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Click here for the full text of this decision FACTS:Liana Smith appeals a take-nothing summary judgment entered in favor of Landry’s Crab Shack Inc. d/b/a Joe’s Crab Shack on the grounds that: 1. there is legally sufficient evidence that Smith suffered food poisoning from food she ate at a Landry’s restaurant; and 2. her expert’s testimony should not have been stricken. Smith testified that: 1. the food she ate at the restaurant was the only food she had consumed within the 20 hours preceding the onset of her illness; and 2. the meal she had eaten prior to the one at the restaurant had also been eaten by her entire family without incident. Her medical expert witness, Dr. Al-Assi, testified that: 1. none of the circumstances of Smith’s illness or treatment was inconsistent with a diagnosis of gastroenteritis; 2. gastroenteritis can be caused by bacteria in food; 3. many foods can be a carrier for such bacteria; 4. different bacteria have different incubation periods before a person begins to experience symptoms; 5. starting to experience symptoms within five hours of a meal and getting sick enough to be admitted to a hospital within about 10 hours of a meal would, in reasonable medical probability, be “consistent with” food-borne gastroenteritis; 6. the “most common” time period in which symptoms of food-borne gastroenteritis “normally” manifest is within the first 24 hours and it can be as fast as a couple of hours; and 7. although it was possible that Smith had gastroenteritis from some other source than food poisoning, it was “more likely” that she had food poisoning considering “the clinical history and the set up.” Al-Assi did not express any ultimate opinion (in reasonable medical probability or otherwise) that Smith’s gastroenteritis was caused by food she ate at the restaurant. HOLDING:Affirmed. Smith provided evidence only that she had gastroenteritis that could have been caused by food and that the only food she had eaten before experiencing those symptoms and within the period in which food poisoning symptoms most commonly occur was the meal she ate at the restaurant. Without inferring: 1. that Smith’s gastroenteritis was caused by food; and either that 2. it occurred within the maximum (versus most common) incubation period for food-borne gastroenteritis; or 3. it was a type of food-borne gastroenteritis that occurs within the most common incubation period, none of which are supported by evidence in this case, it does not logically follow that her illness was caused by food she ate at the restaurant. Under these circumstances, the evidence does not raise a fact issue whether Smith’s illness was, in reasonable medical probability, caused by food she ate at the restaurant. OPINION:Edelman, J.; Edelman, Seymore and Guzman, JJ.

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