Present: All the Justices
SUSIE CAROL BUSSEY
v. Record No. 050358 OPINION BY JUSTICE DONALD W. LEMONS
November 4, 2005
E.S.C. RESTAURANTS, INC.,
t/a GOLDEN CORRAL
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Charles N. Dorsey, Judge
In this appeal, we consider whether there was sufficient
evidence to support a jury verdict for the plaintiff upon her
cause of action for negligence and implied breach of warranty
and whether the trial court erred in setting aside the jury’s
verdict.
I. Facts and Proceedings Below
Susie Carol Bussey (“Bussey”) became acutely ill after
eating beef tips at a Golden Corral restaurant. She filed a
Motion for Judgment against E.S.C. Restaurants, Inc., t/a
Golden Corral (“Golden Corral”), claiming negligence and
breach of implied warranty. The evidence at the jury trial
consisted of testimony from both lay witnesses and medical
experts. The jury returned a verdict for Bussey and awarded
her $111,765.25 in damages. Golden Corral filed a motion to
set aside the verdict on the basis that the evidence presented
at trial was insufficient to prove proximate causation.
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The trial court granted the motion and cited an “apparent
lack of factual basis” for the treating physician’s opinion on
these questions. The trial court concluded that there is “no
proof of a causal connection” outside of the plaintiff’s own
testimony. Bussey appealed the trial court’s order setting
aside the verdict.
II. Analysis
A. Standard of Review
A trial court is authorized to set aside a jury verdict
only if it is plainly wrong or without credible evidence to
support it. Jenkins v. Pyles, 269 Va. 383, 388, 611 S.E.2d
404, 407 (2005); Rogers v. Marrow, 243 Va. 162, 166, 413
S.E.2d 344, 346 (1992); Lane v. Scott, 220 Va. 578, 581, 260
S.E.2d 238, 240 (1979). See Code § 8.01-430. This authority
is explicit and narrowly defined. Jenkins, 269 Va. at 388,
611 S.E.2d at 407; Rogers, 243 Va. at 166, 413 S.E.2d at 346.
Trial court judges must accord the jury verdict the
utmost deference. If there is a conflict in the testimony on
a material point, or if reasonable people could differ in
their conclusions of fact to be drawn from the evidence, or if
the conclusion is dependent on the weight to be given to the
testimony, the trial court may not substitute its conclusion
for that of the jury merely because the judge disagrees with
the result. Id.; Lane, 220 Va. at 581, 260 S.E.2d at 240.
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Because the jury’s function is to determine the
credibility of witnesses and the weight of the evidence, and
to resolve all conflicts in the evidence, we will reinstate
the verdict on appeal if credible evidence supports the
verdict. Jenkins, 269 Va. at 388, 611 S.E.2d at 407; Hoar v.
Great E. Resort Mgmt., Inc., 256 Va. 374, 378, 506 S.E.2d 777,
780 (1998); Carter v. Lambert, 246 Va. 309, 314, 435 S.E.2d
403, 405-06 (1993); Rogers, 243 Va. at 166, 413 S.E.2d at 346.
On appeal, evidence is deemed to be credible unless it is “so
manifestly false that reasonable men ought not to believe it,
or it [is] shown to be false by objects or things as to the
existence and meaning of which reasonable men should not
differ." Burke v. Scott, 192 Va. 16, 23, 63 S.E.2d 740, 744
(1951). Accord Commonwealth v. McNeely, 204 Va. 218, 223, 129
S.E.2d 687, 690 (1963). In reviewing the evidence, we will
accord the recipient of the verdict the benefit of all
substantial conflicts of evidence, and all fair inferences
that may be drawn from the evidence. Jenkins, 269 Va. at 388,
611 S.E.2d at 407; Rogers, 243 Va. at 166, 413 S.E.2d at 346
(citing Graves, 226 Va. at 169-70, 306 S.E.2d at 901).
