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16-P-504 Appeals Court

KELVIN SANTIAGO & others1 vs. RICH 

PRODUCTS CORPORATION & others.2

No. 16-P-504.

Middlesex. September 8, 2017. - December 28, 2017.

Present: Milkey, Hanlon, & Shin, JJ.

Negligence, Spoliation of evidence, School. Food. School and 

School Committee, Liability for tort. Practice, Civil, 

Instructions to jury, Summary judgment.

Civil action commenced in the Superior Court Department on 

August 21, 2006.

A motion for summary judgment was heard by Garry V. Inge, 

J.; the case was tried before Bruce R. Henry, J., and the entry 

of judgment was ordered by him.

Marc Diller (Jonathon D. Friedmann also present) for the 

plaintiffs.

Myles W. McDonough for Rich Products Corporation & others.

 

1 Julia Rivera and Juan Santiago, individually and as next 

friends of Kelvin Santiago.

2 Rich-Seapak Corporation, Casa Di Bertacchi Corporation, 

and the city of Lowell.
2

Hannah B. Pappenheim, Assistant City Solicitor (Elliott 

Veloso, Assistant City Solicitor, also present) for city of 

Lowell.

SHIN, J. Kelvin Santiago (Kelvin) suffered traumatic brain 

damage after choking on meatballs served in the cafeteria of a 

city of Lowell (city) public school. He and his parents filed 

suit against the city and Rich Products,3 the company that 

produced and sold the meatballs, asserting negligence and breach 

of the implied warranty of merchantability, among other claims. 

A judge allowed the city's motion for summary judgment, and, 

after seventeen days of trial, a jury returned a verdict in Rich 

Products' favor.4 On appeal the plaintiffs claim error in the 

trial judge's denial of their request for an adverse-inference 

instruction against Rich Products for alleged spoliation of 

documentary evidence and in the motion judge's allowance of 

summary judgment for the city. We conclude that the trial judge 

did not abuse his discretion in declining to give a spoliation 

instruction because the plaintiffs failed to establish the 

 

3 The three corporate defendants are affiliated entities.

We will refer to them collectively as Rich Products.

4 The jury found that Rich Products was negligent but that 

the negligence was not a substantial contributing factor to the 

plaintiffs' injuries. They further found that Rich Products did 

not breach the implied warranty of merchantability by selling 

meatballs that were unreasonably dangerous. Although the 

plaintiffs argued below that these verdicts are inconsistent, 

they do not renew that argument on appeal.
3

necessary factual predicate that Rich Products lost or destroyed 

the missing evidence when it knew or should have known of a 

potential lawsuit. We further conclude that the motion judge 

correctly ordered the entry of summary judgment for the city

because no rational jury could have found that its employees 

acted negligently. For these reasons we affirm the judgment.

Background. 1. The choking incident. The basic facts 

regarding what occurred during the incident are not in dispute.

In 2004 Rich Products began producing meatballs to sell to 

schools through the Federal government's National School Lunch 

Program. The meatballs contained a binding agent called Profam 

974, which is a soy protein isolate. The use of Profam 974 

enabled Rich Products to satisfy the United States Department of 

Agriculture (USDA) requirement that each school lunch contain 

two ounces of protein per student.

At 11:00 A.M. on March 15, 2006, Kelvin, then a first-grade 

student, went to the school cafeteria for lunch, which that day 

was spaghetti and four meatballs produced and sold by Rich 

Products. At around 11:11 A.M., a cafeteria supervisor 

announced that the children had four minutes to finish eating 

lunch. Soon thereafter, Kelvin began choking. 

Various school personnel present in the cafeteria tried to 

dislodge the obstruction in his airway using back blows and the 

Heimlich maneuver. Two school nurses quickly arrived and 
4

continued with the Heimlich maneuver, followed by chest 

compressions and cardiopulmonary resuscitation. At some point 

an employee called 911. Paramedics were dispatched at 11:15 

A.M. and arrived at the school at 11:19 A.M. When they arrived, 

Kelvin was neither conscious nor breathing and had no pulse. 

