Thacker Ex Rel. Thacker v. Kroger Co. , 155 F. App'x 946 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1088
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Savana Kaylin Thacker, by her next *
friend Kristi Thacker; Shelby L. *
Thacker and Kristi Thacker, parents of*
Savana Kaylin Thacker, *
* Appeal from the United States
Appellants, * District Court for the
* Western District of Missouri.
v. *
* [UNPUBLISHED]
Kroger Company; *
ConAgra, Inc., *
*
Appellees. *
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Submitted: October 13, 2005
Filed: December 2, 2005
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Before LOKEN, Chief Judge, LAY and BENTON, Circuit Judges.
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PER CURIAM.
The district court1 ruled that there was insufficient evidence to make it
"reasonable and probable" that ground beef produced by ConAgra, Inc., and sold by
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
the Kroger Company, caused Savana Kaylin Thacker's illness. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
I.
ConAgra processes and packages ground beef for sale to grocery stores
nationwide. One product is "chubs," ground beef shipped to grocery stores
prepackaged. Another product is "trim," small pieces of beef often ground into
hamburger by a store itself. Kroger's store in Eldon, Missouri, sells both products.
The trim it grinds into hamburger and packages in foam with clear plastic wrap.
On June 29, 2002, the United States Department of Agriculture notified
ConAgra that ground beef it produced on May 31 contained E. coli bacteria.
ConAgra issued a recall the next day for 354,000 pounds of ground beef chubs
produced May 31. No trim was recalled then. This initial recall did not affect
Kroger's store in Eldon because it did not receive any chubs produced on May 31.
On July 19, ConAgra expanded its recall to include all beef – both chubs and
trim – produced from April 12 through June 29. That same day, ConAgra notified
Kroger that two products were subject to the recall: 1) five-pound Kroger FlavorSeal
Tubes of Ground Chuck with sell-by dates of May 20 through June 8; and 2) ten-
pound Keeper Casings with sell-by dates of June 22 through July 14. Kroger posted
notices of this recall in its stores. Kroger issued a press release requesting Missouri
consumers to return: 1) "ground beef, ground chuck and ground round purchased in
one-, three- and five-pound tubes with sell-by dates of May 9, 2002 through July 16,
2002"; and 2) products with sell-by dates of April 18 through June 11, 2002, and June
22 through July 14, 2002.
Sometime in early July, Kristi Thacker purchased ground beef for her family
from Kroger's store. All four members of the family ate it during the first two weeks
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of August. On August 12 and 13, Savana – the youngest member of the family –
complained of stomach cramps, and, by August 17, she was vomiting. On August 19,
Savana was taken to see her primary physician and then rushed to a hospital where
she was diagnosed with Hemolytic Uremic Syndrome (HUS), a disease commonly
associated with E. coli. Savana was the only family member that became sick. The
Thackers' beef was never tested to confirm the presence of E. coli.
II.
The district court granted summary judgment in favor of ConAgra and Kroger,
ruling that the Thackers failed to establish that Savana's injuries were caused by the
beef produced by ConAgra and sold by Kroger. A grant of summary judgment is
reviewed de novo, using the same standard as applied by the district court.
Schoolhouse, Inc. v. Anderson, 275 F.3d 726, 728 (8th Cir. 2002). Summary judgment
is appropriate if the evidence, viewed in the light most favorable to the nonmovant,
shows no genuine issue of material fact and that the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c).
Under Missouri law, the existence of a product defect may be inferred from
circumstantial evidence. See Boss v. Gen. Motors Corp., 150 F.3d 842, 850 (8th Cir.
1998); Weatherford v. H.K. Porter, Inc., 560 S.W.2d 31, 34 (Mo. Ct. App. 1977); see
also Duke v. Gulf & W. Mfg. Co., 660 S.W.2d 404, 409 (Mo. Ct. App. 1983);
Williams v. Coca-Cola Bottling Co., 285 S.W.2d 53, 56 (Mo. Ct. App. 1955).
However, the finding of a defect cannot rely on mere conjecture, speculation or
guesswork. See Daniel v. Ind. Mills & Mfg., Inc., 103 S.W.3d 302, 310 (Mo. Ct. App.
2003), citing Crump v. MacNaught P.T.Y. Ltd., 743 S.W.2d 532, 534 (Mo. Ct. App.
