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16-P-504 Appeals Court
KELVIN SANTIAGO & others1 vs. RICH
PRODUCTS CORPORATION & others.2
No. 16-P-504.
Middlesex. September 8, 2017. - December 28, 2017.
Present: Milkey, Hanlon, & Shin, JJ.
Negligence, Spoliation of evidence, School. Food. School and
School Committee, Liability for tort. Practice, Civil,
Instructions to jury, Summary judgment.
Civil action commenced in the Superior Court Department on
August 21, 2006.
A motion for summary judgment was heard by Garry V. Inge,
J.; the case was tried before Bruce R. Henry, J., and the entry
of judgment was ordered by him.
Marc Diller (Jonathon D. Friedmann also present) for the
plaintiffs.
Myles W. McDonough for Rich Products Corporation & others.
1 Julia Rivera and Juan Santiago, individually and as next
friends of Kelvin Santiago.
2 Rich-Seapak Corporation, Casa Di Bertacchi Corporation,
and the city of Lowell.
2
Hannah B. Pappenheim, Assistant City Solicitor (Elliott
Veloso, Assistant City Solicitor, also present) for city of
Lowell.
SHIN, J. Kelvin Santiago (Kelvin) suffered traumatic brain
damage after choking on meatballs served in the cafeteria of a
city of Lowell (city) public school. He and his parents filed
suit against the city and Rich Products,3 the company that
produced and sold the meatballs, asserting negligence and breach
of the implied warranty of merchantability, among other claims.
A judge allowed the city's motion for summary judgment, and,
after seventeen days of trial, a jury returned a verdict in Rich
Products' favor.4 On appeal the plaintiffs claim error in the
trial judge's denial of their request for an adverse-inference
instruction against Rich Products for alleged spoliation of
documentary evidence and in the motion judge's allowance of
summary judgment for the city. We conclude that the trial judge
did not abuse his discretion in declining to give a spoliation
instruction because the plaintiffs failed to establish the
3 The three corporate defendants are affiliated entities.
We will refer to them collectively as Rich Products.
4 The jury found that Rich Products was negligent but that
the negligence was not a substantial contributing factor to the
plaintiffs' injuries. They further found that Rich Products did
not breach the implied warranty of merchantability by selling
meatballs that were unreasonably dangerous. Although the
plaintiffs argued below that these verdicts are inconsistent,
they do not renew that argument on appeal.
3
necessary factual predicate that Rich Products lost or destroyed
the missing evidence when it knew or should have known of a
potential lawsuit. We further conclude that the motion judge
correctly ordered the entry of summary judgment for the city
because no rational jury could have found that its employees
acted negligently. For these reasons we affirm the judgment.
Background. 1. The choking incident. The basic facts
regarding what occurred during the incident are not in dispute.
In 2004 Rich Products began producing meatballs to sell to
schools through the Federal government's National School Lunch
Program. The meatballs contained a binding agent called Profam
974, which is a soy protein isolate. The use of Profam 974
enabled Rich Products to satisfy the United States Department of
Agriculture (USDA) requirement that each school lunch contain
two ounces of protein per student.
At 11:00 A.M. on March 15, 2006, Kelvin, then a first-grade
student, went to the school cafeteria for lunch, which that day
was spaghetti and four meatballs produced and sold by Rich
Products. At around 11:11 A.M., a cafeteria supervisor
announced that the children had four minutes to finish eating
lunch. Soon thereafter, Kelvin began choking.
Various school personnel present in the cafeteria tried to
dislodge the obstruction in his airway using back blows and the
Heimlich maneuver. Two school nurses quickly arrived and
4
continued with the Heimlich maneuver, followed by chest
compressions and cardiopulmonary resuscitation. At some point
an employee called 911. Paramedics were dispatched at 11:15
A.M. and arrived at the school at 11:19 A.M. When they arrived,
Kelvin was neither conscious nor breathing and had no pulse.
Using forceps, a paramedic extracted several large pieces of
meatball out of Kelvin's airway. By that time, however, Kelvin
had been deprived of oxygen for too long, and he suffered
catastrophic brain damage.
Immediately after the incident, the school's custodian was
directed to clean up the cafeteria. While doing so, he
discarded the pieces of meatball that had been removed from
Kelvin's airway. The record reflects that the remaining
meatballs in the school's possession were ground up and used to
make spaghetti sauce.
2. Proceedings in the trial court. The plaintiffs filed
suit just a few months later, in August of 2006. After years of
discovery and motion practice, the motion judge ordered the
entry of summary judgment for the city, finding the evidence
insufficient to create a triable issue of whether the city was
negligent. The motion judge concluded in the alternative that
the city was immune from liability pursuant to certain
exemptions in the Massachusetts Tort Claims Act, G. L. c. 258.
