Was the hamburger tainted with E. coli?
A Logan man and his wife say it was and made him severely illafter just a couple of bites.
But if it was a bad hamburger, could the doctor who examined theman and a food safety expert say that in court?
A Kanawha County judge said no.
The state Supreme Court said yes and has resuscitated what was adead lawsuit.
Clinton San Francisco and his wife, Jessie, sued Wendy's in 2004over what they said was a bad hamburger bought in Charleston in2002.
Kanawha Circuit Judge Paul Zakaib last year said the doctor whotreated Clinton and an expert in food safety from Michigan StateUniversity were not qualified to serve as experts in the SanFrancisco case under state trial rules.
State Supreme Court justices, in a 4-1 decision handed downrecently, said a jury can hear the expert testimony and decidewhether or not it's credible.
Justice Brent Benjamin dissented and is expected to file aseparate opinion.
Court documents tell the back story.
Clinton and Jessie had gone to visit their daughter inBarboursville in 2002.
The couple accompanied their daughter to a hair appointment inCharleston. After the appointment, the family pulled into thePatrick Street Wendy's drive-thru to grab a bite to eat.
On the way back to Barboursville, Clinton started eating hissingle hamburger with mustard, onions, pickles and tomato.
He said the burger was raw inside. He said it "tasted funny" andhad a weird texture.
About a quarter of the way through the hamburger, Clinton quiteating and tossed it, court records say.
Clinton says shortly after this, his stomach got queasy and hesweated profusely. Two hours later, he was vomiting and haddiarrhea.
After two days, Clinton was still sick. He went to Logan GeneralHospital, where he vomited nearly a half-gallon of stomach contents.He stayed in the hospital for the next 10 days.
In their lawsuit, the couple brought out Dr. Peter Gregor, whoattended to Clinton in the hospital.
Gregor had this to say in a deposition: "If you ask me, do Ithink a hamburger at a restaurant with diarrhea, vomiting and fluidloss shortly thereafter was the cause of the hospitalization, Iwould say yes ... It was the hamburger."
Ewen Todd, the food safety expert, testified that from theevidence he, too, believed it was the hamburger.
Gregor said he considered many possible causes for what ailedClinton. A bad hamburger had the "highest probability of a series ofpossibilities" as the culprit, he said.
Todd said Clinton's symptoms were consistent with toxins producedby Escherichia coli bacteria.
Usually, E. coli has to be in a person's body for up to four daysto produce the toxins, Todd said. But at least one study found thetoxins already could have been present in the Wendy's ground beefbefore Clinton ate the hamburger if the restaurant didn't practiceproper food keeping.
Todd supported his opinion by citing five violations at theWendy's leveled by the Kanawha County Health Department for"temperature abnormalities." Todd said studies have shown toxins candevelop in E. coli-tainted meat after four days of being kept at atemperature of 98.6 degrees Fahrenheit.
Lawyers for Wendy's said there were more likely causes forClinton's sickness and moved to exclude these experts from the case.
The lawyers pointed out that in the week before he ate thehamburger, Clinton ate ham, home-cooked chicken strips, homemadebeef stew, pork chops, potato salad and other foods. Clinton alsovisited his grandson in the hospital just days before he got sick.
If it was food poisoning, the widely accepted notion of E. coli'sgestation period would point to one of those other foods as thelikely cause of the illness, Wendy's lawyers argued.
Or, the lawyers said, Clinton could have picked up a bacteria orvirus during his visit to the hospital to see his grandson.
Wendy's lawyers argued that no one else who ate at the restaurantthat day reported getting sick. The restaurant further added thatJessie San Francisco also ate a hamburger that day and didn't getsick.
Judge Zakaib sided with Wendy's on March 14, 2006. In his order,Zakaib said neither Gregor nor Todd could be considered expertsunder state trial rules.
Zakaib ruled that Gregor was a cardiologist, not a specialist ingastroenterology or infectious disease. Todd's perspective alsodidn't pass muster, Zakaib ruled.
Without the expert witnesses, the San Franciscos had no case.
But state Supreme Court justices said the opinions of bothwitnesses could be considered reliable and should have been allowed.The validity of the testimony would be for a jury to decide.
Chief Justice Robin Davis said in a separately written opinionthat she hoped the state's lower courts would take heed of the SanFrancisco decision.
"All too often this court is called upon to decide a case inwhich the trial court has been reluctant to permit an expert witnessto testify despite the fact that the witness's credentials qualifyhim/her as an expert and the matters about which the expert iscalled to testify are both relevant and reliable to the case athand," wrote Davis.
"Rather than freezing like a proverbial deer in the headlights,however, trial courts should be mindful that scientific evidencepresented through expert witnesses is presumptively admissible."
Contact writer Justin D. Anderson at justin @dailymail.com or 348-4843
Supreme Court reinstates lawsuit over hamburger: ; Justices allow testimony by experts that was thrown out in Kanawha trial
Was the hamburger tainted with E. coli?
