Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50374

Summary Calendar

LONE STAR BAKERY, INC.,

Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

No. 5:05-CV-11

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Lone Star Bakery brought a negligence claim against the government

under the Federal Tort Claims Act, alleging that Food and Drug Administration

agents negligently caused an erroneous report of dangerous bacteria in its

products. The district court granted summary judgment to the government,

finding that Lone Star had failed to raise fact issues on the elements of duty and

United States Court of Appeals

Fifth Circuit

F I L E D

November 17, 2009

Charles R. Fulbruge III

Clerk
No. 09-50374

2

causation. Because we agree that Lone Star has failed to raise a fact issue on

causation, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Lone Star Bakery, Inc., is a commercial baker that makes biscuits at a

plant in China Grove, Texas. Until 2002, Lone Star had sold biscuits to

Southland Corporation, the owner of 7-Eleven convenience stores. Under that

arrangement, Lone Star delivered biscuits to Phoenix, Arizona, where

MarketFare Foods, Inc., assembled them into completed sandwiches for delivery

to convenience stores; MarketFare purchased other ingredients, such as egg and

cheese, from different vendors. The termination of Lone Star’s arrangement

with Southland prompted the lawsuit at issue.

On March 1, 2002, the Florida Department of Agriculture and Consumer

Services received a consumer complaint of gastrointestinal distress. The

complaint alleged that the stomachache was caused by consumption of a

sausage, egg, and cheese biscuit sandwich purchased from a convenience store

in Daytona Beach, Florida. An inspector collected five sample sandwiches from

the store, two of which tested positive for Listeria monocytogenes, a harmful and

potentially fatal bacterium. The Florida agency alerted MarketFare and the

United States Food and Drug Administration (FDA).

The FDA began its investigation at MarketFare’s Phoenix assembly plant.

Two inspectors collected the individual components and shipped them to an FDA

laboratory in California. There, the individual components were tested. On

April 5, 2002, a representative from the FDA informed MarketFare that the

biscuit component and the finished sandwich had both tested presumptive

positive for Listeria monocytogenes. That same day, MarketFare issued a recall

of the sandwiches, and Southland terminated its business relationship with Lone

Star.
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On April 9, the FDA conducted an inspection at Lone Star’s China Grove

plant. FDA workers observed perforations in the plastic packaging used to seal

the biscuits before they were shipped to MarketFare. Lone Star was informed

on April 25 that the facility and biscuits tested negative for Listeria

monocytogenes; a written report to this effect was issued on April 30. During

this time, the FDA did not order a recall of any Lone Star biscuits.

Lone Star filed an administrative claim with the FDA on August 1, 2003,

claiming over $2.9 million in damages. After waiting the requisite six months

under 28 U.S.C. § 2675(a), Lone Star filed suit in federal district court under the

Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. Lone Star’s amended

complaint alleged that the FDA was negligent in its collection, testing, and

reporting of the biscuit samples manufactured by Lone Star.

The government moved to dismiss Lone Star’s complaint under Federal

Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief

could be granted. Lone Star filed a memorandum in opposition to the motion

and attached a partial transcript of the deposition testimony of Bruce Benware,

one of the FDA representatives who collected sandwich components at

MarketFare’s Phoenix plant. The government filed a reply, attaching the

reports of both parties’ experts. Because matters outside the pleadings were

presented, the district court treated the government’s motion as one for

summary judgment under Rule 56. See FED. R. CIV. P. 12(d). The district court

granted the government’s motion, holding that Lone Star had neither

established that the FDA owed it a duty under Texas law nor raised a fact issue

on whether the FDA proximately caused Lone Star’s claimed damages. Lone

Star now appeals.

II. STANDARD OF REVIEW

“We review a grant of summary judgment de novo, applying the same

standards as the district court.” Frakes v. Crete Carrier Corp., 579 F.3d 426, 429
No. 09-50374

 We note that Lone Star’s claims of negligence relate to biscuits the FDA collected in 1

Arizona and tested in California.

4

(5th Cir. 2009). Summary judgment is appropriate when “the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is

no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(c). Summary judgment is

proper only if no reasonable jury could return a verdict for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where the nonmoving

party bears the burden of proof at trial on a dispositive issue, he or she must go

beyond the pleadings and designate specific facts showing a genuine issue for

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Factual controversies

are resolved in favor of the nonmoving party, but factual controversies require

more than conclusory allegations, unsubstantiated assertions, or a mere scintilla

of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

III. DISCUSSION

The Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., abrogates the

United States’ sovereign immunity for compensatory damages arising out of

claims for

injury or loss of property . . . caused by the negligent or wrongful act

or omission of any employee of the Government while acting within

the scope of his office or employment, under circumstances where

the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or

omission occurred.