Using forceps, a paramedic extracted several large pieces of 

meatball out of Kelvin's airway. By that time, however, Kelvin 

had been deprived of oxygen for too long, and he suffered 

catastrophic brain damage. 

Immediately after the incident, the school's custodian was 

directed to clean up the cafeteria. While doing so, he 

discarded the pieces of meatball that had been removed from 

Kelvin's airway. The record reflects that the remaining 

meatballs in the school's possession were ground up and used to 

make spaghetti sauce. 

2. Proceedings in the trial court. The plaintiffs filed 

suit just a few months later, in August of 2006. After years of 

discovery and motion practice, the motion judge ordered the 

entry of summary judgment for the city, finding the evidence 

insufficient to create a triable issue of whether the city was 

negligent. The motion judge concluded in the alternative that 

the city was immune from liability pursuant to certain 

exemptions in the Massachusetts Tort Claims Act, G. L. c. 258.
5

One week before the scheduled start of trial, the 

plaintiffs filed motions in limine seeking sanctions against 

Rich Products for alleged spoliation of (1) laboratory notebooks 

and production records from 2004 relating to the development of 

the formula for the meatball and (2) the results of productdevelopment and production testing from 2004.5 The trial judge 

deferred ruling on the motions, stating that he "want[ed] to 

hear what the evidence is with respect to exactly what it was 

that was done with respect to the missing materials."

The plaintiffs' claims against Rich Products then proceeded 

to trial in March of 2014. The plaintiffs' theory of the case 

was that the use of Profam 974 caused Rich Products' meatball to 

have an unreasonably dangerous texture, presenting a choking 

hazard. In support of this theory, the plaintiffs presented an 

expert who had recreated the meatball -- using a detailed 

formula provided by Rich Products in answers to interrogatories 

-- for the purpose of comparing its texture to meatballs that 

did not contain Profam 974. This expert opined that the 

inclusion of Profam 974 made Rich Products' meatball more 

difficult to chew and break apart than the others in her test 

 

5 The plaintiffs also alleged that Rich Products failed to 

produce a document showing that the USDA approved the meatball 

in 2004. Rich Products produced that document at trial, 

however, after requesting it from the USDA through the Freedom

of Information Act.
6

study. Another of the plaintiffs' experts opined that both the 

size and texture of the meatball presented a choking risk to 

children.

At the close of the evidence, the judge asked the 

plaintiffs' counsel, "As far as the spoliation instruction, what 

information does the jury have in order for them to make a 

determination that normally they would have to make if I gave 

them that instruction? What information do they have as to when 

these various categories of things were destroyed?" Counsel 

responded by pointing to Rich Products' corporate policy 

requiring retention of documents for three years. The judge 

then ruled that there was no spoliation, that he would not give 

an instruction, but that he would not "prevent the plaintiffs 

from arguing the lack of evidence in that regard."

Discussion. 1. Spoliation. We review the judge's 

decision for abuse of discretion.6 See Scott v. Garfield, 454 

Mass. 790, 798 (2009). Under the doctrine of spoliation, a 

 

6 We reject Rich Products' argument that, because the judge 

did not specify the grounds for his ruling, we should assume 

that he made "implicit" factual findings against the plaintiffs 

on every element of spoliation, which we would then review for 

clear error. The argument is illogical and is not supported by 

the authority Rich Products cites. Furthermore, we believe it 

evident from the judge's questioning that the basis for his 

finding of no spoliation was that the plaintiffs put forth no 

"information . . . as to when these various categories of things 

were destroyed."
7

judge can impose sanctions against a litigant who "negligently 

or intentionally loses or destroys evidence that the litigant 

. . . knows or reasonably should know might be relevant to a 

possible action, even when the spoliation occurs before an 

action has been commenced." Ibid. See Mass. G. Evid. § 1102 

(2017). The premise underlying the doctrine is that a party who 

culpably destroys evidence "should be held accountable for any 

unfair prejudice that results." Keene v. Brigham & Women's 

Hosp., Inc., 439 Mass. 223, 234 (2003). The doctrine does not 

extend to "a fault-free destruction or loss of physical 

evidence." Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 127 

(1998). Thus, as the parties agree, the party seeking sanctions 

has the burden to "produce[] evidence sufficient to establish 

certain preliminary facts," Scott, 454 Mass. at 799, including 

"that a reasonable person in the spoliator's position would 

realize, at the time of spoliation, the possible importance of 

the evidence to the resolution of the potential dispute." Id. 