A Logan man and his wife say it was and made him severely illafter just a couple of bites.
But if it was a bad hamburger, could the doctor who examined theman and a food safety expert say that in court?
A Kanawha County judge said no.
The state Supreme Court said yes and has resuscitated what was adead lawsuit.
Clinton San Francisco and his wife, Jessie, sued Wendy's in 2004over what they said was a bad hamburger bought in Charleston in2002.
Kanawha Circuit Judge Paul Zakaib last year said the doctor whotreated Clinton and an expert in food safety from Michigan StateUniversity were not qualified to serve as experts in the SanFrancisco case under state trial rules.
State Supreme Court justices, in a 4-1 decision handed downrecently, said a jury can hear the expert testimony and decidewhether or not it's credible.
Justice Brent Benjamin dissented and is expected to file aseparate opinion.
Court documents tell the back story.
Clinton and Jessie had gone to visit their daughter inBarboursville in 2002.
The couple accompanied their daughter to a hair appointment inCharleston. After the appointment, the family pulled into thePatrick Street Wendy's drive-thru to grab a bite to eat.
On the way back to Barboursville, Clinton started eating hissingle hamburger with mustard, onions, pickles and tomato.
He said the burger was raw inside. He said it "tasted funny" andhad a weird texture.
About a quarter of the way through the hamburger, Clinton quiteating and tossed it, court records say.
Clinton says shortly after this, his stomach got queasy and hesweated profusely. Two hours later, he was vomiting and haddiarrhea.
After two days, Clinton was still sick. He went to Logan GeneralHospital, where he vomited nearly a half-gallon of stomach contents.He stayed in the hospital for the next 10 days.
In their lawsuit, the couple brought out Dr. Peter Gregor, whoattended to Clinton in the hospital.
Gregor had this to say in a deposition: "If you ask me, do Ithink a hamburger at a restaurant with diarrhea, vomiting and fluidloss shortly thereafter was the cause of the hospitalization, Iwould say yes ... It was the hamburger."
Ewen Todd, the food safety expert, testified that from theevidence he, too, believed it was the hamburger.
Gregor said he considered many possible causes for what ailedClinton. A bad hamburger had the "highest probability of a series ofpossibilities" as the culprit, he said.
Todd said Clinton's symptoms were consistent with toxins producedby Escherichia coli bacteria.
Usually, E. coli has to be in a person's body for up to four daysto produce the toxins, Todd said. But at least one study found thetoxins already could have been present in the Wendy's ground beefbefore Clinton ate the hamburger if the restaurant didn't practiceproper food keeping.
Todd supported his opinion by citing five violations at theWendy's leveled by the Kanawha County Health Department for"temperature abnormalities." Todd said studies have shown toxins candevelop in E. coli-tainted meat after four days of being kept at atemperature of 98.6 degrees Fahrenheit.
Lawyers for Wendy's said there were more likely causes forClinton's sickness and moved to exclude these experts from the case.
The lawyers pointed out that in the week before he ate thehamburger, Clinton ate ham, home-cooked chicken strips, homemadebeef stew, pork chops, potato salad and other foods. Clinton alsovisited his grandson in the hospital just days before he got sick.
If it was food poisoning, the widely accepted notion of E. coli'sgestation period would point to one of those other foods as thelikely cause of the illness, Wendy's lawyers argued.
Or, the lawyers said, Clinton could have picked up a bacteria orvirus during his visit to the hospital to see his grandson.
Wendy's lawyers argued that no one else who ate at the restaurantthat day reported getting sick. The restaurant further added thatJessie San Francisco also ate a hamburger that day and didn't getsick.
Judge Zakaib sided with Wendy's on March 14, 2006. In his order,Zakaib said neither Gregor nor Todd could be considered expertsunder state trial rules.
Zakaib ruled that Gregor was a cardiologist, not a specialist ingastroenterology or infectious disease. Todd's perspective alsodidn't pass muster, Zakaib ruled.
Without the expert witnesses, the San Franciscos had no case.
But state Supreme Court justices said the opinions of bothwitnesses could be considered reliable and should have been allowed.The validity of the testimony would be for a jury to decide.
Chief Justice Robin Davis said in a separately written opinionthat she hoped the state's lower courts would take heed of the SanFrancisco decision.
"All too often this court is called upon to decide a case inwhich the trial court has been reluctant to permit an expert witnessto testify despite the fact that the witness's credentials qualifyhim/her as an expert and the matters about which the expert iscalled to testify are both relevant and reliable to the case athand," wrote Davis.
"Rather than freezing like a proverbial deer in the headlights,however, trial courts should be mindful that scientific evidencepresented through expert witnesses is presumptively admissible."
Contact writer Justin D. Anderson at justin @dailymail.com or 348-4843
