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Fitzpatrick v. Wendy’s Old Fashioned Hamburgers of New York, Inc.

Appeals Court of Massachusetts, Suffolk

November 7, 2019


         Argued March 13, 2019.

         [136 N.E.3d 358] CIVIL ACTION commenced in the Superior Court Department on August 9, 2013. The case was tried before Heidi E. Brieger, J., and a motion for a mistrial was heard by her.

         Matthew J. Fogelman for the plaintiff.

         Christopher A. Duggan, Boston (Pauline A. Jauquet, Lincoln, also present) for Wendy’s Old Fashioned Hamburgers of New York, Inc., & another.

         Present: Wolohojian, Blake, & Shin, JJ.


         WOLOHOJIAN, J.

         In this appeal we conclude that it was an abuse of discretion to allow a new trial based on statements in plaintiff’s counsel’s closing argument that crossed the bounds of permissible advocacy. We reach this conclusion because, among other things, the judge did not apply the correct legal standard and, as

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a result, failed to conduct a survey of the whole case, as she was required to, to determine whether a miscarriage of justice would result absent a new trial. Instead, it appears the judge nullified the jury’s verdict and allowed a new trial as a form of sanction for counsel’s closing. This she could not do. A "new trial motion is not a mechanism for addressing individual errors at trial. It is an opportunity to allow the judge to take ‘a survey of the whole case’ to ensure that a ‘miscarriage of justice’ has not occurred." Wahlstrom v. JPA IV Mgt. Co., 95 Mass.App.Ct. 445, 447, 127 N.E.3d 274 (2019), quoting Evans v. Multicon Constr. Corp., 6 Mass.App.Ct. 291, 295, 375 N.E.2d 338 (1978). For this reason, we vacate the order allowing the defendants’ motion for mistrial, and remand for further proceedings.


         On January 23, 2011, the plaintiff, a thirty-four year old woman with good teeth, paid $5.64 for a small plain hamburger with no toppings and French fries from a Wendy’s restaurant in Medford and took them home to eat for dinner. On the third or fourth bite, she heard a loud crack and crunching, and felt a pain shoot up into her upper left gum. She spit out the half-eaten food and discovered that her mouth was bleeding and one of her upper left molars (tooth 14)[2] was split in two. The injury was caused by a piece of bone in the hamburger.[3]

         The bone had split tooth 14 well below the gum line, and the dental nerve was sheared, bleeding, and exposed.[4] The bone also caused minor damage to the opposing lower molar (tooth 19), which was easily repaired with a filling. But repairing tooth 14 was not a simple matter and required at least twenty-three trips to various dentists over the next two years. To begin with, the disengaged part of tooth 14 (which was moving loosely) had to be removed. In addition, the plaintiff had to undergo an immediate root canal by an endodontist, who subsequently had to perform a second root canal. The initial goal was to try to save the remaining portion of tooth 14 and to restore it with a cap. To accomplish this, the dentist, over several appointments, performed a

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gingivectomy[5] (necessary because of the depth of the break), implanted a titanium post in the tooth’s canal, fitted a temporary crown, and then cemented in a permanent crown.

          But the plaintiff’s anatomy was not "ideal" for the crown and, as a result, the tooth required ongoing special cleaning. Within about a month, the plaintiff’s gum was sore and throbbing and X-rays revealed bone loss caused by an inflammatory process most likely due to the fact that tooth 14 could not be cleaned efficiently. At this point, the plaintiff was prescribed a prescription-strength mouthwash and referred to a periodontist to see if tooth 14 could be saved.

         The periodontist identified two possible treatment options. The first (which the periodontist did not favor) was to surgically "re-contour the gum and the bone around the crown to see if the final result would make [tooth 14] cleansable and sustainable." The second option was to extract tooth 14, and replace it with a dental implant. This was the periodontist’s favored solution based on how deep the original fracture had extended under the gum. Unfortunately, however, the plaintiff did not have sufficient "sinus elevation" or quality of bone in which to anchor an implant. Thus, this option required sinus elevation surgery to push up the floor of the sinus, along with bone grafts to increase the span of bone to hold the implant. The bone grafts could be done using the patient’s own bone (in which case additional surgery would be required to harvest bone from elsewhere in the patient’s body), freeze-dried animal bone, or bone taken from a human cadaver. Once the graft surgeries healed and the grafts grew, the periodontist would insert a metal implant to which the dentist would then attach a new permanent crown.

         The plaintiff opted for the recommended option using a cadaver bone to avoid the additional surgery that would be necessary to harvest her own bone for the graft. All told, the various surgeries, grafts, and other procedures were not completed until February 7, 2013, two years after the original injury. Along the way, the plaintiff suffered pain requiring strong medication (oxycodone), bruising and black eyes as a result of the procedures, and mental distress. She was required to take antibiotics and steroids. As an ongoing matter into the indefinite future, because the implant is prone

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to infection, it requires special, continuing cleaning by the plaintiff.

