SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3071-17T2

STEVEN P. PICCIANO,

Plaintiff-Appellant,

v.

COSTCO WHOLESALE 

CORPORATION, COSTCO 

WHOLESALE CORPORATION 

OF CLIFTON, NEW JERSEY, and

WAWONA PACKING COMPANY,

Defendants-Respondents. 

__________________________________

Submitted January 24, 2019 – Decided

Before Judges Reisner and Mawla.

On appeal from Superior Court of New Jersey, Law 

Division, Essex County, Docket No. L-4430-16.

Piro, Zinna, Cifelli, Paris & Genitempo, LLC, attorneys 

for appellant (Daniel R. Bevere, on the briefs).

Fishman McIntyre Berkeley Levine Samansky, PC, 

attorneys for respondent Costco Wholesale Corporation 

and Costco Wholesale Corporation of Clifton, New 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

February 25, 2019
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Jersey (Lawrence M. Berkeley, of counsel and on the 

brief; David L. Kowzun, on the brief).

Hawkins Parnell Thackston & Young LLP, attorneys 

for respondent Wawona Packaging Company (Roy F. 

Viola, Jr. and Manuel A. Guevara, on the brief).

PER CURIAM

Plaintiff Steven P. Picciano appeals from two February 2, 2018 orders 

granting defendants' Costco Wholesale Corporation (Costco), Costco Wholesale 

Corporation of Clifton (Costco Clifton), and Wawona Packaging Company 

(Wawona) summary judgment. We affirm.

The following facts are taken from the motion record. At the time of the 

underlying incident in this case, Wawona contracted with Costco to supply 

peaches at its stores. However, Wawona was not Costco's sole supplier of 

peaches. 

Picciano was a Costco member. On July 8, 2014, he shopped at Costco 

Clifton and purchased a box of peaches. He consumed the peaches over the next 

week and began experiencing diarrhea, headaches, constant cramping, muscle 

pains, dehydration, and light-headedness. Picciano was treated by his 

gastroenterologist for his symptoms.

On July 14, 2014, after Picciano had consumed the peaches, he received a 

call from Costco advising him of a nationwide recall on peaches distributed by 
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Wawona between June 1, 2014 and July 12, 2014, because of a potential Listeria 

contamination. The notice provided the lot and block identification numbers 

subject to the recall. However, Picciano had discarded the packaging before he 

was made aware of the recall. 

Picciano sought medical treatment from Dr. Nader Moaven. Two stool 

cultures taken a week apart in July and August 2014, tested negative for 

Listeriosis. Dr. Moaven listed Listeriosis as one of the three potential diagnoses 

for Picciano's condition. 

Dr. Ethan Spira also treated Picciano. His July 30, 2014 report stated 

Picciano was treated at the hospital "[three] weeks after eating peaches" and his 

stool was "[n]egative . . . for Listeria." Dr. Spira concluded Picciano was 

suffering from Irritable Bowel Syndrome (IBS) with "likely slight worsening of 

symptoms after acute gastroenteritis." Dr. Spira's report also stated:

Febrile gastroenteritis secondary to listeria 

infection typically occurs after ingestion of a large 

inoculum of bacteria contaminated food. The attack 

rate varies from [fifty to one-hundred percent]. The 

symptoms included fever, watery diarrhea, nausea, 

vomiting, headache and pains in muscle and joints. 

This typical duration of symptoms is two days or less 

and recovery is generally complete.

. . . . 
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. . . Picciano carried a diagnosis of IBSconstipation predominant prior to his exposure to 

Listeria. He clearly had symptoms – fever, diarrhea, 

abdominal pain, malaise and dizziness compatible with 

an attack of febrile gastroenteritis secondary to Listeria. 

His IBS symptoms now include bloating and a mixed 

IBS syndrome with alternating constipation and 

diarrhea. He had also developed left sided abdominal 

pain. These symptoms can persist for years post 

infectious gastroenteritis.

