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Horan v. Dilbet, Inc.

United States District Court, D. New Jersey, Camden Vicinage

May 5, 2017


         [ECF No. 120]



         This matter comes before the Court upon Defendant Dilbet, Inc.'s (“Defendant” or the “Windrift”) Motion for Summary Judgment. Mot. Summ. J. [ECF No. 120]. On April 7, 2017, this Court held oral argument. Prior thereto, Plaintiffs Maureen Horan and Dennis Vachon (“Plaintiffs”) had satisfied this Court - barely - that they could demonstrate to a jury by a preponderance of the evidence that the clams that were delivered to the Windrift did not contain an infective dose of Vibrio at the time of delivery.[1] The Court believed this demonstration would occur through the testimony of Plaintiffs' expert witness, Dr. James D. Oliver. Generously granting all inferences in favor of Plaintiffs at summary judgment, this Court construed Dr. Oliver's testimony to be tethered to facts that he would ultimately rely on, such as the temperature of the waters at the time of the harvesting, the place of harvesting, etc. Such facts, he testified, would tend to support his testimony that the clams did not have an infective dose of Vibrio at the time they were harvested and delivered to the Windrift. In the Court's view, this was barely enough evidence to go before a jury.[2] Through the subsequent briefing and pruning of the case for trial, however, it appeared that Plaintiffs had no such evidence to present to the jury and Dr. Oliver's opinion was based on much speculation. This was the subject of a status conference with the parties on April 19, 2016.

         Thus, at oral argument this Court pressed Plaintiffs as to the evidence they intended to present through Dr. Oliver - or through other means - that the clams delivered to the Windrift more likely than not contained a non-infective dose of Vibrio. Under that theory, the Windrift's alleged mishandling would potentially be (if proven) the proximate cause through an increased risk of injury. Plaintiffs offered several arguments supporting the notion that they had sufficiently adduced evidence to make it a jury question. The Court addresses each of Plaintiffs' points below.

         First, Plaintiffs contend that even without Dr. Oliver's testimony, the “evidence” that the State of New Jersey permitted harvesting of these clams could give rise to the inference that they did not contain an infective dose of Vibrio. In other words, per Plaintiffs, the State of New Jersey would never allow clam harvesting if the clams contained infective doses of Vibrio. Therefore, Plaintiffs contend, the possible inference is that they did not contain such infective dosages. This, however, is belied by the record, and indeed, by Dr. Oliver's own testimony:

Q. Did you happen to review the defendant's answers to interrogatories indicating that there was a tag of a delivery that day, July 30th, from Sea-Lect Seafood? Did you happen to see that tag, sir?
A. I may have. I don't recall it.
THE COURT: An illegal harvest is?
THE WITNESS: Well, the -- certain regions of estuarine environments, coastal environments, are set aside where it's allowed to harvest shellfish. They are leased to various seafood entities, seafood companies. They can be closed, for example, if there is a lot of runoff and maybe salmonella, E. coli from cattle, or something like that, contaminating the area. So periodically the shellfish areas might be closed. But typically a region is leased by a harvest company and then they have the right to harvest the shellfish there. So they are designated by the states where they can harvest.
THE COURT: And so the question that was asked, you don't have any information to believe that there was any harvesting done here that was not legal?
THE WITNESS: I have no knowledge of that, no.

         BY MR. DE DONATO:

Q. And I believe, sir, in your expert report and your deposition you didn't bring up the fact there was anything but a legal harvest of shellfish here; is that correct?
A. I have nothing to indicate it was anything other than legal.
Q. Okay. Now, in the State of New Jersey is it legal to sell raw shellfish with vibrio if it's a legal harvest?
A. It's not possible, not -- would you say the question again so I can try to answer it correctly?
Q. Okay. In New Jersey can raw shellfish from a legal harvest be sold with vibrio?
A. Yes.
Q. And you told us about an infective dose of 100 to 300 as the number you use; is that correct?
A. As an estimate, yes.
Q. And there is no law in New Jersey that makes selling raw shellfish with an infective dose of 100 to 300 vibrio illegal; is that correct?
A. No, that's correct.
Q. In fact, you can legally sell raw shellfish in New Jersey with a hundred thousand vibrio in it; is that correct?
A. To my knowledge no state has any regulations about what the numbers of vibrio must be, so you are correct.

Tr. of Proceedings of June 30, 2015 at 57:20-59:14 [ECF No. 83] (hereinafter, “Tr. at ___”). As both parties recognized, clams containing infective dosages of Vibrio are routinely harvested and sold to consumers.

         Second, Plaintiffs contend that Dr. Oliver's testimony alone is sufficient to go before the jury because his opinion that the Windrift increased the risk of Vibrio infection and Plaintiffs' injury “logically” or “necessarily” presumes an underlying opinion that the clams delivered to the Windrift did not contain infective levels of Vibrio. Plaintiffs are mistaken. This is precisely why the Court held a Daubert hearing to ascertain under Rule 702 what evidence Dr. Oliver relied upon to reach his conclusions.[3]

         Dr. Oliver's opinion relating to the Windrift's proximate cause of Plaintiffs' injury must be tethered to “sufficient facts or data, ” and not presumption or supposition. Fed.R.Evid. 702(b). Rule 702 requires this. At oral argument Plaintiffs conceded that they could not introduce evidence of the very factors Dr. Oliver opined might be relevant, e.g., water temperature. Without that evidence, the record contains only an assumption - unconnected to facts in the record - that the clams did not contain infective Vibrio at the time of delivery. Even more to the point, disregarding what this Court saw as potential disputed facts that prevented this Court's entry of summary judgment, Plaintiffs' own witness, Dr. Oliver, opined that there was no way one could determine whether the clams had infective levels of Vibrio at the time of the delivery to the Windrift:

Q. I'd like to talk about the infective dose. You told us earlier that all shellfish in estuarine waters would have a VV content; is that correct?
A. That's virtually the case, yes.
Q. And in some cases because of the valve pumping or the way these shellfish process their own nutrients there could be up to a hundred thousand vibrio organisms in any given ...

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