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Virginia Supreme Court Reverses JNOV In Food Poisoning Case

In Bussey v. E.S.C. Restaurants, the Virginia Supreme Court reversed the trial court's award of JNOV to the defendant in a food poisoning case, and reinstated a jury verdict of $111,765.25.

The trial court granted the JNOV because it found that the testimony of the treating physician as to causation lacked sufficient factual basis because of “the non-contemporaneous medical examination, the lack of laboratory testing, and the discrepancy in the timeline.”

The Supreme Court rejected that, and among other things found that although the treating physician did not use laboratory testing to definitely identify food poisoning, Virginia law has never required such testing.  In this case, it was enough for the treating physician to have excluded other causes of the symptoms, and to have relied upon other factors.  The Court summarized the relevant Virginia law as follows:

In the context of unwholesome food, the proof necessary to sustain a cause of action based upon negligence or breach of warranty is the same. "[T]he burden requires the plaintiff to show ‘(1) that the goods were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that the unreasonably dangerous condition existed when the goods left the defendant’s hands.’ " Harris Teeter v. Burroughs, 241 Va. 1, 4, 399 S.E.2d 801, 802 (1991) (quoting Logan v. Montgomery Ward, 216 Va. 425, 428, 219 S.E.2d 685, 687 (1975)). The implied warranty of wholesomeness applies to the sale of food by restaurants. Levy v. Paul, 207 Va. 100, 106, 147 S.E.2d 722, 726 (1966). With regard to proximate causation where there is no direct proof, the circumstantial evidence must be sufficient to show that the causation alleged is "a probability rather than a mere possibility." Southern States Coop. v. Doggett, 223 Va. 650, 657, 292 S.E.2d 331, 335 (1982).

The Court concluded in this case that there was sufficient credible evidence of record to support the jury's verdict.