Fitzpatrick v. Wendy's Old Fashioned Hamburgers of N.Y., Inc.

96 Mass.App.Ct. 410

136 N.E.3d 355

Meaghan FITZPATRICK

v.WENDY'S OLD FASHIONED HAMBURGERS OF NEW YORK, INC., & Others.¹

No. 18-P-1125

Appeals Court of Massachusetts, Suffolk..

Argued March 13, 2019.

Decided November 7, 2019.

Matthew J. Fogelman for the plaintiff.

Christopher A. Duggan, Boston (Pauline A. Jauquet, Lincoln, also present) for Wendy's Old Fashioned Hamburgers of New York, Inc., & another.

Present: Wolohojian, Blake, & Shin, JJ.

WOLOHOJIAN, J.

In this appeal we conclude that it was an abuse of discretion to allow a new trial based on statements in plaintiff's counsel's closing argument that crossed the bounds of permissible advocacy. We reach this conclusion because, among other things, the judge did not apply the correct legal standard and, as a result, failed to conduct a survey of the whole case, as she was required to, to determine whether a miscarriage of justice would result absent a new trial. Instead, it appears the judge nullified the jury's verdict and allowed a new trial as a form of sanction for counsel's closing. This she could not do. A "new trial motion is not a mechanism for addressing individual errors at trial. It is an opportunity to allow the judge to take ‘a survey of the whole case’ to ensure that a ‘miscarriage of justice’ has not occurred." Wahlstrom v. JPA IV Mgt. Co., 95 Mass. App. Ct. 445, 447, 127 N.E.3d 274 (2019), quoting Evans v. Multicon Constr. Corp., 6 Mass. App. Ct. 291, 295, 375 N.E.2d 338 (1978). For this reason, we vacate the order allowing the defendants' motion for mistrial, and remand for further proceedings.

Background. On January 23, 2011, the plaintiff, a thirty-four year old woman with good teeth, paid $5.64 for a small plain hamburger with no toppings and French fries from a Wendy's restaurant in Medford and took them home to eat for dinner. On the third or fourth bite, she heard a loud crack and crunching, and felt a pain shoot up into her upper left gum. She spit out the half-eaten food and discovered that her mouth was bleeding and one of her upper left molars (tooth 14)² was split in two. The injury was caused by a piece of bone in the hamburger.³

The bone had split tooth 14 well below the gum line, and the dental nerve was sheared, bleeding, and exposed.⁴ The bone also caused minor damage to the opposing lower molar (tooth 19), which was easily repaired with a filling. But repairing tooth 14 was not a simple matter and required at least twenty-three trips to various dentists over the next two years. To begin with, the disengaged part of tooth 14 (which was moving loosely) had to be removed. In addition, the plaintiff had to undergo an immediate root canal by an endodontist, who subsequently had to perform a second root canal. The initial goal was to try to save the remaining portion of tooth 14 and to restore it with a cap. To accomplish this, the dentist, over several appointments, performed a gingivectomy ⁵ (necessary because of the depth of the break), implanted a titanium post in the tooth's canal, fitted a temporary crown, and then cemented in a permanent crown.

But the plaintiff's anatomy was not "ideal" for the crown and, as a result, the tooth required ongoing special cleaning. Within about a month, the plaintiff's gum was sore and throbbing and X-rays revealed bone loss caused by an inflammatory process most likely due to the fact that tooth 14 could not be cleaned efficiently. At this point, the plaintiff was prescribed a prescription-strength mouthwash and referred to a periodontist to see if tooth 14 could be saved.

The periodontist identified two possible treatment options. The first (which the periodontist did not favor) was to surgically "re-contour the gum and the bone around the crown to see if the final result would make [tooth 14] cleansable and sustainable." The second option was to extract tooth 14, and replace it with a dental implant. This was the periodontist's favored solution based on how deep the original fracture had extended under the gum. Unfortunately, however, the plaintiff did not have sufficient "sinus elevation" or quality of bone in which to anchor an implant. Thus, this option required sinus elevation surgery to push up the floor of the sinus, along with bone grafts to increase the span of bone to hold the implant. The bone grafts could be done using the patient's own bone (in which case additional surgery would be required to harvest bone from elsewhere in the patient's body), freeze-dried animal bone, or bone taken from a human cadaver. Once the graft surgeries healed and the grafts grew, the periodontist would insert a metal implant to which the dentist would then attach a new permanent crown.