B. Evidence presented at trial
The evidence at trial consisted of lay testimony and
medical expert testimony. Bussey testified that she ate lunch
with a companion at Golden Corral. The companion's
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uncontradicted testimony showed that the pair arrived at
Golden Corral after 10:30 a.m. Bussey ordered beef tips
cooked “well done,” but after eating some portion of the meal
she complained that the meat “smelled bad.” The manager was
summoned to her table, and according to Bussey, he stated:
“The meat is bad . . . I just told the guy five minutes ago
not to cut that piece of meat up in the back, it’s no good.”
Bussey decided to leave without eating anything more.
Her uncontradicted testimony was that she did not eat
anything else on the day in question. Further, Bussey could
not recall eating anything the day before except a bowl of
cereal for breakfast, establishing a period without other food
in excess of 24 hours before the meal at Golden Corral.
Later that day she began to experience nausea and
diarrhea. The day after she ate at Golden Corral, Bussey was
still experiencing gastrointestinal disturbance and she went
to the emergency room where she was treated with intravenous
fluids and medications. The next day (two days after eating
at Golden Corral) she went to her treating physician, Dr.
Gaylord, who diagnosed her condition as food poisoning. She
was hospitalized for four days.
Additional lay testimony corroborated much of Bussey’s
version of events. Her dining companion, testifying for the
defense, confirmed that Bussey ate beef tips on the day in
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question and complained about the smell. The restaurant
manager recalled Bussey’s complaint about the smell and taste
of her beef tips.* Bussey’s fiancé, whose deposition was read
into evidence, personally observed her ill state the evening
after she ate the beef tips.
Bussey also presented expert testimony from her treating
physician, Dr. Gaylord, who is board certified in internal
medicine. He saw Bussey two days after she ate at Golden
Corral and diagnosed her symptoms as being caused by
staphylococcal food poisoning. Dr. Gaylord based his
diagnosis upon a multitude of factors including the history
provided by Bussey, review of her medical record from the
emergency room, direct observation and evaluation of her
symptoms, and the swift resolution of her illness in response
to hydration. Additionally, he conducted lab testing that
excluded other causes of gastrointestinal distress, e.g.
ulcer, gastrointestinal bleeding, pancreatitis. He testified
that her symptoms could not have been caused by a casual
contact with bacteria such as having dirty hands.
*
Although Golden Corral presented evidence that
specifically contradicted Bussey’s version of her conversation
with the restaurant manager, we are required to give Bussey
the benefit of that conflict and consider the evidence in the
light most favorable to the party who received the verdict.
Jenkins, 269 Va. at 388, 611 S.E.2d at 407; Rogers, 243 Va. at
166, 413 S.E.2d 344 (citing Graves, 226 Va. at 169-70, 306
S.E.2d at 901).
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C. Sufficiency of the evidence
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).
In his order setting aside the jury verdict, the trial
judge opined that the testimony of Dr. Gaylord lacked a
sufficient factual basis, and the remaining circumstantial
evidence consisting of lay testimony was insufficient to
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support the jury verdict. We disagree with both of the trial
court’s holdings.
Certainly, expert testimony is inadmissible if it is too
speculative or lacks a sufficient factual basis. Forbes v.
Rapp, 269 Va. 374, 381, 611 S.E.2d 592, 596 (2005); John v.
Im, 263 Va. 315, 319-20, 559 S.E.2d 694, 696 (2002);
Countryside Corp. v. Taylor, 263 Va. 549, 553, 561 S.E.2d 680,
682 (2002); see Code §§ 8.01-401.1 and –401.3. According to
the trial court, Dr. Gaylord’s testimony lacked sufficient
factual basis because of “the non-contemporaneous medical
examination, the lack of laboratory testing, and the
discrepancy in the timeline.” We will address each issue
seriatim.
Dr. Gaylord examined Bussey less than two days after the
onset of her illness. At that time, he analyzed the factors
discussed in his testimony and reviewed the emergency room
report prepared the previous evening. The essential nature of
Bussey’s symptoms remained the same from onset of illness
until Dr. Gaylord’s examination.
