by Mike Donoghue, Vermont News First, Vermont Business Magazine A Newbury man, who claimed he got food poisoning and sustained kidney damage from a contaminated pre-packaged ham and Swiss cheese sandwich purchased at a Shaw’s supermarket has lost his product liability lawsuit in U.S. District Court in Burlington.
A federal jury in Burlington rejected the claim by Michael Emerson against the Shaw’s Supermarket in Woodsville, N.H. and Fresh Ideation Food Group LLC, doing business as Fresh Creative Cuisine, which prepared the sandwich at its Baltimore, Maryland facility in January 2023.
The 8-member civil jury said on its verdict form last week that Emerson failed to show, by a preponderance of the evidence, that the sandwich was contaminated with listeria at the time of sale, the sandwich was "unreasonably dangerous" at the time of sale or that the listeria contamination caused harm to plaintiff.
Defense lawyer Thomas J. Fay, in his closing argument to the jury, maintained there was reasonable doubt that the ready-to-eat sandwich had caused any of the claims by Emerson Fay told the jury that it was odd that Emerson was the only known customer to get sick when the ham and Swiss cheese sandwiches were distributed from South Carolina to Maine.
Shaw’s is a well-known supermarket chain across New England. After divesting its stores in Connecticut, now operates 129 supermarkets in five of the six New England states, including 19 in Vermont and 25 in New Hampshire, according to the company website.
Fay maintained a defendant’s verdict was warranted. Fay insisted the jurors would have to do considerable speculation or conjecture to reach the conclusion that the defendants were responsible.
Emerson filed suit claiming that he had bought the Dietz & Watson sandwich on Jan. 25, 2023. Two days later he underwent a colonoscopy and had the sandwich for dinner that night. Emerson maintained he later had diarrhea, vomiting, fever, rash, headaches and muscle/body aches, among other things.
He went to Dartmouth Hitchcock Medical Center and was eventually diagnosed with additional kidney issues, Emerson’s lawyer, Michael Hanley told the jury. Emerson maintained he provided a stool sample at the hospital, but court records indicate the staff at Dartmouth Hitchcock Medical Center subsequently lost it.
Emerson, who was 65 at the time, had significant pre-existing health problems, including kidney disease and diabetes and a weakened immune system, according to the lawsuit.
Fresh Creative was notified on Feb. 3, 2023, about the presence of listeria in their Maryland facility, the jury was told. The samples showed listeria on the floor, five drains and a wrapper, court papers noted.
Shaw’s subsequently notified Emerson by email on Feb. 4 about an “Important Recall Message” being made by Fresh Creative for the ham and cheese sandwich because the supermarket’s records showed he had bought one. The recall covered sandwiches made between Jan. 24 and Jan. 30, 2023.
The U.S. Food & Drug Administration’s website outlined the reason for the recall. The concern was for listeria monocytogenes, an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people and others with weakened immune systems, the lawsuit said.
Hanley, co-counsel for Emerson, told the jurors that they had the one chance to make it right. He said Emerson could not legally return to court should he be required to have a kidney replaced or to undergo long-term dialysis for the kidney damage.
Hanley said his client was not asking for a specific amount in damages but would leave it up to the jury.
The trial included each side presenting a doctor to support their respective positions. Store Manager George Murphy also testified for the defense.
The six men and two women on the jury deliberated less than two hours before returning the verdict at the end of the third day of the trial.
Senior Federal Judge William K. Sessions III gave 30 days to file any post-trial motions. Paul Perkins, co-counsel for Emerson, told Vermont News First this week that the plaintiff does not expect to file any motions.
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