Judge shouldn't have excluded witnesses, Justices rule

By Steve Korris | Dec 4, 2007


CHARLESTON – Kanawha Circuit Judge Paul Zakaib shouldn't have excluded two doctors from testifying in a food poisoning lawsuit against Wendy's International restaurants, the West Virginia Supreme Court of Appeals decided.

In a Nov. 21 ruling, four of five Justices agreed that Zakaib must reopen the suit, which he threw out for lack of evidence after excluding Peter Gregor and Ewen Todd.

Gregor treated the plaintiff, Clinton San Francisco of Logan, at Logan General Hospital.

Todd directs the National Food Safety and Toxicology Center at Michigan State University.

"The side trying to defend the admission of expert evidence must be given an adequate chance to do so," Justice Larry Starcher wrote for the majority. "Courts must be cautious –- except when defects are obvious on the face of a proffered expert opinion –- not to exclude debatable scientific evidence without affording the proponent of the evidence adequate opportunity to defend its admissibility."

In 2002, San Francisco and his wife Jessie ordered lunch at a Wendy's in Charleston. His meal included a hamburger.

They started eating in their car on the way to Logan. Clinton San Francisco thought his hamburger tasted funny, looked red and felt soft.

He discarded most of it.

Soon his stomach hurt and he began sweating profusely. Within two hours, he suffered vomiting and diarrhea.

Two days later, in the emergency room of Logan General Hospital, he vomited almost half a gallon of material.

Gregor examined him and performed "differential diagnosis," considering and ruling out possible causes of his illness.

He ruled out everything but an undercooked burger.

San Francisco sued Wendy's International in 2004, claiming it sold an unsafe, unwholesome or unfit product.

He identified Gregor and Todd as expert witnesses.

Gregor testified in a deposition that, "If you ask me, do I think a hamburger at a restaurant with diarrhea, vomiting and fluid loss shortly thereafter was the cause of the hospitalization, I would say yes."

Todd testified in a deposition that he ruled out Escherichia coli bacteria as the cause of the illness because of the speed of the reaction.

Todd blamed verotoxin produced by E. coli. He testified that in three to seven days, E. coli can produce enough verotoxin to cause illness.

He quoted a study finding that four days after E. coli was added to ground beef, verotoxins formed.

Wendy's International moved to exclude Gregor and Todd. In March 2006, Zakaib granted the motion.

Zakaib found that Gregor lacked qualification as an expert by knowledge, skill, experience, training or education.

He found Todd's opinion unreliable.

Finding insufficient evidence in the absence of expert witnesses, he granted summary judgment in favor of Wendy's International.

San Francisco's attorneys, Guy Bucci and Blake Carter of Charleston and Pamela Lambert of Gilbert, persuaded the Supreme Court of Appeals to review the decision.

Teresa Kleeh, Scott Johnson and Joanna Tabit of Charleston represented Wendy's International.

San Francisco's legal team defended Gregor's qualifications, arguing that he had treated many gastrointestinal disorders in 23 years of practice.

The legal team for Wendy's International argued that Gregor did not specialize in gastroenterology and he had never previously testified about foodborne illness.

Wendy's specifically challenged Gregor's technique of differential diagnosis.

San Francisco's team defended Todd's qualifications, stressing his knowledge of food safety and arguing that he offered a logical theory supported by published literature.

Wendy's team argued that Todd engaged in speculation that evidence did not support. They pointed out that hospital tests found neither E. coli nor verotoxins.

The majority upheld the qualifications of both doctors.

On behalf of Gregor, Starcher wrote, "…we have rejected any notion of imposing overly rigorous requirements of expertise."

He wrote that a broad range of knowledge, skill, and training qualifies an expert as such. He wrote that vigorous cross examination, presentation of contrary evidence, and careful instruction on the burden of proof are the appropriate means of attacking shaky but admissible evidence.

He approved differential diagnosis, writing that an overwhelming majority of courts have found it sufficiently valid.

On behalf of Todd, Starcher wrote that he sufficiently connected his testimony with the facts of the case.

"Dr. Todd's opinion is admissible because he explained precisely how the conclusions were reached, and pointed to an objective source to show that his conclusions were based on a scientific method," he wrote. "We believe that the conflict between the positions taken by the parties regarding Dr. Todd's conclusions did not render his testimony unreliable, but instead created a jury issue regarding the weight to be given to the testimony."

Chief Justice Robin Davis and Justices Spike Maynard and Joseph Albright concurred with Starcher. Justice Brent Benjamin dissented.

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