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Santiago v. Rich Products Corp.

Appeals Court of Massachusetts, Middlesex

December 28, 2017

KELVIN SANTIAGO & others [1]
v.
RICH PRODUCTS CORPORATION & others.[2]

          Heard: September 8, 2017.

         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.

          Hannah B. Pappenheim, Assistant City Solicitor (Elliott Veloso, Assistant City Solicitor, also present) for city of Lowell.

          Present: Milkey, Hanlon, & Shin, JJ.

          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 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 ...


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