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Maine SC remands case over company's boneless turkey

By Jessica M. Karmasek | Jul 10, 2012


AUGUSTA, Maine (Legal Newsline) - The Maine Supreme Court, in a ruling last week, remanded a lawsuit filed against a company for its not-so-boneless turkey product.

In its July 3 opinion, the Court sided with plaintiff Stanley Pinkham's estate, agreeing that a lower court's summary judgment in favor of Cargill Inc. was not proper given the facts presented in the case, and vacated the judgment.

In August 2004, Pinkham, who worked as a line cook at Dysart's Truck Stop and Restaurant in Bangor, ate a hot turkey sandwich during his break.

Cargill manufactured the boneless turkey product, in which the kitchen staff at Dysart's would occasionally find pieces of bone.

Pinkham, in the middle of or soon after eating his sandwich, experienced severe and sudden pain in his upper abdominal area. At first, he thought he might be having a heart attack.

After being taken by ambulance to Eastern Maine Medical Center, Dr. Donald M. Clough initially evaluated Pinkham and determined he most likely had an esophageal tear or perforation.

Unable to locate the injury in a laparotomy procedure, Clough called in Dr. Scott D. Stern, a specialist in gastroenterology, to perform an upper endoscopy.

Stern discovered a small perforation in Pinkham's esophagus as well as a small food bolus, or a small mass of food, containing fragments of bony or cartilaginous material.

Although the doctor removed the food substance from the area of the esophageal perforation, he did not remove any food product or other substance from Pinkham's body.

Clough then called in another doctor, Felix Hernandez, to perform thoracic surgery to repair the esophageal perforation.

About two and a half years later, Pinkham died.

In May 2009, Pinkham's estate filed a complaint against Cargill and Poultry Products of Maine Inc. The estate requested relief for Pinkham's esophageal injury, but did not assert a wrongful death claim.

In October 2010, Cargill filed a motion for summary judgment and a statement of material facts.

Pinkham's estate opposed the motion for summary judgment and filed an opposing statement of material facts, to which Cargill filed a response.

As part of its opposition to Cargill's motion, the estate relied on three pieces of evidence: an affidavit by Cheryl Pinkham, Pinkham's former spouse; an affidavit by Tina O'Donnell, Pinkham's daughter; and a transcribed copy of a recorded conversation between Pinkham and an insurance adjuster.

Both of the affidavits asserted that Hernandez told the affiants immediately after the surgery that a bone or "fragments" caused Pinkham's esophageal injury. The superior court excluded both as inadmissible hearsay.

The estate also offered Pinkham's transcribed conversation with an insurance adjuster to establish prima facie evidence that Pinkham was injured when he swallowed a bite of the turkey sandwich. The court also excluded this statement as inadmissible hearsay.

In granting Cargill's motion for summary judgment, the lower court noted that Maine has not yet established which test to use when evaluating a strict liability claim for an allegedly defective food product pursuant to the state's strict liability statute.

More specifically, the court concluded that, because bone is naturally found in turkey, and because the average consumer would reasonably expect to find bone fragments up to two millimeters in size in processed "boneless" turkey product, the contents of the food bolus discovered in Pinkham's esophagus did not demonstrate that the product was defective as a matter of law.

It also determined that, because the estate failed to show that the injury was not caused solely by something other than the defective food product, the estate could not benefit from an inference that Cargill's processed turkey product was defective.

The estate appealed.

The state's high court, in its 16-page ruling, said the estate presented evidence that creates a "genuine issue of material fact" as to whether the turkey product caused Pinkham's injury.

The Court pointed to specific testimony.

"Stern testified that he believed that the injury was a 'perforation secondary to a foreign body.' He opined that even if Pinkham had a pre-existing condition making him more susceptible to an esophageal injury, a second factor -- such as a foreign body, retching, or vomiting -- would still most likely need to be present to cause Pinkham's injury," Justice Joseph Jabar wrote for the Court.

"The record demonstrates that the 'foreign body' was either a small piece of bone or cartilage, or a larger piece of bone."

He continued, "There is direct evidence of the presence of the smaller pieces of bone or cartilage: Stern actually saw them. There is no direct evidence of a larger piece of bone, but the summary judgment record does contain indirect evidence that a larger piece of bone could have been present in the turkey product Pinkham consumed, but may have passed, undetected, from Pinkham's throat."

The indirect evidence, the Court explained, is found in the deposition of a Dysart's employee, who testified that larger pieces of bone had regularly been discovered in Cargill's "boneless" turkey product in the past, and in the expert deposition testimony of Dr. John F. Erkkinen, who acknowledged that a larger bone piece could have passed through Pinkham's esophagus and into his stomach.

"Whether a consumer would reasonably expect to find a particular item in a food product is normally a question of fact that is left to a jury," Jabar wrote. "The superior court noted this, but nonetheless decided that a food bolus containing one-to-two-millimeter bone fragments is not defective as a matter of law.

"In making this determination, the court erred. The question of whether a consumer would reasonably expect to find a turkey bone or a bone fragment large and/or sharp enough to cause an esophageal perforation in a 'boneless' turkey product is one best left to the fact-finder."

From Legal Newsline: Reach Jessica Karmasek by email at

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