at 798 (quotation omitted). See Kippenhan, 428 Mass. at 127 

(sanctions are not "justified if the [evidence] was destroyed, 

lost, or otherwise disposed of before [the litigant] knew or 

reasonably should have known of the possibility of a suit").

Here, the judge was within his discretion not to give a 

spoliation instruction because the plaintiffs offered no 

evidence to establish the basic threshold fact of when the 
8

documents at issue went missing. Without establishing this 

threshold fact, the plaintiffs necessarily could not show that 

Rich Products lost or destroyed the documents when it knew or 

should have known of their potential significance. Consistent 

with the argument the plaintiffs made below, the only evidence 

they point us to is testimony regarding Rich Products' threeyear retention policy. But even if someone at Rich Products 

discarded the documents before the expiration of the three-year 

timeframe, that still would not prove that Rich Products lost or 

destroyed the documents after receiving notice of this lawsuit. 

Indeed, Rich Products offered evidence that the documents could 

have been lost in 2005 -- the year before Kelvin sustained his 

injury -- when a reorganization of the company caused "a lot of 

people . . . and a lot of documents [to be] moved around." 

Beyond this, no evidence was presented as to the circumstances 

or timeframe of the loss. The judge thus acted within his 

discretion in finding that the plaintiffs failed to establish 

the necessary factual predicates of spoliation. See Vigorito v. 

Ciulla Builders, Inc., 57 Mass. App. Ct. 446, 454-455 (2003) 

(judge properly denied spoliation motion where no information 

was offered as to circumstances in which evidence was lost). 

Moreover, even had there been spoliation, any prejudice to 

the plaintiffs was remedied by the judge's ruling allowing them 

to make use of the fact that the documents were missing. "Once 
9

spoliation has been established, the judge has the discretion to 

craft a remedy addressing 'the precise unfairness that would 

otherwise result.'" Westover v. Leiserv, Inc., 64 Mass. App. 

Ct. 109, 113 (2005), quoting from Fletcher v. Dorchester Mut. 

Ins. Co., 437 Mass. 544, 550 (2002). "The spectrum of remedies 

includes allowing the party who has been aggrieved by the 

spoliation to present evidence about the preaccident condition 

of the lost evidence and the circumstances surrounding the 

spoliation . . . ." Gath v. M/A-COM, Inc., 440 Mass. 482, 488 

(2003). "As a general rule, a judge should impose the least 

severe sanction necessary to remedy the prejudice to the 

nonspoliating party." Keene, 439 Mass. at 235. 

The plaintiffs here have not shown how the alleged 

spoliation prejudiced them in any significant way. With respect 

to the first category of missing documents -- laboratory

notebooks and other records relating to the development of the 

meatball formula -- the plaintiffs' claim of prejudice is that 

they did not have "confirmation regarding the actual formula" 

and "the spoliated documents would have shown that Rich 

[Products] changed the formula one year into production."7 But 

 

7 The plaintiffs' theory appears to be that the 2004 records 

would reveal a different formula than the one Rich Products was 

using in 2006, casting doubt both on the accuracy of the formula 

provided in Rich Products' interrogatory answers and on its 

claim that it made fifty-one million meatballs using the same 

formula without any other incidents of choking.
10

these issues were thoroughly explored at trial, and the 

testimony was consistent that, other than the removal of sesame 

seeds in 2006, Rich Products had made no changes to the formula 

since 2004. This testimony was supported by evidence that the 

approval application Rich Products submitted to the USDA in 2004 

set out the same formula as the application it submitted in 

2010. Also, if the plaintiffs had doubts as to the accuracy of 

the formula provided by Rich Products, they could have obtained 

comparable meatballs from the same product line for their 

experts to examine. See Westover, 64 Mass. App. Ct. at 114 

(movant was not prejudiced by opposing party's negligent loss of 

chair with alleged design defect because its experts could 

examine "chairs of the same make and model").8

 