5
One week before the scheduled start of trial, the
plaintiffs filed motions in limine seeking sanctions against
Rich Products for alleged spoliation of (1) laboratory notebooks
and production records from 2004 relating to the development of
the formula for the meatball and (2) the results of product-
development and production testing from 2004.5 The trial judge
deferred ruling on the motions, stating that he "want[ed] to
hear what the evidence is with respect to exactly what it was
that was done with respect to the missing materials."
The plaintiffs' claims against Rich Products then proceeded
to trial in March of 2014. The plaintiffs' theory of the case
was that the use of Profam 974 caused Rich Products' meatball to
have an unreasonably dangerous texture, presenting a choking
hazard. In support of this theory, the plaintiffs presented an
expert who had recreated the meatball -- using a detailed
formula provided by Rich Products in answers to interrogatories
-- for the purpose of comparing its texture to meatballs that
did not contain Profam 974. This expert opined that the
inclusion of Profam 974 made Rich Products' meatball more
difficult to chew and break apart than the others in her test
5 The plaintiffs also alleged that Rich Products failed to
produce a document showing that the USDA approved the meatball
in 2004. Rich Products produced that document at trial,
however, after requesting it from the USDA through the Freedom
of Information Act.
6
study. Another of the plaintiffs' experts opined that both the
size and texture of the meatball presented a choking risk to
children.
At the close of the evidence, the judge asked the
plaintiffs' counsel, "As far as the spoliation instruction, what
information does the jury have in order for them to make a
determination that normally they would have to make if I gave
them that instruction? What information do they have as to when
these various categories of things were destroyed?" Counsel
responded by pointing to Rich Products' corporate policy
requiring retention of documents for three years. The judge
then ruled that there was no spoliation, that he would not give
an instruction, but that he would not "prevent the plaintiffs
from arguing the lack of evidence in that regard."
Discussion. 1. Spoliation. We review the judge's
decision for abuse of discretion.6 See Scott v. Garfield, 454
Mass. 790, 798 (2009). Under the doctrine of spoliation, a
6 We reject Rich Products' argument that, because the judge
did not specify the grounds for his ruling, we should assume
that he made "implicit" factual findings against the plaintiffs
on every element of spoliation, which we would then review for
clear error. The argument is illogical and is not supported by
the authority Rich Products cites. Furthermore, we believe it
evident from the judge's questioning that the basis for his
finding of no spoliation was that the plaintiffs put forth no
"information . . . as to when these various categories of things
were destroyed."
7
judge can impose sanctions against a litigant who "negligently
or intentionally loses or destroys evidence that the litigant
. . . knows or reasonably should know might be relevant to a
possible action, even when the spoliation occurs before an
action has been commenced." Ibid. See Mass. G. Evid. § 1102
(2017). The premise underlying the doctrine is that a party who
culpably destroys evidence "should be held accountable for any
unfair prejudice that results." Keene v. Brigham & Women's
Hosp., Inc., 439 Mass. 223, 234 (2003). The doctrine does not
extend to "a fault-free destruction or loss of physical
evidence." Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 127
(1998). Thus, as the parties agree, the party seeking sanctions
has the burden to "produce[] evidence sufficient to establish
certain preliminary facts," Scott, 454 Mass. at 799, including
"that a reasonable person in the spoliator's position would
realize, at the time of spoliation, the possible importance of
the evidence to the resolution of the potential dispute." Id.
at 798 (quotation omitted). See Kippenhan, 428 Mass. at 127
(sanctions are not "justified if the [evidence] was destroyed,
lost, or otherwise disposed of before [the litigant] knew or
reasonably should have known of the possibility of a suit").
Here, the judge was within his discretion not to give a
spoliation instruction because the plaintiffs offered no
evidence to establish the basic threshold fact of when the
8
documents at issue went missing. Without establishing this
threshold fact, the plaintiffs necessarily could not show that
Rich Products lost or destroyed the documents when it knew or
should have known of their potential significance. Consistent
with the argument the plaintiffs made below, the only evidence
they point us to is testimony regarding Rich Products' three-
year retention policy. But even if someone at Rich Products
discarded the documents before the expiration of the three-year
timeframe, that still would not prove that Rich Products lost or
destroyed the documents after receiving notice of this lawsuit.
Indeed, Rich Products offered evidence that the documents could
have been lost in 2005 -- the year before Kelvin sustained his
injury -- when a reorganization of the company caused "a lot of
people . . . and a lot of documents [to be] moved around."
Beyond this, no evidence was presented as to the circumstances
or timeframe of the loss. The judge thus acted within his
discretion in finding that the plaintiffs failed to establish
the necessary factual predicates of spoliation. See Vigorito v.
Ciulla Builders, Inc., 57 Mass. App. Ct. 446, 454-455 (2003)
(judge properly denied spoliation motion where no information
was offered as to circumstances in which evidence was lost).
