THIS CAUSE comes before the Court upon Defendants' Motion for Summary Judgment (Dkt. 47), and Plaintiff's Response (Dkt. 53). The Court, having considered the motion and response, and being otherwise advised, concludes that the motion should be granted.
On October 23, 2007, Plaintiff Karen S. Colson ("Colson") arrived in Tampa, FL to take part in the American Academy of Optometry convention. While in town she stayed at the Hyatt Regency Tampa Hotel. The night of October 26, 2007, Plaintiff ordered a cheeseburger from room service for dinner and began feeling ill the next evening.
On November 1, 2007, Colson was taken to the operating room, and was found to have contracted E coli 0157: H7, a particularly virulent strain of E coli. She was further diagnosed with fulminant hemorrhagic colitis secondary to E coli, essentially a severe inflammation of the colon. Colson's condition was sufficiently severe to mandate a complete colectomy, or the total removal of her colon. In addition to the colectomy, she suffered further severe complications due to E coli poisoning.
Plaintiff contends that she became infected with E-Coli after consuming Defendants' cheeseburger. Accordingly, she sued Defendants on theories of: (1) breach of express and implied warranties; (2) negligence, and; (3) strict liability. Defendants now move for summary judgment on all of these counts, contending that Colson has failed to show that she contracted E coli as a result of consuming Defendants' cheeseburger. The question of causation is the sole issue now before the Court.
Summary Judgment Standard
Motions for summary judgment should only be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The existence of some factual disputes between the litigants will not defeat an otherwise properly supported summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original). The substantive law applicable to the claimed causes of action will identify which facts are material. Id. Throughout this analysis, the court must examine the evidence in the light most favorable to the non-movant and draw all justifiable inferences in its favor. Id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324. The evidence must be significantly probative to support the claims. Anderson, 477 U.S. at 248-49 (1986).
This Court may not decide a genuine factual dispute at the summary judgment stage. Fernandez v. Bankers Nat'l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). "[I]f factual issues are present, the Court must deny the motion and proceed to trial." Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute about a material fact is genuine and summary judgment is inappropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248; Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990). However, there must exist a conflict in substantial evidence to pose a jury question. Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).
As discussed above, the sole question now before the Court is the issue of causation; specifically, whether the Plaintiff has presented enough evidence such that a reasonable juror could find that Colson contracted E coli from consuming Defendants' cheeseburger.
Under Florida law, in order to establish causation a plaintiff must introduce evidence which shows that it is "more likely than not" that the defendant caused her injuries. Jackson County Hosp. Corp. V. Aldrich, 835 So.2d 318, 328; (Fla. 1st DCA 2002); Old Park Investments, Inc. v. The Vessel "LEDA," 469 F.Supp.2d 1201, 1209-10 (S.D. Fla. 2006). Importantly, "[a] mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced," the Court must rule for the defendant as a matter of law. Id. at 1210.
In food poisoning cases, while a plaintiff may establish causation by either direct or circumstantial evidence, courts have routinely found that "a mere showing that a person became sick subsequent to eating food is insufficient." Stevenson v. Winn-Dixie Atlanta, Inc., 211 Ga.App.572, 574 (Ct. App. Ga. 1994).
Here, Plaintiff contends that she has presented sufficient evidence showing that she contracted E coli from consuming Defendants' cheeseburger. First, she points out that she started to feel ill approximately twenty-two hours afterconsuming the burger, which is approximately within the accepted one to nine day incubation period*fn1 for E coli. Second, Colson's expert witness testified in his deposition that the cheeseburger was more likely than not the source from which Plaintiff contracted E coli. Asked to explain the basis of his opinion, Dr. Delaportas stated that since Colson "had a cheeseburger in the time frame of incubation, and that is more often the implicating food in these cases than not...I believe it's more likely than not it was that cheeseburger. I cannot rule ...