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Cases#2 Product Liability 86

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Product Liability 86. Horan v. Windrift Hotel Resort, 2018 WL 1003370 (3rd Cir., 02/21/2018). Plaintiff ate three raw clams served to her at defendant's restaurant. Two days later she began feeling ill. She was diagnosed with Vibrio vulnificus (Vibrio) sepsis infection which resulted in an above-the-knee amputation of her left leg and several surgeries on her left arm. Soon after she ate the clams, a Board of Health inspector found numerous health violations at the eatery relating to handling of raw fish. Plaintiff sued the hotel and restaurant claiming violation of the New Jersey Products Liability Act. Defendant moved for summary judgment. The court held a Daubert hearing at which each side's expert testified concerning their knowledge of the risk to human health of raw fish. Based on that testimony and prior case law, the court concluded that Vibrio is a naturally occurring bacteria in raw clams that does not create a health risk to most healthy adults, and therefore does not render the clams per se defective. For plaintiff to survive the summary judgment motion, she would need to prove that the clams arrived at the hotel with non-infective dosage levels of Vibrio, and the hotel's foodhandling practices created a defect that proximately caused her illness. However, plaintiff's expert admitted that it is "impossible" to assess whether the clams contained non-infective levels of the bacteria at the time they were delivered to the hotel. Therefore, summary judgment was properly granted in favor of the hotel

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