28 U.S.C. § 1346(b)(1); see Johnson v. Sawyer, 47 F.3d 716, 727 (5th Cir. 1995)

(en banc). The parties agree, and we will assume for purposes of this appeal,

that Texas law governs this dispute.1

In Texas, the elements of negligence “are the existence of a legal duty, a

breach of that duty, and damages proximately caused by the breach.” IHS
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Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.

2004). “The two elements of proximate cause are cause in fact (or substantial

factor) and foreseeability.” Id. The district court concluded that Lone Star had

failed to establish the duty of care a private laboratory in these circumstances

would owe under Texas law. It further found that Lone Star had failed to

present any evidence that the FDA proximately caused its financial loss.

Because we find the causation issue dispositive, we do not address the district

court’s conclusion regarding duty.

The parties agree that Lone Star’s summary judgment burden regarding

proximate cause is to provide evidence that would allow a reasonable fact finder

to conclude that the FDA’s negligence caused a false positive result. Our review

of the record leads us to the conclusion the district court reached: the summary

judgment evidence does not raise a genuine issue of material fact on causation.

Lone Star urges that its evidence permits a reasonable juror to find that

the FDA caused the biscuits to falsely test positive for Listeria monocytogenes.

It cites Benware’s deposition testimony related to collecting the biscuit samples

from MarketFare for the following summary judgment facts: (1) Benware was

not aware that the biscuits were in a perforated shrink-wrap packaging and thus

might have been contaminated as he and the other inspector reached into the

box; (2) the packaged biscuits were not placed in sterile containers for shipment

to the FDA laboratory; and (3) the government documents do not establish the

chain of custody for the biscuits. Lone Star also claims that the FDA impliedly

acknowledged it had contaminated the biscuit samples when it failed to demand

a market recall, despite the widespread sales of the biscuits to other food sellers.

The government responds that this deposition testimony falls far short of

the minimum required to establish causation. It cites the report prepared by

Lone Star’s expert witness, which concludes:
No. 09-50374

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The integrity of the biscuit samples collected at MarketFare on

March 21, 2002, was compromised by the FDA; thus, all results with

regard to the biscuit component were meaningless. The FDA failed

to follow its directives and mandates throughout its investigation at

MarketFare, which began on March 21, 2002.

The government contends that a mere possibility of contamination differs

meaningfully from evidence that contamination and a false positive in fact

occurred. It argues that the former would amount to a strict liability standard

for any breach of agency procedures, while the latter is unsupported by the

summary judgment evidence.

In support of their arguments on causation, both parties cite the

unpublished decision of Baker v. Abo, No. Civ. 01-1248, 2003 WL 21639151 (D.

Minn. July 2, 2003). In that case, a truck driver was discharged based on the

results of a drug test that he argued was improperly performed, leading to

contamination of the sample and a false positive result. Id. at *1. The truck

driver asserted that due to claimed irregularities in conducting the test, his

results should have been voided and not communicated to the employer. Id. at

*2. The court considered an affidavit by the truck driver’s expert witness, but

found the expert “did not opine that [the breach alleged] could have caused the

positive result in this test”; the remaining evidence did not permit a reasonable

factfinder to determine the defendant’s negligence caused the false positive

result. Id. at *4. The court expressly rejected a strict liability standard under

which a mere possibility of contamination would carry the truck driver’s

summary judgment burden of raising a fact issue; it then granted summary

judgment for the employer, finding the truck driver had failed to raise a fact

issue on causation. Id. at *3–4.

Our review of the record reveals that the report of Lone Star’s expert and

the deposition testimony of Benware are the only pieces of evidence that pertain

to the issue of proximate causation. The expert report discusses several
No. 09-50374

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instances where the FDA inspectors failed to follow agency collection and testing

protocol, but it is devoid of any claim that these failures caused the biscuit

samples to test falsely positive for Listeria monocytogenes. Benware’s testimony

similarly permits an inference of breach, but it fails to raise a fact issue on

whether the FDA’s conduct caused the biscuit samples to test falsely positive for

the bacteria. Because Lone Star bore the burden of proof on this essential

element of its cause of action, the district court properly granted summary

judgment to the government.

IV. CONCLUSION

For the reasons discussed above, the district court’s grant of summary

judgment for the government is AFFIRMED.