# FILED May 14, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

______________________________________________ BETTY BURGESS and CARTER BURGESS, Individually and as Parents an Next Friend of Crockett Burgess, a minor, Plaintiffs-Appellants, Coffee Circuit No.27,148 Vs. C.A. No.01A01-9609-CV-00436 RICK FLOYD and KERNEY CISCO d/b/a TULLAHOM

A CEE BEE STORE, Defend ants-App ellees.

______________________________________________________________ ______________ FROM THE CO FFEE COUNTY CIRCUIT COURT THE HONORABLE JOHN W. ROLLINS, JUDGE

Doyle E. Richardson; Rogers, Richardson & Duncan

of Manch ester, Fo r Appella nts John R. Rucker, Jr.; Rucker, Rucker & Coleman of Murfreesboro, For Appellees

AFFIRMED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: ALAN E. HIGH

ERS, JUDGE DAVID R.FARMER,

JUDGE2 This is a produ ct liabilit y case. P

laintiff s, Betty Bur

gess and C arter Bu

rgess (th e Burgesses), individually and as parents and next frie nd of Croc

kett Burgess, a minor, appeal the trial court’s order

granting summary ju dgment in f

avor of d efenda nts, Rick Floyd and Kerney Cisco d/b/a/ Tullahoma Cee Bee Store (Cee Bee Store). On February 11, 1990, the Burgesses purchased two and a half cases of ProSobee from the Cee Bee Store for their eight-month-old son, Crockett Burgess, with a vou cher pr ovided to them by the Wome n, Infan ts and Child

ren’s Sup plementa l Food Progr

am. ProSob ee is a concentrated

baby formula manufactured by MeadJohnson & Company and distributed to the Cee Bee Store by C.B. Ragland & Company. Rick Floyd and Kerney Cisco are the owners and operators of the Cee Bee Store. The Burgesses first finished two c ans of ProSobee left from a previous purchase. On February 13, 1990, the Burgesses went to visit Mrs. Burgess’s mother. While at her mother’s house, Mrs. Burgess prepared a can of the ProSobee fo rmul a that she boughtfrom the Cee Bee Store two days ear lier. Mrs . Burgess did not check the ex piration d ate

on the ProSob ee can a

nd, afte r prepa ring the Pr

oSobee, t hrew the can into h

er mo ther’s tra sh. The ProSobee looked and appeare d normal. It was wh ite and di d not have

any lumps. Mrs. Burgess s ho ok up the c an, opened it, and poured th

e ProSobe e into a ju g. She the n mixed in distilled water that she kept in the refrigerator, pour ed the mixture into individual bottles, put the nipples on the bottles, and put the bottles into the refrigerator. Before feeding Crockett, she put his bottle in a bowl and ran warm tap water over the bottle to wa rm it up . Crockett dran k the whole bottle at about 11:00 a.m. and then fell asleep. When he woke up from his nap a couple of hours later, he began throwing up and had diarrhe a. The Burg ess es ate dinner and then decided to take Crockett home. They stopped off at the Cee Bee store to buy cigare

ttes. Mrs. Burgess told the cashier that Crockett was not feeling well, and the cashier told her to go home and check the baby for

mula. Mrs. Burgess w ent home, checke d the unop ened ca ns of for mula stored under her sink, and found that some of the cans had an April 1986 expiration date. After speaking with Dr. Shirley Bard, Crockett’s pediatrician, the Burgesses too k Crocke tt to the Harton Regional M edical C enter where h e was ad mitted and

remaine d for six d ays. Croc kett

was d iagnosed

with dehy dration d

ue to gast

roenter itis and dia

rrhea a nd tested positive fo r rotaviru s, a virus transmitted by humans. He was transferred to Vande rbilt University Medical Center, and his diagnosis upon discharge was gastroenteritis.3 On Februar

y 8, 1991, t

he Burge sses file d suit aga inst MeadJohnson & Company (Mead Johnson), C.B. Ragland & Company, and Rick Floyd and Kerney Cisco d/b/a Tullahoma Cee Bee Store alleging that the baby formula was spoiled, poisonous, and contaminated a n d that Crockett suffer s from developmen tal defic its and delays as a resu lt of ingesting the outdated ProSobee. The complaint relies on the theories of res ipsa loquitur , strict liability, negligence, and breach of warranty. All of the def endants filed motions for

summary ju dgment, and on May 2 7, 1994, the trial court granted summary judgment on the issue of res ipsa loquitur as to al l defenda nts and on str

ict liabili ty as to defendant s C.B. Ragland Company and the Cee Bee Store. The trial court

also overruled the defendants’ motions on the issues of negligence and breach of the implied warranty of merchantability. On June 21, 1994, the Burgesses voluntarily dismissed their lawsuit. The Burgesses refiled their suit against the same defenda nts on May 26, 1995 and,

