HORAN et al v. DOCK ST. SEAFOOD, INC. et al
OPINION. Signed by Judge Renee Marie Bumb on 5/5/2017. (tf, )
[ECF No. 120]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MAUREEN HORAN and DENNIS
Civil Action No. 12-2273
DILBET, INC. d/b/a WINDRIFT
BUMB, United States District Judge:
This matter comes before the Court upon Defendant Dilbet,
Inc.’s (“Defendant” or the “Windrift”) Motion for Summary
Mot. Summ. J. [ECF No. 120].
Court held oral argument.
On April 7, 2017, this
Prior thereto, Plaintiffs Maureen
Horan and Dennis Vachon (“Plaintiffs”) had satisfied this Court
– barely – that they could demonstrate to a jury by a
preponderance of the evidence that the clams that were delivered
to the Windrift did not contain an infective dose of Vibrio at
the time of delivery.1
The Court believed this demonstration
The Court has previously recited the facts of this case in
its August 26, 2015 Opinion. Aug. 26, 2015 Op. [ECF No. 86].
Because the Court presumes the parties’ familiarity with the
facts, it does not repeat them here.
would occur through the testimony of Plaintiffs’ expert witness,
Dr. James D. Oliver.
Generously granting all inferences in
favor of Plaintiffs at summary judgment, this Court construed
Dr. Oliver’s testimony to be tethered to facts that he would
ultimately rely on, such as the temperature of the waters at the
time of the harvesting, the place of harvesting, etc.
facts, he testified, would tend to support his testimony that
the clams did not have an infective dose of Vibrio at the time
they were harvested and delivered to the Windrift.
Court’s view, this was barely enough evidence to go before a
Through the subsequent briefing and pruning of the case
for trial, however, it appeared
that Plaintiffs had no such
evidence to present to the jury and Dr. Oliver’s opinion was
based on much speculation.
This was the subject of a status
conference with the parties on April 19, 2016.
The Court ruled in its August 26, 2015 Opinion:
Although the testimony by Plaintiffs’ expert seems to
support the conclusion that the ‘culprit was in the
clams’ at the time of harvest, as Defendant argues,
there are material disputes, i.e., the temperature of
the water and presence of nutrients, . . . to put
before a jury to resolve. If the jury concludes that
the clams contained Vibrio in an amount less than the
infective dosage level, then it may turn to the
question of the impact of Windrift’s conduct on the
level of Vibrio in the clams and hence Plaintiff’s
risk of infection.
Aug. 26, 2015 Op. 48.
Thus, at oral argument this Court pressed Plaintiffs as to
the evidence they intended to present through Dr. Oliver – or
through other means - that the clams delivered to the Windrift
more likely than not contained a non-infective dose of Vibrio.
Under that theory, the Windrift’s alleged mishandling would
potentially be (if proven) the proximate cause through an
increased risk of injury.
Plaintiffs offered several arguments
supporting the notion that they had sufficiently adduced
evidence to make it a jury question.
The Court addresses each
of Plaintiffs’ points below.
First, Plaintiffs contend that even without Dr. Oliver’s
testimony, the “evidence” that the State of New Jersey permitted
harvesting of these clams could give rise to the inference that
they did not contain an infective dose of Vibrio.
words, per Plaintiffs, the State of New Jersey would never allow
clam harvesting if the clams contained infective doses of
Therefore, Plaintiffs contend, the possible inference
is that they did not contain such infective dosages.
however, is belied by the record, and indeed, by Dr. Oliver’s
Did you happen to review the defendant’s answers
to interrogatories indicating that there was a tag of
a delivery that day, July 30th, from Sea-Lect Seafood?
Did you happen to see that tag, sir?
A. I may have. I don’t recall it.
THE COURT: An illegal harvest is?
THE WITNESS: Well, the -- certain regions of estuarine
environments, coastal environments, are set aside
where it’s allowed to harvest shellfish. They are
leased to various seafood entities, seafood companies.
They can be closed, for example, if there is a lot of
runoff and maybe salmonella, E. coli from cattle, or
something like that, contaminating the area. So
periodically the shellfish areas might be closed. But
typically a region is leased by a harvest company and
then they have the right to harvest the shellfish
there. So they are designated by the states where they
THE COURT: And so the question that was asked, you
don’t have any information to believe that there was
any harvesting done here that was not legal?
THE WITNESS: I have no knowledge of that, no.
BY MR. DE DONATO:
Q. And I believe, sir, in your expert report and your
deposition you didn’t bring up the fact there was
anything but a legal harvest of shellfish here; is
A. I have nothing to indicate it was anything other
Q. Okay. Now, in the State of New Jersey is it legal
to sell raw shellfish with vibrio if it’s a legal
A. It’s not possible, not -- would you say the
again so I can try to answer it correctly?
