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Drayton v. Pilgrim's Pride Corp.

United States District Court for the Eastern District of Pennsylvania

May 4, 2006, Decided ; May 4, 2006, Filed

CIVIL ACTION No. 03-2334, CIVIL ACTION No. 03-3500, CIVIL ACTION No. 04-3577, CIVIL ACTION No. 04-3974

Opinion

Savage, J.

 [*639] MEMORANDUM AND ORDER

The two defendants, who the Centers for Disease Control and Prevention determined had produced turkey products tainted with a strain of Listeriosis 1 of the same type that caused the deaths and injuries in these food product liability cases, have moved for summary judgment. Each defendant contends that the plaintiffs cannot establish that it caused the injuries because they are unable to identify a specific product they or their decedents ingested. In addition to opposing the motions by arguing that they have presented sufficient circumstantial evidence of causation, the plaintiffs have filed a cross-motion for summary judgment requesting application of the alternative liability theory as embodied in the RESTATEMENT (SECOND) OF TORTS § 433(b)(3). They assert that the defendants are alternatively liable for injuries arising from the outbreak of Listeriosis in the summer and fall of 2002 that caused the deaths and injuries in these cases.

 [**3]  Finding that there are disputed material facts and that the plaintiffs have proffered sufficient evidence from which a reasonable jury could conclude that either or both of the defendants' products caused the deaths and injuries, I shall deny the motions for summary judgment. 2 Because the evidence, when viewed in the light most favorable to the plaintiffs would permit a jury to find that the defendants -- and no others -- acted in substantially the same manner at the same time in causing the injuries, alternate liability will be applied. Accordingly, the burden will be on the defendants to show which one, if either, supplied the tainted product that caused each individual plaintiff's harm.

 [**4]  [*640] The Listeria Outbreak

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472 F. Supp. 2d 638 *; 2006 U.S. Dist. LEXIS 26047 **; CCH Prod. Liab. Rep. P17,467

LAWESE DRAYTON, Individually and as Personal Representative of the Estate of RAYMOND DRAYTON, Deceased v. PILGRIM'S PRIDE CORPORATION and JACK LAMBERSKY POULTRY CO., INC., d/b/a J.L. FOODS CO., INC.; LARON HARVEY, a Minor, by His Mother and Guardian, SHAKANDRA HAMPTON, and SHAKANDRA HAMPTON v. PILGRIM'S PRIDE CORPORATION and JACK LAMBERSKY POULTRY CO., INC.; JODY LEVONCHUCK, Administrator of the Estate of JOSEPH CUSATO, Deceased v. PILGRIM'S PRIDE CORPORATION and JACK LAMBERSKY POULTRY CO., INC., d/b/a J.L. FOODS CO., INC.; PATRICIA NIEMTZOW, Individually and as Personal Representative of the Estate of FRANK NIEMTZOW, Deceased v. WAMPLER FOODS, a wholly owned subsidiary of PILGRIM'S PRIDE CORPORATION, a Delaware Corporation, and JACK LAMBERSKY POULTRY COMPANY, INC., a New Jersey Corporation d/b/a J. L. FOODS CO., INC.

Prior History: Drayton v. Pilgrim's Pride Corp., 2005 U.S. Dist. LEXIS 18571 (E.D. Pa., Aug. 30, 2005)

CORE TERMS

products, outbreak, turkey, strain, plant, CDC, Poultry, Listeriosis, summary judgment, brand, plaintiffs', declaration, injuries, Foods, cases, expert report, identification, defendants', deposition, Listeria, tainted product, defense motion, cause injury, infections, DISEASES, consumed, exposure, tortious, tested, theory of liability

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Burdens of Proof, Nonmovant Persuasion & Proof, Evidentiary Considerations, Scintilla Rule, Evidence, Types of Evidence, Circumstantial Evidence, Torts, Products Liability, Procedural Matters, Multiple Defendants, Alternative Liability, Theories of Liability, Negligence