as to the defendants in this appeal, rely on the theories of negligence and b reach of implied

warran ty of merc hantability. On Ma y 1, 1996, all of the defendants again filed motions for summary judgment, and after a hearing on July 3, 1996, an order was entered on July 11, 1996 granting summary judgment in favor of all the defendants. The Burgesses appeal the trial court’s decision only as to defendants Rick Floyd and Kerney Cisco d/b/a Tullahoma Cee Bee Store. The Burgesse s basica

lly prese nt one issue f

or revie w: Whethe

r the tria l court e rred in granting summary ju dgment in f avor of d

efenda nts Rick Floy d and Ker ney Cisco

d/b/a Tullahoma

Cee Bee Stor e on the is su es of negligence and breach of the implied warranty of merchantability. A trial cou

rt should g

rant a mo tion for su

mmary ju dgment on ly if the movant demonstrates that there are no genuine issues of mate rial fact and that

the moving

party is entitled to judgment as a matter of law. T enn. R. Civ. P. 56.03; Byrd v. Ha ll , 847 S.W.2d 208, 210 (Tenn. 1993); Dunn v. Hack ett , 833 S.W.2d 78, 80 (Tenn. App. 1992). The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fa ct exists. Byrd , 847 S.W.2d at 210. On a motion for

summary judgment, “the court must take the stronges tlegitimate

view of th

e evidence in

favor of the non

moving par

ty, allow a

ll reason able inferences in favor of that party, and di s card all countervailing evidence.” Id . at 210-11. In Byrd , the Tennessee Supreme Court stated:

Once it is shown by the moving party that there is no genuine4 issue of material fact, the nonmoving party must then de mons trate, by affid avits or d iscover y materia ls, that the

re is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party ca nnot simply

rely upon his pleadings butmust set forth specific

facts showing that there is a genuine i ssue of ma

terial f act for trial. Id

. at 211 (emphasis in original)(citations omitted). Where a genuine dispute exists as to any material fact or

as to the conclusions to be drawn from those facts, a court must deny a motion for summary judgment. Id. (citing Dunn , 833 S.W.2d at 80). The Burg esses as s ert that t he trial c ourt err

ed in gra nting summa

ry judgme

nt becau se there is a genuine issue of material fact conc erning the liability of appellees. Product liability actions in this state are governed by the Tenn es see Produ cts Liabi lity Act of 1978. T.C.A. §§ 29-28-101 et s e q. (1980 & Supp. 1996). Section 29-28-105 provides the following: 29- 28-1 05. Deter mination of

defect ive or dang erous condition. - (a) A manufacturer or seller of a product shall not be liable for any i njury toperson or property caused by the product unless the product

is determ ined to be in a defective condition or unreaso nably dangerous at the time it left the c ontrol of the manufacturer of seller. (b) In ma king this determination the state of scientific and technological knowledge avail able to the manufacturer or seller at the time the product was placed on the market, rather than at the time of injury, is applicable. Consideration i s gi ven also t o the customary designs, methods, standa rds a nd techniques of manufacturing, inspecting and testing by other manufacturers or sellers o f similar p

roducts. (c) The provisions of this section do not app ly to an action based on expre ss warra

nty or misr

eprese ntation re garding t

he chatt el. (d) A produc t is not unreasonably dangerous because of fa ilure to adequa tely warn of a danger or haz ard th at is apparent to the ordinary user. T.C.A. § 29-28-105 (1980). As this Court stated in Fulton v. Pfizer Hospital Products Group, Inc. , 872 S.W.2d 908 (Tenn. App. 1993):

Plaintiff must prove that

the product was defective, regardle ss of the legal theory upon which he relies. Indeed, it makes no

differe nce whe th e r the complaint is couche d in terms of negligence, strict liability, or breac h of war ranty, it h as gener

ally been held in th e State of Tennessee that in order for a plaintiff to recover under any th eory of product liabi l ity, the plaintiff must establish that the product was defective [or] unrea s on ably5 dangerous at the time the product left the control of the manufacturer. Id. at 911 (ci tations omitted). Section 29-28-102(2) provides the following definition of a defect ive condi tion: (2) “Defective condition” means a c onditio n of a product that render s it unsafe for normal or anticipatable handling an d consumption. T.C.A. § 29-28-102(2) (1980). The Burgesses assert that the ca n o f ProSobee ingested by Crockett was defective and that they are e ntitled to recovery. In support of

its motion f

or summar

y judgment , Cee Bee

Store relies on the

affida vits submitted in support of its co-defe ndants as well as the affidavit submitted by Rick Floyd. Willi amR. Cross, the Direc tor of Qua lity Assur ance at Mead John son, submit

