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Yuck! We’ve all heard horror stories about people finding hair, rodents or other foreign objects in their food. Often, these situations become suits. While these suits have a high gross-out factor, plaintiffs usually have little or no evidence that the food seller’s actions caused illness or other damages. Here is an example. Joe and Betty Customer go to the movies. Joe is halfway through his bucket of popcorn when he bites into something that tastes foul. He spits the substance into his hand and shows it to his wife. What does she see? A half-chewed cockroach. Rightfully outraged, the Customers ask for the concessions manager. The manager apologizes and gives them a free popcorn, soda and tickets to another movie. One year later, Joe is diagnosed with an illness. Joe visits a lawyer and tells her about that day at the movies. The Customers assume that the movie theater is the likely cause of Joe’s illness, start planning their retirements in the Caribbean and file suit. This scenario, while it seems highly improbable, is becoming more common. What should the movie theater do? The theater does not want bad publicity, but it’s unlikely that its conduct caused Joe’s illness. Here are five tips for defending claims where there is a high gross-out factor and little or no evidence of causation. Tip No. 1: Recognize the public relations aspect of the case. When the company’s name is at stake, PR is not a bad word. Get out in front of the problem. Dispel any myths and untruths and inform the public about what the movie theater did to prevent the situation and what it continues to do to avoid future problems. If necessary, persuade the client to hire a public relations firm to assist. Because the greatest strength in Joe’s case is probably the gross-out factor, attacking the public relations portion of the case will help take the wind out of his sails. While the PR aspect of the case will be ongoing, another important task is to gather the facts as soon as possible. Tip No. 2: Put on your detective’s hat and find out what your client was doing. You need to know all the facts from your client’s perspective. Based on Joe’s accusations, you need to find out how the theater purchases, prepares, stores and serves the popcorn. You also need to know what policies are in place to ensure the popcorn is safe for your client’s patrons. Learning more about your client’s routine behavior will enhance your ability to extract valuable facts to help your defense. After gathering facts about your client’s actions, you need to change gears and examine the situation from a medical perspective. Tip No. 3: Put on a stethoscope and discover the medical possibilities of the plaintiff’s claim. To shed some much-needed light on the case, you need to have a medical expert analyze Joe’s claims and his medical records. If the expert concludes that Joe’s claim is not medically possible, then it is certainly not legally probable. Under these circumstances, the case likely can be disposed of via summary judgment. What happens, however, when it is medically possible that Joe became sick from biting into the cockroach? You need to do some math and find out if Joe’s claims add up. DO THE MATH Tip No. 4: Be a mathematician and solve the problem before trial. Most of us dread math. That’s why we went to law school, right? However, if you do some math in this case, you still might be able to get a summary judgment. Joe thinks that his facts plus a medical possibility equals an issue of fact for the jury. But is Joe’s math right? Can he avoid summary judgment? No. Because you have read the Texas Supreme Court opinion in Merrell Dow Pharmaceuticals Inc. v. Havner and the 4th Court of Appeals opinion in Martinez v. City of San Antonio, you notice that Joe has left out one key part of the equation, and here it is: causation. Unless Joe has direct or circumstantial evidence causally linking his illness to the movie theater’s conduct, his case will not withstand the rigors of a no-evidence motion for summary judgment. To do so, Joe has a heavy burden. He will need expert testimony that rules out all other possible sources of his illness and states that his illness was caused by biting into the cockroach. If Joe meets this heavy burden and avoids summary judgment, your case is not over; you just need to be prepared to go to trial. Tip No. 5: Be an advocate, and clearly tell your story to the jury. While you have changed many hats during this process, you have consistently maintained your posture as your client’s lawyer. Now is no time to quit. Because Joe has avoided summary judgment and thinks the gross-out factor puts his case in the seven-figure jury verdict range, it is more important than ever to make sure your ducks are in a row. Use your skills to pick a jury that will be fair. Once in front of the jury, acknowledge the gross-out factor, but explain the importance of causation. Because the medical and legal concepts are somewhat confusing, be sure to simplify and clearly illustrate the problems with the plaintiff’s causation evidence. The bottom line is this: No food service establishment wants its patrons to find undesirable substances in their food. Prevention is always the best medicine. If, however, a client has done all it could and still finds itself in this situation, hopefully these five tips will assist you in better aiding your client before and during trial. Christopher L. Kurzner is a partner in Dallas-based Godwin Gruber (www.goodwingruber.com). His litigation practice includes — in addition to liability defense of food service establishments — general, commercial and employment litigation. Richard L. Hathaway is an associate with the firm. His practice includes liability defense of food service establishments, general commercial litigation and appellate practice. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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