Next, the trial court cites the lack of laboratory tests
showing the existence of staphylococcal bacteria. We have
never required positive proof by scientific testing to
establish a factual basis for medical diagnosis and opinion.
Dr. Gaylord cited a multitude of factors, including laboratory
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testing that excluded other causes of illness, which
contributed to his opinion. Moreover, he testified that food
poisoning is a “fairly common illness” for which scientific
testing would not be cost effective, and the “emphasis is on
the last meal before the event.” We are satisfied on this
point that Dr. Gaylord’s opinion was based sufficiently on
facts known to him and was not speculative. Cf. Forbes, 269
Va. at 382, 611 S.E.2d at 597 (excluding expert testimony
given “off the top of [his] head”).
With regard to the alleged timeline discrepancy, Golden
Corral makes much of the two hour difference between Bussey’s
testimony concerning the onset of illness four hours after
eating, and Dr. Gaylord’s testimony that “most cases of
bacterial food poisoning with manifestations such as hers
arise within 6 to 24 hours.” Of course, Bussey cannot rise
above her own testimony, Massie v. Firmstone, 134 Va. 450, 114
S.E.2d 652 (1922), but here the suggested conflict merely
reflects the difference between symptoms experienced in the
general population and those experienced by Bussey in
particular, and created a jury issue regarding the weight to
be given to the testimony.
For these reasons, we hold that Dr. Gaylord’s expert
testimony concerning causation had a sufficient factual basis
and the evidence was properly before the jury.
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Turning to the lay testimony, we begin with the
proposition that, generally, lay testimony is admissible to
prove proximate causation. Todt v. Shaw, 223 Va. 123, 127,
286 S.E.2d 211, 213 (1982) (lay testimony sufficient to raise
a jury question even when expert testimony failed to establish
causation); Sumner v. Smith, 220 Va. 222, 226, 257 S.E.2d 825,
827 (1979) (“[direct medical] evidence is not a prerequisite
to recovery”). In Sumner, we held that testimony of the
plaintiff, indirect medical evidence, and the reasonable
inferences derived therefrom presented a jury issue as to
causal connection. 220 Va. at 225-26, 257 S.E.2d at 827. See
also Gwaltney v. Reed, 196 Va. 505, 509, 84 S.E.2d 501, 503
(1954) (plaintiff’s testimony of pain occurring soon after an
accident was sufficient to raise a jury question on
causation). “All that is required is that a jury be satisfied
with proof which leads to a conclusion with probable certainty
where absolute logical certainty is impossible.” Bly v.
Southern Ry. Co., 183 Va. 162, 176, 31 S.E.2d 564, 570 (1944).
Our holdings in Sumner and Bly are directly applicable here.
Cases involving food poisoning present unique circumstances
because the primary source of evidence is usually consumed and
transmuted in the ordinary course of its use. As a result,
most cases will necessarily rely upon circumstantial evidence.
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We hold that the lay testimony coupled with the doctor’s
diagnosis was sufficient to support the jury verdict. Bussey
ate only one meal within a 36 hour period, the meal consisted
of beef that “smelled bad,” and thereafter she suffered a
sudden illness that was diagnosed as food poisoning. The
evidence is neither speculative nor scant, and the jury
verdict naturally follows from fair inferences drawn from the
evidence.
The right to a trial by a jury in a civil case is
constitutional in origin. Article 1, Section 11 of the
Constitution of Virginia provides that in civil suits
respecting property interests, "trial by jury is preferable to
any other, and ought to be held sacred.” A jury’s verdict
should be set aside only where it is plainly wrong or there is
no credible evidence in the record to support that verdict.
Such circumstances did not exist in this case.
D. Conclusion
We hold that the evidence was sufficient to support the
jury’s verdict and that the trial court erred in setting aside
the verdict for the plaintiff and entering judgment for the
defendant. Accordingly, we will reverse the judgment of the
trial court, reinstate the jury verdict, and enter judgment
for the plaintiff, Bussey.
Reversed and final judgment.
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