The opinion
NOT FOR PUBLICATION WITHOUT THE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.
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 February 25, 2019
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
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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2
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 IBS-
constipation 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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6
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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8
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.
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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
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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;
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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
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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.
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