Moreover, even had there been spoliation, any prejudice to
the plaintiffs was remedied by the judge's ruling allowing them
to make use of the fact that the documents were missing. "Once
9
spoliation has been established, the judge has the discretion to
craft a remedy addressing 'the precise unfairness that would
otherwise result.'" Westover v. Leiserv, Inc., 64 Mass. App.
Ct. 109, 113 (2005), quoting from Fletcher v. Dorchester Mut.
Ins. Co., 437 Mass. 544, 550 (2002). "The spectrum of remedies
includes allowing the party who has been aggrieved by the
spoliation to present evidence about the preaccident condition
of the lost evidence and the circumstances surrounding the
spoliation . . . ." Gath v. M/A-COM, Inc., 440 Mass. 482, 488
(2003). "As a general rule, a judge should impose the least
severe sanction necessary to remedy the prejudice to the
nonspoliating party." Keene, 439 Mass. at 235.
The plaintiffs here have not shown how the alleged
spoliation prejudiced them in any significant way. With respect
to the first category of missing documents -- laboratory
notebooks and other records relating to the development of the
meatball formula -- the plaintiffs' claim of prejudice is that
they did not have "confirmation regarding the actual formula"
and "the spoliated documents would have shown that Rich
[Products] changed the formula one year into production."7 But
7 The plaintiffs' theory appears to be that the 2004 records
would reveal a different formula than the one Rich Products was
using in 2006, casting doubt both on the accuracy of the formula
provided in Rich Products' interrogatory answers and on its
claim that it made fifty-one million meatballs using the same
formula without any other incidents of choking.
10
these issues were thoroughly explored at trial, and the
testimony was consistent that, other than the removal of sesame
seeds in 2006, Rich Products had made no changes to the formula
since 2004. This testimony was supported by evidence that the
approval application Rich Products submitted to the USDA in 2004
set out the same formula as the application it submitted in
2010. Also, if the plaintiffs had doubts as to the accuracy of
the formula provided by Rich Products, they could have obtained
comparable meatballs from the same product line for their
experts to examine. See Westover, 64 Mass. App. Ct. at 114
(movant was not prejudiced by opposing party's negligent loss of
chair with alleged design defect because its experts could
examine "chairs of the same make and model").8
8 At oral argument the plaintiffs suggested that no exemplar
was available because Rich Products started using a different
formula shortly after the choking incident. The suggestion
seems to be based on evidence that, in August of 2006, Rich
Products submitted an approval application to the USDA that
listed a different formula than the one that appears on the 2004
application. But several witnesses testified, under oath, that
the 2006 application was submitted in error and that that
formula was never used in production. Moreover, even assuming
the formula was changed in 2006, an exemplar would still have
been available to the plaintiffs because (1) there was at least
a five-month gap between when Kelvin's injury occurred and when
the new formula could have been put into production and (2) the
formula Rich Products was using in 2010 was the same one it was
using at the time of Kelvin's injury. Again, trial in this case
did not start until 2014.
11
With respect to the second category of documents -- the
testing results from 2004 -- the plaintiffs contend that these
documents would have obviated the need for them to do their own
testing "and would have contravened Rich [Products'] claim that
[the] meatball had a reasonably safe texture." This is
speculation. In fact, the evidence established that most of the
testing was done for quality purposes, i.e., to assess whether
people liked the taste and texture of the meatball. Although
safety testing was also conducted, it was for the purpose of
checking for bacteria and foreign contaminants, not for choking
hazards.
Thus, even assuming spoliation, the judge was within his
discretion, given the minimal demonstrated prejudice to the
plaintiffs, to decline to give an adverse-inference instruction
but to allow the plaintiffs to make use of the fact that the
documents were lost. And their counsel made the most of the
opportunity, referring to the loss of relevant evidence in his
opening statement, questioning Rich Products' employees at
length about the missing documents, and arguing in closing that
the jury should find the employees not credible because they had
lost the documents.9 This was sufficient to remedy whatever
9 The plaintiffs claimed at oral argument that Rich
Products' counsel used the missing documents as a sword in his
own closing, when he stated, "where's the evidence" that there
was a change in the formula. But counsel followed that
12
unfairness to the plaintiffs that was caused by the missing
evidence. See Vigorito, 57 Mass. App. Ct. at 455 (while
properly denying spoliation motion, judge ameliorated harm by
"point[ing] out [movant] was free to make use in its own behalf
of any part of" fact that evidence was destroyed). Cf. Keene,
439 Mass. at 235 (it was within judge's discretion to impose
"the least severe sanction necessary to remedy the prejudice").