Dr. Alexis Te treated Picciano in September 2014. Dr. Te noted Picciano's 

previous Listeria diagnosis, but stated it was a "presumed infection, not 

documented." Dr. Te's diagnoses did not include Listeriosis. Picciano also 

received treatment from Dr. Angelo Calabrese, who noted Picciano was 

"hospitalized . . . for presumed Listeria, not documented." Dr. Calabrese did not 

diagnose Picciano with Listeriosis. 

Picciano filed a complaint against defendants alleging causes of action for 

strict liability, negligence, breach of warranty, and breach of N.J.S.A. 24:5-1 to 

-22 prohibiting the sale, distribution, or manufacture of adulterated products. 

The complaint alleged Picciano's "treating physicians have causally related [his] 

gastro-enteric illness and symptoms to the Listeria contamination from the 

peaches he consumed." 

Following discovery, which included Picciano's deposition, defendants 

filed separate motions for summary judgment. Wawona argued there was no 
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evidence Picciano had consumed Wawona peaches, or that the peaches in 

question were actually contaminated with Listeria. It argued the medical records 

did not prove Picciano was actually exposed to Listeria. Wawona also argued 

Picciano failed to establish he purchased peaches it packaged, because the item 

number shown on the Costco receipt was "associated with approximately seven 

different manufacturers." 

The Costco defendants argued there was no evidence they had altered the 

peaches in any way. Picciano conceded this point, because he argued the 

contamination occurred while the peaches were in the manufacturer's 

possession. 

The motion judge noted:

[Picciano's expert report] says . . . the symptoms are 

compatible with listeria poisoning, but that's not the 

same thing as what [Picciano is] arguing, which is that 

[Picciano] has listeria and it was caused by the peaches. 

I don't see any medical evidence, at all, in the record 

that supports [Picciano]'s case that he was suffering 

from listeria. That the listeria was caused by exposure 

to the contaminated peaches. And that [Picciano's] 

expert actually says that he had listeria, as [Picciano] 

point[s] out in [his] argument. I'm having problems 

with that. I don't see any evidence in the record to 

support any of that.

. . . . 
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The only time [the expert] mentions exposure to 

. . . listeria is based upon what [Picciano] is telling 

him. . . .

Secondly. . . . [T]he final paragraph . . . lists out 

the symptoms that [Picciano] was suffering from, but 

basically . . . only goes as far as saying that those 

symptoms are compatible with an attack of febrile 

gastroenteritis secondary to listeria. I don't see where 

he actually says that [Picciano] is suffering from 

listeria, and that . . . listeria caused the symptoms that 

he was suffering from. 

The judge found Wawona had distributed contaminated peaches, but 

concluded the potential for receiving contaminated produce was not the same as 

proving the peaches Picciano purchased were actually contaminated. The judge 

noted the peaches were never tested to determine whether they were, in fact, 

contaminated. He stated:

[O]bviously, in your lawsuits you have to establish that 

the peaches were contaminated and . . . I'm gathering 

from what was submitted to the [c]ourt that the only 

evidence [Picciano] [has] is . . . a phone call from 

Costco or this recall notice. And if I look at the recall 

notice from the source of the peaches they're not even 

saying they're certain. It's just a potential for 

[contamination] — which isn't . . . enough to get past 

summary judgment.

The motion judge concluded:

I just don't see the evidence that I think is necessary for 

[Picciano] to pursue the claim in court. It's unfortunate 

that the peaches are gone, but there's no law or case 
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cited that allows that fact to excuse or lessen his burden 

under the circumstances.

In . . . [the] opposition [Picciano is] indicating 

that Dr. Spira is opining that within a reasonable degree 

of medical certainty [Picciano] suffered listeria 

poisoning, and that the cause of the poisoning was the 

contaminated peaches. That's what [Picciano] [has] to 

prove here. You have to prove that the peaches were 

contaminated. . . . You have to prove that the plaintiff 

ate the contaminated peaches. That he suffered the 

condition that arose from the contamination. And he 

suffered damages. And . . . there's no direct evidence 

of contamination. There are suggestions that he . . . 

might have been exposed, but there's no actual 

scientific proof that the peaches were contaminated. 

There's no real proof, frankly, that he ate Wawona 

peaches. . . .

