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Horan v. Dilbet, Inc.

United States Court of Appeals for the Third Circuit

January 26, 2018, Submitted Under Third Circuit L.A.R. 34.1(a); February 21, 2018, Opinion Filed

No. 17-2243

Opinion

 [*149]  OPINION1

VANASKIE, Circuit Judge.

Appellant Maureen Horan appeals the District Court's order granting summary judgment in favor of Appellee, Dilbet, Inc., d/b/a Windrift Hotel Resort (the "Windrift"). Horan contends that the District Court applied an incorrect standard of causation and erroneously excluded her expert witness testimony in the course of analyzing her defective product claim under the New Jersey Products Liability Act ("NJPLA"), N.J.S.A. § 2A:58C-2. For the reasons discussed below, we will affirm.

While vacationing together at the Jersey Shore in July 2010, Horan and her husband dined at Appellee's Avalon-based restaurant, the Windrift. "Around 2:32 p.m., [Horan] ordered the 'Jersey Shore Sampler' and consumed three raw clams that were on the plate." (App. 60.) She began to feel ill two days later, and after initially presenting herself at the Emergency Room of Holy Spirit Hospital, Horan was transferred to the Hershey Medical Center, where she was diagnosed with a Vibrio vulnificus ("Vibrio") sepsis infection and necrotizing fasciitis. As a result of this devastating infection, Horan was required to undergo an above-the-knee amputation of her left leg, [**3]  as well as several surgeries upon her left arm.

Vibrio is a naturally-occurring bacteria found in most shellfish (e.g., oysters and clams) and "is only dangerous in raw shellfish; if cooked, then there is no risk." (App. 56, 61.) While most people are resistant to Vibrio infection, certain individuals "are at special risk" of contracting an infection, including those who have a genetic condition called hemochromatosis.2 (App. 56.) As it turned out, Horan was a member of this special class—several months after her trip to the Windrift, medical testing revealed that, unbeknownst to Horan, she suffered from hemochromatosis and was therefore "predisposed" to Vibrio infection. (Supp. App. 140.)

 [*150]  On August 5, 2010—just six days after Horan and her husband patronized the Windrift—a Senior Registered Environmental Health Specialist of the Cape May County Board of Health, David A. Tormey, arrived at the Windrift to conduct a routine, unannounced inspection. Unaware of Horan's infection at the time, Tormey completed his inspection without incident and issued the Windrift a conditional satisfactory rating.

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724 Fed. Appx. 148 *; 2018 U.S. App. LEXIS 4110 **; CCH Prod. Liab. Rep. P20,294; 2018 WL 1003370

MAUREEN HORAN; DENNIS VACHON, Her Husband, Appellants v. DILBET, INC., DBA Windrift Hotel Resort; DOCK ST. SEAFOOD, INC.; SEA-LECT WHOLESALE SEAFOOD, INC.; JOHN DOES 1-10, fictitious names representing individuals, whose present identities are unknown, who negligently and improperly harvested, processed, cleaned, prepared, stored, distributed, handled, displayed, served and/or sold shellfish that was consumed by Plaintiff; ABC-XYZ CORPS., fictitious names representing entities that negligently and improperly harvested, processed, cleaned, prepared, stored, distributed, handled, displayed, served and/or sold shellfish that was consumed by plaintiff Maureen Horan; BIG CATCH INC., FKA Sea-Lect Wholesale Seafood Inc.; CHESTER RIVER CLAM COMPANY, INC.; BALLARD FISH & OYSTER CO., INC., DBA Cherrystone Aqua-Farms; PEERMONT HOTEL CORP, DBA Princeton Bar and Grill

Notice: NOT PRECEDENTIAL OPINION UNDER THIRD CIRCUIT INTERNAL OPERATING PROCEDURE RULE 5.7. SUCH OPINIONS ARE NOT REGARDED AS PRECEDENTS WHICH BIND THE COURT.

PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Prior History:  [**1] On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 1-12-cv-02273). District Judge: Honorable Renee M. Bumb.

Horan v. Dilbet, Inc., 2017 U.S. Dist. LEXIS 68868 (D.N.J., May 5, 2017)

CORE TERMS

clams, infection, raw, bacteria, shellfish, summary judgment, causation, consumed, oysters, dosage, levels, defective product, summary judgment motion, non-infective, salmonella, delivery, factors

Evidence, Burdens of Proof, Allocation, Torts, Products Liability, Types of Defects, Design Defects, Preponderance of Evidence, Civil Procedure, Appeals, Standards of Review, De Novo Review, Negligence, Elements, Causation, Summary Judgment Review, Standards of Review, Abuse of Discretion, Types of Evidence, Testimony, Expert Witnesses, Reviewability of Lower Court Decisions, Preservation for Review