2. Summary judgment for city. We review the motion
judge's allowance of summary judgment for the city de novo,
viewing the evidence in the light most favorable to the
plaintiffs. See Boazova v. Safety Ins. Co., 462 Mass. 346, 350
(2012). To prevail on a claim of negligence, a plaintiff "must
establish that the defendant owed the plaintiff a legal duty,
and that a breach of that duty proximately caused injury to the
plaintiff." Petrell v. Shaw, 453 Mass. 377, 385 (2009).
Although the inquiry is ordinarily one of fact, a defendant can
prevail on summary judgment "by demonstrating that the
statement by citing the evidence that was actually presented at
trial -- specifically, the 2004 and 2010 USDA applications,
which list the same formulas. Also, the plaintiffs' assertion
of a change in formula derives from evidence that Rich Products
submitted a different application to the USDA in 2006; but the
plaintiffs had the 2006 records in their possession and
questioned the witnesses about them extensively. See note 8,
supra. We cannot glean from the plaintiffs' arguments what
precise prejudice they claim they suffered from the loss of the
2004 records.
13
[plaintiff] has no reasonable expectation of proving an
essential element of his case at trial." Id. at 381. Put
differently, "a judge may decide the issue as a matter of law
when no rational view of the evidence permits a finding of
negligence." Ibid. See Kourouvacilis v. General Motors Corp.,
410 Mass. 706, 716 (1991).
The plaintiffs contend that the city was negligent in two
ways: by serving Kelvin a food product that was unreasonably
dangerous for school-aged children and by failing to adequately
supervise the students in the cafeteria. We agree with the
motion judge that the plaintiffs had no reasonable expectation
of proving negligence on either of these grounds. They
presented no evidence that would allow a rational jury to find,
or even infer, that the city knew or had reason to know of the
alleged dangerousness of the meatball -- a USDA-approved product
that the city bought through the National School Lunch Program.10
Nor could a rational jury find that the city was negligent in
supervising the students. Although the plaintiffs claim that
school employees knew that the students "engaged in food eating
contests and regularly engaged in high risk behaviors," they
fail to identify what the employees could have done differently
10The plaintiffs also do not address the potential
preclusive effect of the jury's finding that the meatball was
not unreasonably dangerous.
14
to curb those behaviors so as to have prevented Kelvin's
injuries.11 See Glidden v. Maglio, 430 Mass. 694, 696 (2000)
(defendant entitled to summary judgment where "plaintiffs failed
to proffer any evidence . . . establish[ing] any causal link
between their injuries and the defendant's breach of any duty to
them").
To the extent the plaintiffs claim that the school
employees' use of back blows and their allegedly faulty
administration of the Heimlich maneuver were independent acts of
negligence, that claim was also properly dismissed on summary
judgment. Proof of medical causation "generally must be
established by expert testimony." Harlow v. Chin, 405 Mass.
697, 702 (1989). See Held v. Bail, 28 Mass. App. Ct. 919, 921
(1989). It is beyond the ken of an ordinary juror to know
whether the back blows or the administration of the Heimlich
maneuver might have worsened Kelvin's condition. See
11The plaintiffs mention in passing the cafeteria
supervisor's announcement that the children had four minutes
left to finish their lunch, which they say "encourag[ed] these
kids quickly to eat this already dangerous food." But the
announcement is not itself actionable negligence. It simply
implemented the school's decision to allot fifteen minutes for
lunch, and the plaintiffs concede that that decision falls under
the discretionary-function exemption to the Massachusetts Tort
Claims Act. See G. L. c. 258, § 10(b). The plaintiffs also
concede that the discretionary-function exemption bars any claim
that the school assigned an insufficient number of employees to
supervise the cafeteria or that the employees were inadequately
trained.
15
Commonwealth v. Hamel, 91 Mass. App. Ct. 349, 352 (2017),
quoting from Pitts v. Wingate at Brighton, Inc., 82 Mass. App.
Ct. 285, 289 (2012) (expert testimony required where
determination of causation required information outside "general
human knowledge and experience"). Thus, the plaintiffs had to
offer expert evidence to create a triable issue on their claim.
They did not, nor did they raise any argument under
Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), that additional
discovery was necessary to respond to the city's motion. See
Kourouvacilis, 410 Mass. at 716-717 (summary judgment proper
where plaintiff failed to present expert evidence in support of
her case); Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221,
227-228 (1999) (same).
In the end we agree with the motion judge's assessment that
no rational view of the evidence would permit a finding that the
school employees acted negligently in their response to this
tragic accident. They immediately identified that Kelvin was in
distress, took prompt actions to try to help him, and called 911
for medical assistance. On these undisputed facts, the motion
judge was correct to enter summary judgment for the city.12
Judgment affirmed.
12The parties debate at length whether the city is immune
from liability under the original cause exemption to the
Massachusetts Tort Claims Act. See G. L. c. 258, § 10(j).
Given our ruling, we need not resolve the issue.