Nevertheless, I'm looking at the expert that . . . 

[Picciano is] relying upon, Dr. Spira, . . . but . . . all he's 

really saying is that the conditions he was suffering 

from were compatible. And he's relying on [Picciano] 

telling [him] in diagnosing listeria, . . . and, again, I 

understand that by the time the testing comes about he 

may have already been treated for it and it's no longer 

there. But that doesn't change the fact that he still has 

to come into court and establish all those facts. And I 

just don't see it. . . .

But . . . even in a summary judgment setting, 

where I'm supposed to give all reasonable inferences to 

the [non-moving party], I just don't see any scientific 

evidence that supports [Picciano's] claim. . . .

. . . I would also, as an additional reason, allow 

Costco['s] summary judgment motion to go through 

because there's no evidence that they, in any way, 
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altered, re-branded or . . . did anything else to the 

packaging or the actual . . . peaches, themselves, when 

they came into their possession.

This appeal followed.

I.

We review "an order granting summary judgment in accordance with the 

same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).

We "must review the competent evidential materials submitted by the parties to 

identify whether there are genuine issues of material fact and, if not, whether 

the moving party is entitled to summary judgment as a matter of law." Ibid.

(citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-

2(c)).

We must review the facts in a light most favorable to the non-moving 

party, "keeping in mind '[a]n issue of fact is genuine only if, considering the 

burden of persuasion at trial, the evidence submitted by the parties on the motion 

. . . would require submission of the issue to the trier of fact.'" Schiavo v. Marina 

Dist. Dev. Co., LLC, 442 N.J. Super. 346, 366 (App. Div. 2015) (alteration in 

original) (quoting R. 4:46-2(c)). A motion for summary judgment will not be 

defeated by bare conclusions lacking factual support, Petersen v. Twp. of 

Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), self-serving statements
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unsupported by legally competent evidence, Heyert v. Taddese, 431 N.J. Super.

388, 413-14 (App. Div. 2013), or disputed facts "of an insubstantial nature." 

Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R. 4:46-2 at 2053 

(2019).

"[I]t is evidence that must be relied upon to establish a genuine issue of 

fact. 'Competent opposition requires "competent evidential material" beyond 

mere "speculation" and "fanciful arguments."'" Cortez v. Gindhart, 435 N.J. 

Super. 589, 605 (App. Div. 2014) (emphasis omitted) (quoting Hoffman v. 

Asseenontv.Com, Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009) (citing 

Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 

(App. Div. 2005))). "The practical effect of this rule is that neither the motion 

court nor an appellate court can ignore the elements of the cause of action or the 

evidential standard governing the cause of action." Bhagat, 217 N.J. at 38.

Picciano argues summary judgment was improperly granted because he 

established defendants were strictly liable. At a minimum, he assert there were 

material facts in dispute which thwarted summary judgment. He argues he 

presented medical expert testimony to support his claims and the judge erred 

when he determined there was no expert testimony to establish causation. 
10 A-3071-17T2

II.

Products liability actions are governed by the Products Liability Act 

(PLA). N.J.S.A. 2A:58C-1 to -11. Pursuant to the PLA, a cause of action is 

defined as "any claim or action brought by a claimant for harm caused by a 

product, irrespective of the theory underlying the claim, except actions for harm 

caused by breach of an express warranty." N.J.S.A. 2A:58C-1(b)(3).

The PLA states:

A manufacturer or seller of a product shall be 

liable in a product liability action only if the claimant 

proves by a preponderance of the evidence that the 

product causing the harm was not reasonably fit, 

suitable[,] or safe for its intended purpose because it: a.

deviated from the design specifications, formulae, or 

performance standards of the manufacturer or from 

otherwise identical units manufactured to the same 

manufacturing specifications or formulae, or b. failed 

to contain adequate warnings or instructions, or c. was 

designed in a defective manner.

[N.J.S.A. 2A:58C-2]

A manufacturer or seller of product may be held strictly liable for harm 

caused by a product for defective manufacture, defective design, and defective 

warnings. Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 94-95 (1990). All 

three theories require a plaintiff to prove that the product was defective, the 
11 A-3071-17T2

defect existed when the product left the hands of the defendant, and the defect 

caused the injury to plaintiff. Myrlak v. Port Auth., 157 N.J. 84, 97 (1999).