The plaintiff opted for the recommended option using a cadaver bone to avoid the additional surgery that would be necessary to harvest her own bone for the graft. All told, the various surgeries, grafts, and other procedures were not completed until February 7, 2013, two years after the original injury. Along the way, the plaintiff suffered pain requiring strong medication (oxycodone ), bruising and black eyes as a result of the procedures, and mental distress. She was required to take antibiotics and steroids. As an ongoing matter into the indefinite future, because the implant is prone to infection, it requires special, continuing cleaning by the plaintiff.

The plaintiff sued Wendy's Old Fashioned Hamburgers of New York, Inc. (Wendy's), which operated the restaurant from which the plaintiff bought the hamburger, JBS Souderton, Inc. (JBS), which produced and supplied the hamburger according to Wendy's specifications, and Willow Run Foods, Inc., which distributed the hamburger to Wendy's. By the time of trial, only Wendy's and JBS remained in the case, and the only claims against them were for breach of the implied warranty of merchantability, G. L. c. 106, § 2-314, and violation of G. L. c. 93A.⁶

The breach of warranty claim went to trial in 2016, with the judge reserving the c. 93A claim for herself. We recite the trial proceedings in detail given that they must be considered in their entirety. During his opening statement, plaintiff's counsel began by stating that the case was about "safety rules that protect all of us" from dangerous food products "only if jurors like yourselves enforce those rules in Court. You decide what is safe in our community." He then identified the two defendants, noting that JBS is one of the leading meat processors in the world. Counsel proceeded to outline the multistep production process for hamburger meat, noting that bone can get through if it is smaller than the size of the final grind plate. He then stressed that, although JBS had X-ray technology available to it to examine the final grind for bone, it did not use that technology. Counsel outlined the facts we set out above concerning the plaintiff's injury and treatment, which he then followed by remarking on the fact that the plaintiff received no response from Wendy's when she called to report what had happened. He next described the defendants' policies of providing safe food to their customers, and stated that these "safety rules" are to apply to all consumers. He then focused on the question of a consumer's reasonable expectations, noting that consumers do not expect to find bone in their hamburger (unlike when one eats, for example, a chicken wing), and that hamburgers will not be inspected by the consumer before being eaten. Counsel concluded by giving some biographical information about his client, noting that she had no prior history of serious dental problems, and outlining the course of the medical procedures she underwent. No objection was lodged to any aspect of the opening.

Wendy's and JBS were represented by the same counsel, which obviously constrained any defense premised on one blaming the other. Defense counsel's opening began with the importance of the right to trial by jury. He then described Wendy's as having been founded in 1969 by Dave Thomas. He described JBS as "one of the leading meat processors in the whole world." Counsel described in detail the hamburger production process and the many steps that are taken to ensure that the meat is safe, biologically, chemically, and physically. He noted that, by the end of the process, the meat is produced to Wendy's specifications in a seventy-five/twenty-five meat/fat ratio, and put through a final grind plate of three thirty-seconds of an inch (3/32"). Counsel noted that the Wendy's grind specification was much smaller than that specified by the United States Food and Drug Administration (FDA) (one centimeter) as safe for human consumption, and also much smaller than the industry standard (one-eighth of an inch). Counsel pointed out that meat could not be ground any finer and still be made into hamburger. He acknowledged that pieces of gristle and bone might get through the final grind if they were less than 3/32", but "that is way past what is safe under our FDA regulations." He then described the many quality assurance measures in place at JBS and at Wendy's. Finally, defense counsel did not dispute that the plaintiff broke her tooth after biting into a Wendy's hamburger and stated, "[T]here's no doubt that there was a small, small tiny fragment of a bone" in the hamburger. But he stressed that the plaintiff's tooth 14 was compromised before the injury and raised a question about the filling material her dentist used in 2006 (several years earlier) to treat it. Counsel ended on the theme that there was nothing more the defendants could do and still sell hamburgers in the United States, and that the defendants had met the reasonable expectations of their customers.

The trial was not long; testimony required only two one-half days of trial, and all the trial exhibits came in by agreement. The plaintiff first called Wendy's district manager, who testified that Wendy's strove to serve safe food and not to put its customers at risk. He confirmed that "food safety is the...