Wells v. Fresh Foods of Wash.

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ESTELLE WELLS, Executrix of the Estate of Larry Wells, et al., Plaintiffs, v. FRESH FOODS OF WASHINGTON, LLC, et al., Defendants.

Civil tion No. 5:21-269-DCR

United States District Court, E.D. Kentucky, Central Division, Lexington

November 29, 2022

MEMORANDUM OPINION AND ORDER

DANNY C. REEVES, CHIEF JUDGE UNITED STATES DISTRICT COURT

This matter is pending for consideration of Defendants Fresh Foods of Washington, LLC's and Sam's West, Inc.'s motions for judgment on the pleadings and Plaintiff Estelle Wells' motion to amend her Complaint. Because the plaintiff has shown good cause for amending the Complaint her motion will be granted. The defendants' motions for judgment on the pleadings will be denied, as moot.

I. Background

Plaintiff Estelle Wells (“plaintiff” or “Wells”) is the widow of Larry Wells (“Mr Wells”). Mr. Wells purchased a two-container package of Member's Mark brand clam chowder at Sam's West, Inc. (“Sam's West”), doing business as Sam's Club, in Lexington, Kentucky on January 19, 2021. The product was manufactured by Defendant Fresh Foods of Washington, LLC (“Fresh Foods”). Mr. Wells consumed the second container of soup on January 30, 2021, and became ill the following day. He went to the University of Kentucky Chandler Medical Center, where his condition rapidly deteriorated.

Mr. Wells' health continued to worsen and by February 2, 2021, a feeding tube was inserted. He was no longer able to use hand gestures or move his lower extremities. Given these symptoms and reported food history, doctors began to suspect botulism poisoning. Serum collected from Mr. Wells on February 3 was confirmed positive for botulinum toxin type A. In conjunction with the CDC, hospital staff administered botulism anti-toxin to Mr. Wells on February 4.

The Lexington-Fayette County Health Department (“LFCHD”) interviewed the plaintiff about Mr. Wells' symptoms and the food he consumed two days before his onset of symptoms. The plaintiff retrieved the soup container from the trash and gave it to LFCHD, which sent it to the Division of Laboratory Services (“DLS”) for testing on February 4, 2021. On February 9, DLS confirmed the presence of C. botulinum toxin type A in the leftover clam chowder collected from the Wells' home.

Mr. Wells' condition continued to deteriorate and he passed away on March 7, 2021. The plaintiff filed this action in her individual capacity and as executrix of Mr. Wells' estate on October 22, 2021, alleging that the defendants were negligent in manufacturing, distributing, marketing, and selling the clam chowder that Mr. Wells consumed (“Count II”). Wells also alleged a strict liability claim against Fresh Foods, asserting that the product was defective and unreasonably dangerous (“Count I”).

The defendants filed individual motions for judgment on the pleadings on September 20, 2022, arguing that the negligence claims should be dismissed. [Record Nos. 40, 41] Before briefing of those motions was complete, Wells filed a motion to amend the Complaint, which addressed several of the alleged deficiencies identified in the defendants' motions. The defendants maintain that the motion to amend should be denied and that their motions for judgment on the pleadings should be granted.

II. Standards of Review

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that, when a party seeks leave of court to file an amended pleading, “[t]he court should freely give leave when justice so requires.” This rule “reinforce[s] the principle that cases should be tried on their merits rather than the technicalities of pleadings.” Inge v. Rock Fin. Corp., 388 F.3d 930, 937 (6th Cir. 2004) (internal quotation marks omitted). Accordingly, the court has broad discretion in considering whether to grant leave to amend. The court may consider factors such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962); Ousley v. CG Consulting, LLC, 339 F.R.D. 455, 459 (S.D. Ohio 2021)).