Q. Okay. In New Jersey can raw shellfish from a legal
harvest be sold with vibrio?
Q. And you told us about an infective dose of 100 to
300 as the number you use; is that correct?
A. As an estimate, yes.
Q. And there is no law in New Jersey that makes
selling raw shellfish with an infective dose of 100 to
300 vibrio illegal; is that correct?
A. No, that’s correct.
Q. In fact, you can legally sell raw shellfish in New
Jersey with a hundred thousand vibrio in it; is that
A. To my knowledge no state has any regulations about
what the numbers of vibrio must be, so you are
Tr. of Proceedings of June 30, 2015 at 57:20-59:14 [ECF No. 83]
(hereinafter, “Tr. at ___”).
As both parties recognized, clams
containing infective dosages of Vibrio are routinely harvested
and sold to consumers.
Second, Plaintiffs contend that Dr. Oliver’s testimony
alone is sufficient to go before the jury because his opinion
that the Windrift increased the risk of Vibrio infection and
Plaintiffs’ injury “logically” or “necessarily” presumes an
underlying opinion that the clams delivered to the Windrift did
not contain infective levels of Vibrio.
This is precisely why the Court held a Daubert
hearing to ascertain under Rule 702 what evidence Dr. Oliver
relied upon to reach his conclusions.3
Again, by the slimmest of margins, this Court permitted
Dr. Oliver to testify to the first prong, regarding whether the
clams contained an infective dose of Vibrio, because it believed
that Dr. Oliver’s testimony was based upon facts that the
Plaintiffs would introduce to the jury.
Dr. Oliver’s opinion relating to the Windrift’s proximate
cause of Plaintiffs’ injury must be tethered to “sufficient
facts or data,” and not presumption or supposition.
Rule 702 requires this.
At oral argument
Plaintiffs conceded that they could not introduce evidence of
the very factors Dr. Oliver opined might be relevant, e.g.,
Without that evidence, the record contains
only an assumption – unconnected to facts in the record – that
the clams did not contain infective Vibrio at the time of
Even more to the point, disregarding what this Court
saw as potential disputed facts that prevented this Court’s
entry of summary judgment, Plaintiffs’ own witness, Dr. Oliver,
opined that there was no way one could determine whether the
clams had infective levels of Vibrio at the time of the delivery
to the Windrift:
Q. I’d like to talk about the infective dose. You told
us earlier that all shellfish in estuarine waters
would have a VV content; is that correct?
A. That’s virtually the case, yes.
Q. And in some cases because of the valve pumping or
the way these shellfish process their own nutrients
there could be up to a hundred thousand vibrio
organisms in any given shellfish, possibly more; is
A. That is possible, yes.
Q. I’d like you to assume that from the
interrogatories that are before the Court that the
Windrift did take delivery of 50 choice neck clams on
the morning of Mrs. Horan’s visit to the restaurant.
I’d like you to assume those facts. You told us that
there is no way of knowing the vibrio count of the
three clams she ate upon delivery of those clams; is
Q. They would have to be tested, which would destroy
the clam; is that right?
A. That’s correct.
Q. And is it correct that if she had -- if there was
an infective dose it was created at the time of the
harvest; is that correct?
A. If the clams had an infective dose?
A. That would be what a clam naturally has. Whatever
is there, it is, I mean.
Q. So if there was 100,000 vibrio in the clam at the
time of delivery, that was the infective dose; is that
A. Which doesn’t mean somebody would come down with
it, but that –
A. -- that exceeds the number we believe that would be
Q. It would be within the range 100 to 300 vibrio
organisms; is that correct?
A. I don’t know what the question is, I’m sorry.
Q. You stated that you believe the infective dose is
100 to 300 vibrio organisms; is that correct?
A. I accept that number that’s been supplied by other
Q. Is it authoritative to you?
Q. So if we use that number, on the morning of the
delivery of the clams to the Windrift, if those clams
were subsequently consumed by Ms. Horan, if one clam
had a hundred thousand vibrio organisms, it’s met the
infective dose; is that correct?
A. I would say that’s correct.
Tr. at 64:20-66:17.
Indeed, Dr. Oliver testified that it would
be pure speculation:
Q. So my point to you, sir, is that with regard to the
delivery that took place on the morning of her
consumption of clams, we have no information as to the
number of organisms that were delivered at the time to
the Windrift; is that correct?
A. That’s correct.
Q. There is no baseline from which you could calculate
the number, the number of organisms to those delivered
clams; is that correct?
Q. And there is no way for you to calculate what the
Windrift did, if anything, to increase an infective
dose of clams that were delivered that morning; is
MR. MAKOWICZ: In any of the particular clams?
MR. DE DONATO: The ones delivered that morning, yes.
MR. MAKOWICZ: That were served to Ms. Horan?
MR. DE DONATO: Correct.
THE WITNESS: To predict a number?
