Mary Hernandez, Individually and as Personal Representative of the Estate of Joseph Hernandez, and Sons, Carlos Cruz Hernandez and Jose Cruz Hernandez v. the Kroger Company
01-15-00836-CV
Tex. App.Oct 20, 2015Background
- On September 3, 2011 Mary Hernandez purchased a whole cantaloupe from Kroger; her husband Joseph Hernandez ate it on September 6, 2011.
- Within days Joseph developed fever, diarrhea, incontinence, headaches and later perianal symptoms; he was treated by multiple physicians and hospitalized at times.
- Medical testing and treating physicians later identified Clostridium difficile (Nov. 2011) and, per Dr. William Burns’ affidavit and testing sent to Quest (Oct. 16, 2012), a positive test for Listeria; Dr. Burns opined infection was from contaminated food (the cantaloupe).
- Plaintiffs (Estate/Mary Hernandez and sons) sued Kroger and related entities asserting claims including violation of Texas public policy re: sale of unsafe food (strict liability), DTPA, negligence/negligence per se, wrongful death and survival, and statutory food-safety violations and failures to disclose growers/suppliers.
- Trial court granted defendants’ summary judgment on September 4, 2015; plaintiffs timely appealed (notice filed Sept. 30, 2015).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether seller is strictly liable for contaminated food under Texas public policy/precedent | Kroger sold adulterated/unsafe cantaloupe causing illness and death; Texas precedent imposes strict liability on sellers of unsafe food | Kroger argued summary judgment appropriate (likely contesting strict liability application or factual causation) | Summary judgment granted to defendants (trial court) |
| Causation — whether cantaloupe caused Listeria infection and death | Treating physicians (Dr. Burns) and tests link plaintiff’s Listeria to consumption of the cantaloupe; affidavits and medical records support causation | Defendants disputed causal proof and contested admissibility/weight of the medical evidence | Trial court accepted defendant position for summary judgment (plaintiffs appealed) |
| Adequacy and timeliness of plaintiffs’ discovery re: growers/suppliers (Jensen Farms/Frontera) | Kroger delayed/failed to timely produce discovery and identify growers; plaintiffs sought additional discovery to pursue supplier liability | Kroger maintained discovery responses were sufficient or that delay lacked good cause for plaintiffs’ requested relief | Trial court resolved in favor of defendants at summary judgment stage |
| Statutory/regulatory claims (FDCA-related labeling/country-of-origin/warnings) | Kroger failed to post country-of-origin, failed to warn of Listeria risk, sold misbranded/adulterated food violating federal/ state law | Kroger contended statutory/regulatory claims did not support liability or were inadequately pleaded/proved | Trial court granted summary judgment for defendants on these theories |
Key Cases Cited
- Jacob Decker & Sons, Inc. v. Capps, 164 S.W.2d 828 (Tex. 1942) (Texas public policy recognizing seller liability for unsafe food)
- Griggs Canning Co. v. Josey, 164 S.W.2d 825 (Tex. 1942) (same; foundational Texas authorities on food-safety public policy)