1987); see also Braun v. Roux Distrib. Co., 312 S.W.2d 758, 766 (Mo. 1958).
Instead, it must be based upon probative facts. See Lifritz v. Sears, Roebuck & Co.,
472 S.W.2d 28, 32 (Mo. Ct. App. 1971). "These probative facts . . . while not
requiring the quality of absolute certainty, must point to the desired conclusion with
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such a degree of certainty as to make that conclusion reasonable and probable." Id.
Where there are multiple possible causes, the plaintiff must "exclude other causes by
presenting substantial evidence that a particular cause for which defendant is liable
is responsible for plaintiff's injuries." Bone v. Ames Taping Tool Sys., Inc., 179 F.3d
1080, 1082 (8th Cir. 1999), quoting Kircher v. Purina Mills, Inc., 775 S.W.2d 115,
117 (Mo.banc 1989).
The Thackers rely mostly on the fact that the beef they ate was subject to the
ConAgra/Kroger recall. Additionally, the Thackers interpret Ms. Thacker's testimony
to say she bought clear-wrapped ground beef as well as the five-pound chubs. Even
assuming Ms. Thacker did purchase clear-wrapped beef, it is undisputed that fresh
ground beef has a maximum 18-day shelf life from the date of production. Any meat
produced on May 31 – the only production day that the USDA detected E. coli in
meat that was actually distributed – would have been removed from the shelves by
June 18, long before Ms. Thacker purchased the beef consumed. Thus, viewed most
favorably to the Thackers, the clear-wrapped beef, while subject to the recall, was not
part of the contaminated meat discovered by the USDA on May 31. This fact does
not establish the causation necessary to avoid summary judgment.
The district court correctly notes that Missouri courts have yet to address
whether the mere existence of a recall establishes causation in products liability cases.
But cf. Yun v. Ethicon, Inc., No. 00-0487, 2002 WL 732276 (N.D. Cal. Apr. 22,
2002), aff'd, 65 Fed. Appx. 644 (9th Cir. 2003) (explaining that plaintiff did not prove
recalled sutures were used in his surgery); Anderson v. Whittaker Corp., 894 F.2d 804
(6th Cir. 1990) (finding recalled boat's air vents defective based on additional
evidence) . In this case, there is no evidence that the additional recalls were the result
of positive E. coli tests. Instead, it appears that the recalls were mostly cautionary.
The Thackers emphasize Dr. Groshong's testimony as to the causation of
Savana's HUS. But his conclusion was based on the Thackers' representation that
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"they knew that they had ingested some food that was known to have been
contaminated with E. coli." This conclusion was not based upon probative fact but
instead on speculation by the Thackers. Dr. Groshong testified that he did "not know
what the source is," and that "I, obviously, have no source."
The Thackers assert that Dr. Groshong's answer to a hypothetical establishes
the required probability separate from the rest of his testimony. First, the hypothetical
appears to be based on the assumption that all the recalled beef was found
contaminated. Most importantly, it did not include the fact that earlier Savana ate
part of a hamburger at a county fair. When questioned whether he could identify the
source of the HUS to a reasonable degree of medical certainty, Dr. Groshong replied,
"But, you know, if you tell me that, well, she had hamburger from somebody else the
day before, or something like that, no. I mean, I can't, of course." Dr. Groshong's
conclusions were not based on all the probative facts and, thus, are speculative at
best. See Perkins v. Kroger Co., 592 S.W.2d 292, 294 (Mo. Ct. App. 1979)
(hypothetical question to doctor must be based upon facts in evidence).
The Thackers argue that Dr. Groshong's expert opinion is "exactly like" that
given in Perkins where a Missouri court found causation and submissibility. In
Perkins, though, the doctor's testimony was based on the fact that a foreign substance
was actually discovered in the sausage and confirmed in lab tests, and that the
children became sick while consuming it. Thus, Perkins is not only distinguishable
from the present case, it also demonstrates the standard to prove causation.
Finally, to the extent there is more than one possible cause of Savana's HUS,
the Thackers fail to show by substantial evidence the probable cause. Their only
evidence of causation is the existence of the recalls and Dr. Groshong's testimony.
In sum, causation was not proved and the case is not submissible under Missouri law.
Therefore, this court affirms.
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