BY MR. DE DONATO:
Q. A number.
A. No, you could not predict.
Q. And that’s because you don’t have a baseline to
begin with because there was no testing, is that a
Q. So if the – let me ask you this. If we take the
Windrift out of the equation entirely, and Ms. Horan
ate the clams without any involvement of the Windrift,
those specific clams, would she have gotten sick
A. I need to try and understand what you are asking
me. If she just went out and got some clams on her
Q. No, those specific clams. If we take the Windrift
out of the equation and she ate those three clams
before they were delivered to the Windrift, would she
have gotten sick anyway?
A. It’s impossible to predict.
Q. Why would that be?
A. Because we don’t know the number of VV that are in
Tr. at 67:3-68:11.
Moreover, in response to a question from the Court, Dr.
Oliver conceded that Ms. Horan could have developed the
infection without any involvement by the Defendant:
THE COURT: So the question that’s being asked by
counsel is that if the batch were delivered and the
Windrift – and Ms. Horan ate the clams from the batch,
right then and there as they were delivered to the
door of the Windrift, she could have developed this
infection without any role by the Windrift.
A. It is possible, yes.
Tr. at 70:9-15.
Dr. Oliver’s testimony even went as far as discussing the
issue of probability, and the foundation for his testimony that
Ms. Horan’s injury was caused by the Windrift:
Q. Before we go on to another topic, I just wanted to
go back to one other question I asked you. The
question was if Ms. Horan had eaten the clams that
were delivered on the morning of her meal without any
involvement of the Windrift you said it was possible
that she would have gotten sick. Is that correct?
Q. Would it have been probable?
A. I can’t put a probability number on it. It’s such a
rare event that we don’t know all the conditions that
lead to the infection. As an example, she had eaten
shellfish many times before with no consequence,
probably when she had hemochromatosis then too, and we
don’t know why she didn’t. That’s a typical scenario
of people who are susceptible, still eat many, many
times and they have no consequence, and then eat one
time and die. But we don’t know what the combination
is that results in that.
Q. Well, then, do you know, what did the Windrift do
after delivery of those clams to make it probable, as
you answered Mr. Makowicz’s question?
A. Well, holding it at the wrong temperature, allowing
the bacteria -- likely at a temperature that allowed
the bacteria to increase in number, and the
possibility of the likelihood of cross-contamination
to result in either increases in number -- not so much
that it was contaminated, but the fact that by sitting
there for much longer than four hours at a temperature
that allows proliferation of these bacteria, because
they do grow so fast, and the possibility that the C
types were increasing.
Q. But again, this is -- this also is speculation; is
Q. You don’t have an answer other than to
theoretically give us the response you just did; is
A. I think that’s accurate.
Tr. at 76:24-78:8.
Thus, Dr. Oliver’s opinion that the unsanitary conditions
at the Windrift increased the risk of Plaintiffs’ injury is
without any sufficient basis, but rather is built upon a working
hypothesis or assumption only – an opinion that falls short of
Plaintiffs argue that this Court’s ruling would mean that
the Windrift would be free to let the clams sit out
unrefrigerated for weeks and escape liability for any injury.
Putting aside the fact that the hypothetical plaintiff’s
injuries would likely be caused by something other than just
Vibrio, Plaintiffs’ argument misses the point.
If the cause of
action is that Ms. Horan’s injury – infection from Vibrio – was
caused by the Windrift’s conduct, Plaintiffs must first present
sufficient and reliable evidence under Rule 702 or otherwise to
go before a jury that the clams likely contained Vibrio in an
amount less than the infective dose.
Despite the opportunity to
do so, Plaintiffs have presented no such evidence.
Plaintiffs’ reliance on Hake v. Manchester Township, 98
N.J. 302 (1985) is misplaced for several reasons.
was one of the “narrow class[es] of cases of lost chance of
survival,” id at 311, that imposed upon the defendant a duty to
try to save the decedent’s life.
“Tort claims based on
‘lost chance’ in terms of the causation of ultimate injury
present unique conceptual and analytical problems not presented
in other typical negligence cases.”
not a “lost chance” case.
Id. at 309.
This case is
Moreover, unlike in Hake, the
opinions of Plaintiffs’ expert witness, Dr. Oliver, are
insufficient under Rule 702, for reasons set forth above.
In the end of the Court’s final analysis, the Court is
constrained to enter summary judgment in favor of Defendant.
There remains no evidence to put before the jury that the clams
delivered, more likely than not, did not contain an infective
This Court would be allowing mere speculation or
supposition to go before the jury upon which “evidence” Dr.
Oliver would opine that the Windrift’s negligent handling of the
clams substantially increased or proximately caused Plaintiffs’
Such opinion would be impermissible under Rule 702.
Accordingly, the Court will enter an Order granting summary
judgment in favor of Defendant Windrift.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: May 5, 2017
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