Because Wells moved to amend the Complaint after the Court's April 15, 2022 deadline, she “must meet the higher threshold for modifying a scheduling order found in Rule 16(b).” Shane v. Bunzl Distrib. USA, Inc., 275 Fed.Appx. 535, 536 (6th Cir. 2008); Fed.R.Civ.P. 16(b)(4). This means that the plaintiff must “show good cause under Rule 16(b) for the failure to seek leave to amend prior to the expiration of the deadline before [the Court] will consider whether the amendment is proper under Rule 15(a).” Hill v. Banks, 85 Fed.Appx. 432, 433 (6th Cir. 2003). The touchstone of this inquiry is whether the moving party acted diligently in attempting to meet the deadline set forth in the scheduling order. Permasteelisa CS Corp. v. Airolite Co., LLC, 2007 WL 1683668, at *2 (S.D. Ohio June 8, 2007); Synthes USA Sales, Inc. v. Taylor, 2012 WL 928190, at *2 (M.D. Tenn. Mar. 19, 2012) (“Diligently seeking to rectify pleading deficiencies-‘as opposed to an effort to add new claims or parties'-even after a deadline has passed can be the basis for allowing amendment of a scheduling order.”).

The standard for ruling on motions to dismiss under Rule 12(b)(6) applies to the defendants' motions for judgment on the pleadings under Rule 12(c). See Moderwell v. Cuyahoga Cnty., Ohio, 997 F.3d 653, 659 (6th Cir. 2021). All well-pleaded allegations of the party opposing the motion are taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment. Id. “A Rule 12(c) motion ‘is granted when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.” Id. (citations omitted).

III. Discussion

Wells seeks to amend four substantive portions of her Complaint. First, she seeks to add new paragraphs 40 through 47 which describe Defendant Fresh Foods' method for producing the clam chowder at issue. The defendants argue that this amendment should not be allowed, as the proposed allegations are materially the same as those in the original Complaint and are not based on new information uncovered in the discovery process. However, Wells maintains that the allegations are based on discovery received within the last three months, including depositions and documents produced by Fresh Foods.^[1]She claims that, through this discovery material, she gained information concerning Fresh Foods'

appreciation of the risk of botulism poisoning associated with the subject clam chowder product, (2) Fresh Foods' production process for the subject product, including its lone control of continuous refrigeration (including by distributors and consumers) as protection against the development of botulism toxins, (3) actions taken, or not taken, to understand the realities and likelihood of consumer handling practices or habits for similar products, and (4) actions taken, or not taken, to ensure that the subject product was formulated in a manner that reduced the risks associated with the subject product as much as possible.

Contrary to the defendants' assertions, Wells maintains that she had no information regarding these topics prior to receipt of this discovery. There is no evidence of undue delay or bad faith on the plaintiff's part in seeking to make the amendments. Further, this is her first motion to amend the Complaint. Additionally, the defendants do not report that they would be prejudiced if the amendments are permitted, let alone explain what type of prejudice would likely occur.

Next, Wells seeks to amend paragraphs 48-55 regarding Sam's West's sale of the clam chowder to Mr. Wells. Specifically, she seeks to allege:

48. Defendant Sam's West, Inc. is a subsidiary of Walmart, Inc., and is a multibillion-dollar food retail company.

49. As a food retail giant, Defendant Sam's West, Inc., was aware of the dangers associated with reduced oxygen packaged food products, such as the subject clam chowder, including the potential for Clostridium botulinum Type A toxin to proliferate in such products if not kept under constant refrigeration.

50. Defendant Sam's West, Inc., knew that Defendant Fresh Foods was using the reduced oxygen packaging method to produce Maker's Mark brand clam chowder as an exclusive recipe for Defendant Sam's West, Inc.

51. Defendant Sam's West, Inc., knew the extent of any and all labels present on its Maker's Mark brand clam chowder product sold in its stores in January 2021, and specifically on the subject product.

52. As a food retail giant, Sam's West, Inc., was aware of the potential for the subject product to be improperly stored at some point after its manufacture and before its consumption by Mr. Wells.

53. As a food retail giant and seller of reduced oxygen packaged products, including the subject clam chowder product, Defendant Sam's West, Inc., knew or should have known about the multiple guidance documents the FDA has issued over the years to ensure consumers guidance documents the FDA has issued over the years to ensure consumers are adequately warned about the dangers of failing to refrigerate such products, including the danger posed by Clostridium botulinum specifically.

54. As a food retail giant, Sam's West, Inc., knew that the subject product's labeling did not warn consumers of the dangers posed by Clostridium botulinum.

55. As a food retail giant, Sam's West, Inc., knew that the subject product's preparation instructions were insufficient to guarantee the elimination of any Clostridium botulinum Type A toxin that may have formed in the product before consumption.

These proposed amendments appear to...