Cir. 2013).
To establish a prima facie case of negligence, the plaintiff must prove four elements:
"(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation,
and (4) damages." Case v. Consumers Power Co., 463 Mich. 1, 6 (2000). "The threshold
question in a negligence action is whether the defendant owed a duty to the plaintiff." Fultz
v. Union-Commerce Assocs., 470 Mich. 460, 463 (2004). Duty is "the legal obligation to
conform to a specific standard of conduct[.]" Lelito v. Monroe, 273 Mich. App. 416, 419
(2006). "[W]hether a duty exists is determined by the court as a matter of law." Id. at 419.3
Statutes or the common law—"which imposes on every person engaged in the prosecution
of any undertaking an obligation to use due care"—may establish a duty of care. Cipri v.
Bellingham Frozen Foods, Inc., 235 Mich. App. 1, 15 (1999) (quotation omitted). If the
decisions of a state's highest court do not resolve the issue of the nature of the duty, the
Court "must make an Erie guess to determine how that court, if presented with the issue,
would resolve it." Conlin, 714 F.3d at 358–59.
Here, the parties agree that there are no Michigan Supreme Court decisions on point;
the parties further agree that the Restatement (Second) of Torts § 402A provides the
appropriate standard. ECF 23, PgID 168; ECF 24, PgID 209–10. The Restatement states:
Plaintiffs frame the issue as whether "there is a question of fact upon which a jury
could find that Defendant owed a legal duty to Plaintiffs[.]" ECF 24, PgID 205. The
existence of a legal duty is not a factual question, but a legal one. Cipri v. Bellingham
Frozen Foods, Inc., 235 Mich. App. 1, 14 (1999). The plaintiffs' presentation of the issue
is erroneously argued throughout the response to the motion for summary judgment.
The seller may reasonably assume that those with common
allergies, as for example to eggs or strawberries, will be
aware of them, and he is not required to warn against them.
Where, however, the product contains an ingredient to which
a substantial number of the population are allergic, and the
ingredient is one whose danger is not generally known, or if
known is one which the consumer would reasonably not
expect to find in the product, the seller is required to give
warning against it, if he has knowledge, or by the application
of reasonable, developed human skill and foresight should
have knowledge, of the presence of the ingredient and the
danger. . . . Where warning is given, the seller may
reasonably assume that it will be read and heeded; and a
product bearing such a warning, which is safe for use if it is
followed, is not in defective condition, nor is it unreasonably
Restatement (Second) of Torts § 402A (Am. Law Inst. 1965).
P.F. Chang's provided sufficient warning to Careea that the wonton soup contained
shrimp. There is no dispute that the Nordés received a regular menu, a "Chang's for Two"
menu, and that they "glanced at the regular menu and decided it would be more
economical to order from the special menu." ECF 24-2, PgID 270.4 Viewing the facts in the
light most favorable to the Plaintiffs, two things can be assumed: (1) a shrimp allergy would
afflict a substantial number of the population and (2) a reasonable person would not expect
that wonton soup contains shrimp. Nevertheless, undisputed testimony demonstrates that
P.F. Chang's provided a warning. The regular menu, that the Nordés received and at which
they glanced, lists all ingredients for each dish. ECF 23-4, PgID 191. Moreover, the menu
Plaintiffs contend that "there is clearly a question of fact whether Plaintiffs received a
menu that did not list ingredients or warnings for the wonton soup[.]" ECF 24, PgID 211.
But any factual dispute here will involve whether the Nordés received a regular menu in
addition to the "Chang's for Two" menu. Careea Nordé's testimony, however, removes any
doubt whatsoever and establishes that the Nordés received both menus and looked at
both. Reviewing facts in the light most favorable to the Plaintiffs does not require the Court
to ignore uncontroverted testimony given by the Plaintiffs.
states: "[b]efore placing your order, please inform your server if a person in your party has
a food allergy. Id. at 192. P.F. Chang's could assume, therefore, "that [the warning would]
be read and heeded; and a product bearing such a warning, which is safe for use if it is
followed, is not in defective condition, nor is it unreasonably dangerous." Restatement
(Second) of Torts § 402A (Am. Law Inst. 1965). Plaintiffs' negligence claim fails.
Michigan Consumer Protection Act Claim
The Michigan Consumer Protection Act ("MCPA") prohibits the use of "[u]nfair,
unconscionable, or deceptive methods, acts, or practices in the conduct of trade or
commerce[.]" Mich. Comp. Laws § 445.903(1). The statute provides a broad definition of
"trade or commerce:" "the conduct of a business providing goods . . . for personal, family,
or household purposes[.]" Id. § 445.902(g). The parties do not cite any Michigan court
decision applying the MCPA to restaurants.
The Court, however, need not make a determination on the issue because, even if
the MCPA applies to dining establishments, P.F. Chang's's conduct did not constitute an
unfair, unconscionable, or deceptive method, act, or practice. The MCPA defines thirtyseven methods, acts, or practices as unfair, unconscionable, or deceptive. Id.
§ 445.903(a)–(kk). And the statute restricts the attorney general's ability to enumerate more
definitions of unfair practices. Id. at § 445.903(2). Here, P.F. Chang's's conduct satisfies
none of the thirty-seven definitions of an unfair, unconscionable, or deceptive method, act,
Implied Warranty Claim
An implied warranty exists if a seller has "reason to know any particular purpose for
which the goods are required and that the buyer is relying on the seller's skill or judgment
to select or furnish suitable goods[.]" Mich. Comp. Laws § 440.2315.
P.F. Chang's knew that the Nordés purchased their meal for the purpose of
consumption. The undisputed facts demonstrate that P.F. Chang's had no reason to know
of Careea's allergy. Careea did, in fact, consume her wonton soup. The good sold fit the
particular purpose of its use. P.F. Chang's had no reason to know of Careea's particular
purpose of consuming a non-allergic meal. Plaintiff's implied warranty claims therefore does
not survive summary judgment.
Loss of Consortium
"A claim of loss of consortium is derivative and recovery is contingent upon the injured
spouse's recovery of damages for the injury." Berryman v. KMart Corp., 193 Mich. App. 88,
94 (1992) (citing Moss v. Pacquing, 183 Mich. App. 574, 583 (1990)). Because Plaintiff
Careea Nordé's substantive claims fail, her husband's loss of consortium claim fails as well.
WHEREFORE, it is hereby ORDERED that Defendant's motion for summary
judgment  is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs' motion to compel  is MOOT.
Dated: October 31, 2017
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on October 31, 2017, by electronic and/or ordinary mail.
s/David P. Parker
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