8 At oral argument the plaintiffs suggested that no exemplar 

was available because Rich Products started using a different 

formula shortly after the choking incident. The suggestion 

seems to be based on evidence that, in August of 2006, Rich 

Products submitted an approval application to the USDA that 

listed a different formula than the one that appears on the 2004 

application. But several witnesses testified, under oath, that 

the 2006 application was submitted in error and that that 

formula was never used in production. Moreover, even assuming 

the formula was changed in 2006, an exemplar would still have 

been available to the plaintiffs because (1) there was at least 

a five-month gap between when Kelvin's injury occurred and when 

the new formula could have been put into production and (2) the 

formula Rich Products was using in 2010 was the same one it was 

using at the time of Kelvin's injury. Again, trial in this case 

did not start until 2014.
11

With respect to the second category of documents -- the 

testing results from 2004 -- the plaintiffs contend that these 

documents would have obviated the need for them to do their own 

testing "and would have contravened Rich [Products'] claim that 

[the] meatball had a reasonably safe texture." This is 

speculation. In fact, the evidence established that most of the 

testing was done for quality purposes, i.e., to assess whether 

people liked the taste and texture of the meatball. Although 

safety testing was also conducted, it was for the purpose of 

checking for bacteria and foreign contaminants, not for choking

hazards.

Thus, even assuming spoliation, the judge was within his 

discretion, given the minimal demonstrated prejudice to the 

plaintiffs, to decline to give an adverse-inference instruction 

but to allow the plaintiffs to make use of the fact that the 

documents were lost. And their counsel made the most of the 

opportunity, referring to the loss of relevant evidence in his 

opening statement, questioning Rich Products' employees at 

length about the missing documents, and arguing in closing that 

the jury should find the employees not credible because they had 

lost the documents.9 This was sufficient to remedy whatever 

 

9 The plaintiffs claimed at oral argument that Rich 

Products' counsel used the missing documents as a sword in his 

own closing, when he stated, "where's the evidence" that there 

was a change in the formula. But counsel followed that 
12

unfairness to the plaintiffs that was caused by the missing 

evidence. See Vigorito, 57 Mass. App. Ct. at 455 (while 

properly denying spoliation motion, judge ameliorated harm by 

"point[ing] out [movant] was free to make use in its own behalf 

of any part of" fact that evidence was destroyed). Cf. Keene, 

439 Mass. at 235 (it was within judge's discretion to impose 

"the least severe sanction necessary to remedy the prejudice").

2. Summary judgment for city. We review the motion 

judge's allowance of summary judgment for the city de novo, 

viewing the evidence in the light most favorable to the 

plaintiffs. See Boazova v. Safety Ins. Co., 462 Mass. 346, 350 

(2012). To prevail on a claim of negligence, a plaintiff "must 

establish that the defendant owed the plaintiff a legal duty, 

and that a breach of that duty proximately caused injury to the 

plaintiff." Petrell v. Shaw, 453 Mass. 377, 385 (2009). 

Although the inquiry is ordinarily one of fact, a defendant can 

prevail on summary judgment "by demonstrating that the 

 

