Heard: September 8, 2017.
action commenced in the Superior Court Department on August
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.
Diller (Jonathon D. Friedmann also present) for the
W. McDonough for Rich Products Corporation & others.
B. Pappenheim, Assistant City Solicitor (Elliott Veloso,
Assistant City Solicitor, also present) for city of Lowell.
Present: Milkey, Hanlon, & Shin, JJ.
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,  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. 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.
The choking incident.
basic facts regarding what occurred during the incident are
not in dispute.
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.
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 ...