"A product is deemed to be defective if it is not reasonably fit, suitable, 

or safe for the ordinary or foreseeable purpose for which it is sold." Ibid. 

However, "[t]he occurrence of an accident and the fact that someone was injured 

are not sufficient to demonstrate a defect." Lauder v. Teaneck Volunteer 

Ambulance Corps, 368 N.J. Super. 320, 332 (App. Div. 2004) (citing Scanlon 

v. Gen. Motors Corp., Chevrolet Motor Div., 65 N.J. 582, 591 (1974)). 

We reject Picciano's challenges to the summary judgment decision. The 

evidence offered to demonstrate he had purchased Wawona peaches was limited 

to his self-serving deposition testimony, a nationwide notice of recall issued by 

Wawona, and a lot and block number published as part of the recall. However, 

Picciano admitted he no longer possessed any of the peaches, or the packaging 

to link the peaches he purchased to the recalled lot and block. Picciano's Costco 

receipt did not indicate the brand of peaches he purchased and only provided a 

product number, which was associated with approximately seven distributors 

and not exclusively Wawona. The record also lacks evidence the peaches 

Picciano consumed were actually contaminated. The recall notice issued by 
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Wawona only stated the products sold to certain distributors were "potentially" 

contaminated. 

The medical evidence only indicated Picciano's symptoms were 

"compatible" with a diagnosis of Listeria exposure, and his stool cultures were 

not positive for Listeria. It was undisputed he suffered from pre-existing IBS 

and the symptoms he experienced were also compatible with this condition. 

Although Dr. Moaven's initial report listed six diagnoses, including Listeriosis, 

the subsequent reports noted the condition was "presumed" and "not 

documented." Dr. Spira's report only stated Picciano's symptoms were

"compatible with an attack of febrile gastroenteritis secondary to Listeria." 

Therefore, the record lacks competent evidence Picciano actually suffered from 

Listeria exposure. 

Picciano's argument also fails to establish Costco is liable as a seller of 

the allegedly contaminated peaches. He cites McGuinness v. Wakefern Corp., 

257 N.J. Super. 339 (1991) for the proposition that seller liability can be

imposed on the Costco defendants under the PLA. However, the case is 

inapposite because it did not address seller liability under the PLA.

The PLA defines "product seller" as

any person who, in the course of a business conducted 

for that purpose: sells; distributes; leases; installs; 
13 A-3071-17T2

prepares or assembles a manufacturer's product 

according to the manufacturer's plan, intention, design, 

specifications[,] or formulations; blends; packages; 

labels; markets; repairs; maintains or otherwise is 

involved in placing a product in the line of commerce.

[N.J.S.A. 2A:58C-8.]

N.J.S.A. 2A:58C-9(a) provides that "[i]n any product liability action 

against a product seller, the product seller may file an affidavit certifying the 

correct identity of the manufacturer of the product which allegedly caused the 

injury, death[,] or damage." "Upon filing the affidavit . . ., the product seller 

shall be relieved of all strict liability claims, subject to the provisions set forth

in subsection d. of this section." N.J.S.A. 2A:58C-9(b). A product seller is 

immune from liability where it identifies the manufacturer of the defective 

product, unless there are exceptional circumstances proving the product seller 

exercised control contributing to the product's defect, knew or should have 

known about the defect, or created the defect. N.J.S.A. 2A:58C-9(d).

The Costco defendants have no seller liability because the record 

demonstrated they did not alter or re-brand the product, or manipulate the 

packaging in any way. Picciano conceded the Costco defendants did not alter 

the peaches in any way, did not create or manufacture the product, and were not 

aware of the contamination at the time of purchase. As we noted, Picciano 
14 A-3071-17T2

conceded the alleged contamination occurred at the manufacturer's facility. 

Therefore, none of the exceptions under N.J.S.A. 2A:58C-9(d) were met. 

Affirmed.