statement by citing the evidence that was actually presented at 

trial -- specifically, the 2004 and 2010 USDA applications, 

which list the same formulas. Also, the plaintiffs' assertion 

of a change in formula derives from evidence that Rich Products 

submitted a different application to the USDA in 2006; but the 

plaintiffs had the 2006 records in their possession and 

questioned the witnesses about them extensively. See note 8, 

supra. We cannot glean from the plaintiffs' arguments what 

precise prejudice they claim they suffered from the loss of the 

2004 records.
13

[plaintiff] has no reasonable expectation of proving an 

essential element of his case at trial." Id. at 381. Put 

differently, "a judge may decide the issue as a matter of law 

when no rational view of the evidence permits a finding of 

negligence." Ibid. See Kourouvacilis v. General Motors Corp., 

410 Mass. 706, 716 (1991).

The plaintiffs contend that the city was negligent in two 

ways: by serving Kelvin a food product that was unreasonably 

dangerous for school-aged children and by failing to adequately 

supervise the students in the cafeteria. We agree with the 

motion judge that the plaintiffs had no reasonable expectation 

of proving negligence on either of these grounds. They 

presented no evidence that would allow a rational jury to find, 

or even infer, that the city knew or had reason to know of the 

alleged dangerousness of the meatball -- a USDA-approved product 

that the city bought through the National School Lunch Program.10 

Nor could a rational jury find that the city was negligent in 

supervising the students. Although the plaintiffs claim that 

school employees knew that the students "engaged in food eating 

contests and regularly engaged in high risk behaviors," they 

fail to identify what the employees could have done differently 

 

10 The plaintiffs also do not address the potential 

preclusive effect of the jury's finding that the meatball was 

not unreasonably dangerous. 
14

to curb those behaviors so as to have prevented Kelvin's 

injuries.11 See Glidden v. Maglio, 430 Mass. 694, 696 (2000) 

(defendant entitled to summary judgment where "plaintiffs failed 

to proffer any evidence . . . establish[ing] any causal link 

between their injuries and the defendant's breach of any duty to 

them"). 

To the extent the plaintiffs claim that the school 

employees' use of back blows and their allegedly faulty 

administration of the Heimlich maneuver were independent acts of 

negligence, that claim was also properly dismissed on summary 

judgment. Proof of medical causation "generally must be 

established by expert testimony." Harlow v. Chin, 405 Mass. 

697, 702 (1989). See Held v. Bail, 28 Mass. App. Ct. 919, 921 

(1989). It is beyond the ken of an ordinary juror to know 

whether the back blows or the administration of the Heimlich 

maneuver might have worsened Kelvin's condition. See 

 

11 The plaintiffs mention in passing the cafeteria 

supervisor's announcement that the children had four minutes 

left to finish their lunch, which they say "encourag[ed] these 

kids quickly to eat this already dangerous food." But the 

announcement is not itself actionable negligence. It simply 

implemented the school's decision to allot fifteen minutes for 

lunch, and the plaintiffs concede that that decision falls under 

the discretionary-function exemption to the Massachusetts Tort 

Claims Act. See G. L. c. 258, § 10(b). The plaintiffs also 

concede that the discretionary-function exemption bars any claim 

that the school assigned an insufficient number of employees to 

supervise the cafeteria or that the employees were inadequately 

trained.
15

Commonwealth v. Hamel, 91 Mass. App. Ct. 349, 352 (2017), 

quoting from Pitts v. Wingate at Brighton, Inc., 82 Mass. App. 

Ct. 285, 289 (2012) (expert testimony required where 

determination of causation required information outside "general 

human knowledge and experience"). Thus, the plaintiffs had to 

offer expert evidence to create a triable issue on their claim. 

They did not, nor did they raise any argument under 

Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), that additional 

discovery was necessary to respond to the city's motion. See 

Kourouvacilis, 410 Mass. at 716-717 (summary judgment proper 

where plaintiff failed to present expert evidence in support of 

her case); Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 

227-228 (1999) (same). 

In the end we agree with the motion judge's assessment that 

no rational view of the evidence would permit a finding that the 

school employees acted negligently in their response to this 

tragic accident. They immediately identified that Kelvin was in 

distress, took prompt actions to try to help him, and called 911 

for medical assistance. On these undisputed facts, the motion 

judge was correct to enter summary judgment for the city.12

Judgment affirmed.

 

12 The parties debate at length whether the city is immune 

from liability under the original cause exemption to the 

Massachusetts Tort Claims Act. See G. L. c. 258, § 10(j). 

Given our ruling, we need not resolve the issue.