Latonya Young v. Kraft Foods Global, Inc. et al. (2011)

MEMORANDUM OF DECISION

This is a product liability action brought against the manufacturer and seller of a package of six (6) Oreo cookies the plaintiff purchased from a Waterbury market on October 29, 2005.   Prior to the hearing in damages on May 11, 2011, the matter was withdrawn as against the manufacturer and the plaintiff proceeded on that date as against the seller who had been defaulted for failure to appear on April 17, 2008.   The only witness to testify at the hearing in damages was the plaintiff who now resides in North Carolina.

At the trial, Ms. Young testified that she brought the package of cookies home and, while talking on the telephone, she proceeded to open the package and to consume two (2) Oreos.   She noted nothing unusual about either the appearance or taste of the cookies.   Having consumed them, however, she then noted a “maggot” on the top of the third cookie and thus ate no others.   Sometime that evening, she began to experience stomach pain, diarrhea and vomiting.   The next day (10/30/05), she presented at the emergency room of St. Mary's Hospital.¹  The hospital record (Exh. # 3) noted a complaint of “abdominal pain unspecified site,” and vomiting and diarrhea after she “ate cookies with maggots.”   It noted there was no vomiting or nausea while in the E.R. and that, when discharged within forty-five (45) minutes of presentation, there was “no pain.”   She was advised to follow up with her doctor as needed.   The medical bill for that single visit was three hundred twenty dollars ($320.00).

She sought no follow-up care until December 5, 2005, when she presented at Staywell Health Center in Waterbury and gave a history of stomach upset the night of November 12, 2005 (wrong date), having eaten two (2) Oreos and noticing maggots in the package.²  She also indicated that she had vomited on the following day, November 13, 2005 (also the wrong date).   She complained of having had nausea followed by vomiting once the previous week, of feeling “hot” for a few days, and of back pain and leg cramps.   She was seen again on December 19, 2005, for hypertension, ongoing nausea, and for an upset stomach after smelling or consuming certain foods.   The record of that visit noted no diarrhea or constipation but “occasional lower abdomen pains.”   No other relevant findings were made.   The medical bill for those two (2) visits was three hundred forty-four dollars ($344.00).

No treatment was then sought until January 8, 2007, when she was seen at Heritage Hospital in North Carolina where she then—and now—resides.   The records from that hospital are remarkable for a number of reasons:

1) On not a single record created with regard to eight (8) scheduled visits is there any reference to the 10/29/05 purchase and consumption of tainted cookies followed by stomach pain, diarrhea, or vomiting.

2) On not a single record is there any indication of prior treatment necessitated by her consumption of tainted Oreo cookies.

3) Of the eight (8) appointments scheduled, the plaintiff attended only one (1);  she was a “no show” for six (6) scheduled visits, and cancelled one (1) on the day of the visit.

4) On the first visit (January 8, 2007—over a year since last seen at Staywell Health Center) it was noted she had “problems with stomach” and had stomach pain and vomiting “triggered by the smell or sight of food” but she denied having diarrhea.   Her past medical history noted only an ovarian cyst though the Staywell Health Center records noted the history of a splenectomy and made reference to a blood disease without further explication.   For that reason, blood work and sundry other lab tests were done at Heritage Hospital and the patient was to return in one (1) week for follow-up.   She failed to show, however, for that appointment on 1/22/07 and she cancelled the next scheduled date of 1/25/07.

5) The 1/8/07 note from Heritage Hospital, while describing her as “well nourished, well hydrated, and in no acute distress,” interestingly referenced both “chronic kidney disease” and a “renal failure disease study.”   Whether they relate solely to the prior splenectomy in or about the year 2000 or bear any relevance to the plaintiff's claims of continuing diarrhea and vomiting the court is not able to state.

6) The remaining five (5) scheduled visits at Heritage Hospital (2/19/07, 3/26/07, 6/4/07, 7/11/07, and 8/6/07) were, as earlier stated, “NO SHOWS.”

The court is therefore unable to attribute any of the amount charged for treatment at Heritage Hospital ($345.00) to the cookie experience.

The court does not find credible the plaintiff's testimony that, five and one-half (5–1/2) years after the alleged incident, she continues to experience—two (2) weeks out of every four (4) weeks as she testified—diarrhea and vomiting when she was entirely unfaithful to treatment scheduled in the past and in fact has received no treatment since January of 2007 (almost 3–1/2 years ago).   Nor is the lady's claim her adverse reaction to certain foods is, in the absence of any medical testimony, attributable to the underlying incident.

CONCLUSION

The defendant's sale of the Oreo cookies was to place in the stream of commerce a defective product which caused harm to the plaintiff.   The seller breached its implied warranty of merchantability in that the product was not fit for its intended purposes.

Judgment for the plaintiff enters in the amount of $666.00 for economic damages (St. Mary's and Staywell Health Center) and $500.00 for non-economic damages, for a total award of $1,166.00.

SHEEDY

FOOTNOTES

FN1. She testified to having brought with her to the hospital the opened package of Oreos with maggot though the hospital report does not reference the maggot..  FN1. She testified to having brought with her to the hospital the opened package of Oreos with maggot though the hospital report does not reference the maggot.

FN2. She also testified that, on some later date, she returned the package of Oreos to this defendant who then threw the package into a refuse container..  FN2. She also testified that, on some later date, she returned the package of Oreos to this defendant who then threw the package into a refuse container.

Sheedy, Barbara J., J.