ted an af fid avi t stating that he reviewed the records documenting the testing o f the batch of ProSobee alleged by the B urges ses to be d efectiv e. Cross st

ated tha t FDA regulations require tha t all ster ile products , including baby formula, be manufactured to be fre e from c ontamina nts such a s bacter

ia and other s ubstance s. He further stated that the FDA regulations require that the pr oduct be sealedin a container that

prevent s the entr

y of micro organism s or other harmful substances when normally stored so that the p

roducts r emain s sterile

after p rocessi ng and unt

il the con tainer is opened. Cross stat

ed that Pr oSobee is manufactured as a sterile product under FDA regulations and that the sterility of the product is not aff ected in any manner by its “use by” date or expiration date. A can of ProSob e e that is past its expiration date will maintain its labeled amounts of minerals, protein, fat, and carbohydrates, but it may not provide theminimum lev els of vitamins se

t forth on the label. It is f

or these reasons that the Mead Johnson stamps an expiration on ProSobee baby formula. Cross further stated that a properly stored, unopened ca n of ProS obee c onsumed even four years beyond its expiration date will not grow bac teria or organism s harmful t

o a child and will not spoil or deteriorate to the extent that harm to an infant will result. Dr. Donna Seger, a

toxicolog ist and he ad of the Poison Contr

ol Center at Vande rbilt Universi ty Medical Center, also submitted an affidavit in support of Mead Johnson. Dr. Seger stated that it was her opinion, based on a reasonable degre e o f medi cal certainty, that a can of ProSobee four years past its “use by” date would not contain poisonous toxins.6 Dr. George L. Baker, Vice President and Medica l Director for Mead Johnson, al so submitted an affidavit in support of Mead Johnson, stating tha t other than not satisfying the vitamin allowance as stated on

the conta iner, a s inglefeeding

of ProSobe e past its e

xpiration date will not otherwise affect or harm an infant. He further stated t

hat it was hi s opinion, to a

reasona ble degree of medical certainty, that ingesting a can of ProSobee outdated by four years would not cause gastroenteritis or diarrhea. Rick Floyd also submi tted an affidavit stating that he checked the dates of a ll the productswhen he bought

the Cee Bee Store in November of 1988 a nd that al l of the ou

t-of-da te products were removed from the store. He also stated that ProSobee is a fast m oving prod

uct, that it is difficult to keep the formula in stock, and that he has run out of the formula on many occasions. The defendants also submitted the deposition of Dr. Shirley Bard, Crockett’s pediatrician, who stated that she could not say to a reasonable degree of medic al certainty whether the water mixed with the Pr

oSobee, t he jug use d to mix th e water and the ProSobee, or a “bug” caused Crockett’s illness. She further stated that she had no medical or scientific proof

that ProSobee develops toxins if past its expiration date. In addition, Dr. Bard admitted that the test performed on one of the out-of-date ProSobee cans supplied by the Burgesses wa s negative for bacteria. In response to the defendants’ motions for summaryjudgment, the Burgesses submitted the affidavit of Dr. Bard, which incorporated a transcript of an interview in which she stated that she believes Crockett’s illness was caused by the ProSobee because “the proximity is just there.” The Burgesse s also subm itted Dr. Bard’s me dical re cords re lating to Crockett’s illness and the complain ts filed with

the Unite d States Foo d & Drug Ad ministrati on (FDA) o f four in fants who became ill after ingesting outdated cans of ProSobee. The Burgesse s did

not setforth specific facts to prove that the particular c an of ProSobee ingested by Crockett was past its expiration date. Even assuming that Crockett ingested a can of ProSobee that was p ast its expiration date, the Burgesses offered no proof that an outda ted can of ProSobee

is defec tive. As th

is Court asserted in Whaley v. Rheem Manufacturing Co. , 900 S. W.2d 296 (Tenn. App. 1995), mere proof of an injury is not enough by itself to pr ove th e existence of a

defect. Id. at 299. Th

us, the me

re fac t that Croc

kett bec ame ill after drinking an outof date can of ProSobee is not enough in and of itself to establish that an out of date can of7

ProSobee is defective. In addition, even i f the complaint s of similar illnesses on file with the FDA would be admissible to prove that an outdated can of ProSobee is defective, the Burgesses failedto set for

th any spe cific fa

cts to esta blish that Crockett’s illness was caused by ingesting an outdated can of ProSobee. In summary, we conc lu de that the Burgesses did not establish that an outdated can of ProSobee is a defective product under T.C.A. § 29-20-102 or that Crockett’s illness was caused by ingesting an outdated can of ProSobee. There are no genuine issues of material fact, and appellees are entitled to judgment as a matter of law. Accordingl y, the orde

r of the tr ial cour t is affir med. Costs o f this app eal are asse sse d against appellants.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ DAVID R.FARMER,

JUDGE