On appeal from Superior Court, Law Division, Essex County.
Plaintiffs instituted this action against their local supermarket, Stop & Shop, and against the H.J. Heinz Company, alleging that plaintiff Everett was poisoned by a can of mushroom soup sold by Stop & Shop and manufactured by Heinz. Plaintiffs asserted claims of negligence, breach of warranty and strict liability against both defendants. Plaintiff Mary sued for loss of consortium. A jury returned a verdict against both defendants of $25,000 as to Everett and $5,000 as to Mary.
Defendants challenge several evidential rulings by the trial judge. They first question his exclusion of the testimony of their only medical expert, Dr. Lewis. The controversy arose because of the lack of certainty expressed by Dr. Lewis in his three reports provided to plaintiffs during discovery. The first report, dated June 28, 1976 and summarizing the physical examination, reached no final conclusion because Dr. Lewis wanted to examine the hospital record. He offered the following, however: "Pending that information [the hospital record], it appears to be medically improbable that the patient's hepatitis resulted from the meal in question." No basis for that hypothesis appears in the report.
A second report, also dated June 28, 1976, discussed the possible causes of Everett's hepatitis. Dr. Lewis listed the three usual causes: exposure to another person so inflicted (infectious hepatitis); internal contact with contaminated blood (serum hepatitis), a common source for those who use syringes, as do morticians (Everett was a mortician), and ingestion of contaminated food (infectious hepatitis). Of the three, he termed the last the "least likely possibility," because (1) plaintiff ate the soup on September 22 and collapsed on September 28, a period too short for the expected two-week incubation period, and (2) plaintiff's wife did not contract hepatitis despite having eaten the same soup.*fn*
Dr. Lewis issued his final report on August 5, 1976 after having reviewed the hospital record. In pertinent part he reasoned:
The doctors make a diagnosis of "infectious hepatitis" but there is no way in which the nature of that infection was established. Nothing was done which would help differentiate ordinary infectious hepatitis, from the usual unknown sources (another person carrying the virus) from food contamination source. We do know now, however, that he was Australian antigen positive. The odds now begin to shift in the direction of contamination of his blood, possibly as a result of his professional work as I previously explained. In ordinary infectious hepatitis only 20% of patients become Australian antigen positive. Serium [ sic ] hepatitis contracted from contaminated blood, some 80% become positive. The odds, obviously shift, in the direction of so-called serium [ sic ] hepatitis (now known as hepatitis-B).
He concluded by ranking the causes by possibility:
In essence, then, I would now place the possibilities, in terms of etiology, in the following order of likelihood:
1. Serium [ sic ] hepatitis (hepatitis-B) caused by contaminated blood at work.
2. Ordinary infectious hepatitis (hepatitis-A) from an unknown source in ...