         The plaintiff sued Wendy’s Old Fashioned Hamburgers of New York, Inc. (Wendy’s), which operated the restaurant from which the plaintiff bought the hamburger, JBS Souderton, Inc. (JBS), which produced and supplied the hamburger according to Wendy’s specifications, and Willow Run Foods, Inc., which distributed the hamburger to Wendy’s. By the time of trial, only Wendy’s and JBS remained in the case, and the only claims against them were for breach of the implied warranty of merchantability, G. L. c. 106, � 2-314, and violation of G. L. c. 93A.[6]

          The breach of warranty claim went to trial in 2016, with the judge reserving the c. 93A claim for herself. We recite the trial proceedings in detail given that they must be considered in their entirety. During his opening statement, plaintiff’s counsel began by stating that the case was about "safety rules that protect all of us" from dangerous food products "only if jurors like yourselves enforce those rules in Court. You decide what is safe in our community." He then identified the two defendants, noting that JBS is one of the leading meat processors in the world. Counsel proceeded to outline the multistep production process for hamburger meat, noting that bone can get through if it is smaller than the size of the final grind plate. He then stressed that, although JBS had X-ray technology available to it to examine the final grind for bone, it did not use that technology. Counsel outlined the facts we set out above concerning the plaintiff’s injury and treatment, which he then followed by remarking on the fact that the plaintiff received no response from Wendy’s when she called to report what had happened. He next described the defendants’ policies of providing safe food to their customers, and stated that these "safety rules" are to apply to all consumers. He then focused on the question of a consumer’s reasonable expectations, noting that consumers do not expect to find bone in their hamburger (unlike when one eats, for example, a chicken wing), and that hamburgers will not be inspected by the consumer before being eaten. Counsel concluded by giving some biographical information about his client, noting that she had no prior history of serious dental problems, and outlining the course of the medical procedures she underwent. No objection was lodged to any aspect of the opening.

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          Wendy’s and JBS were represented by the same counsel, which obviously constrained any defense premised on one blaming the other. Defense counsel’s opening began with the importance of the right to trial by jury. He then described Wendy’s as having been founded in 1969 by Dave Thomas. He described JBS as "one of the leading meat processors in the whole world." Counsel described in detail the hamburger production process and the many steps that are taken to ensure that the meat is safe, biologically, chemically, and physically. He noted that, by the end of the process, the meat is produced to Wendy’s specifications in a seventy-five/twenty-five meat/fat ratio, and put through a final grind plate of three thirty-seconds of an inch (3/32"). Counsel noted that the Wendy’s grind specification was much smaller than that specified by the United States Food and Drug Administration (FDA) (one centimeter) as safe for human consumption, and also much smaller than the industry standard (one-eighth of an inch). Counsel pointed out that meat could not be ground any finer and still be made into hamburger. He acknowledged that pieces of gristle and bone might get through the final grind if they were less than 3/32", but "that is way past what is safe under our FDA regulations." He then described the many quality assurance measures in place at JBS and at Wendy’s. Finally, defense counsel did not dispute that the plaintiff broke her tooth after biting into a Wendy’s hamburger and stated, "[T]here’s no doubt that there was a small, small tiny fragment of a bone" in the hamburger. But he stressed that the plaintiff’s tooth 14 was compromised before the injury and raised a question about the filling material her dentist used in 2006 (several years earlier) to treat it. Counsel ended on the theme that there was nothing more the defendants could do and still sell hamburgers in the United States, and that the defendants had met the reasonable expectations of their customers.

          The trial was not long; testimony required only two one-half days of trial, and all the trial exhibits came in by agreement. The plaintiff first called Wendy’s district manager, who testified that Wendy’s strove to serve safe food and not to put its customers at risk. He confirmed that "food safety is the number one priority at Wendy’s and to our customers," that this policy pertains to all customers, and that "Wendy’s customers expect to be served safe food." The witness confirmed that Wendy’s does not expect to serve hamburgers with bone in them and does not expect to receive hamburger meat containing bone from JBS. The witness acknowledged

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that Wendy’s does not warn its customers that there might be bone in its products. Plaintiff’s counsel then established through the witness that utensils are not usually provided with a hamburger, that it is served between two pieces of soft bread, and that it is intended to be picked up by the consumer’s hands and eaten. Wendy’s does not expect its customers to cut the hamburger into tiny pieces to inspect it before consumption.

          On cross-examination, defense counsel asked the witness to describe Wendy’s corporate history, eliciting that the company was started in 1969 and that it "kind of centers around just, you know, do the right thing and just be nice." The company has roughly 6,500 restaurants internationally. Counsel then elicited a description of the training that Wendy’s employees receive and the "extensive testing" of its products. The witness testified that JBS supplies the hamburger to Wendy’s specification that it be ground to 3/32" and "that this was the -- smallest grind, I believe, that we could get and still meet customer’s expectations of what a hamburger should taste like." Over objection, defense counsel was permitted to ask whether "any restaurant in the United States of America ... pledges absolute perfection in anything," and the witness replied that perfection is not possible because of the nature of the product. The witness continued, if "you’re eating an animal, there’s always the potential for bone, cartilage, a different a -- a tendon perhaps," noting that he himself had had that experience. Next, the witness testified that the Wendy’s restaurant in Medford sells 160 pounds of beef daily, the equivalent of 800-900 hamburgers of the size the plaintiff ordered. The witness knew of not a single incident during his time with the company of a customer being injured by a piece of bone or cartilage getting through the final 3/32" grind of the hamburger.

         The plaintiff next called her treating dentist, who testified to the medical course we set out above. On cross-examination, defense counsel elicited testimony that the plaintiff had a history of grinding her teeth at night, of a crack in tooth 14 dating back to 2004, and of fillings to tooth 14 in 2006, which the dentist contemporaneously noted may require a future crown. Defense counsel attempted to establish that the composite resin filling material used by the dentist was inferior to the alternate available material, amalgam. Defense counsel also conducted a detailed examination into the plaintiff’s fillings in other teeth. He concluded his examination by noting that the dentist’s records did not reflect that the plaintiff

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had ongoing problems with her dental implant. After redirect, on further cross-examination, defense counsel elicited testimony that it was not uncommon for people to break teeth on "small, small pieces of -- of bone even in ... sausage and hamburger and the like."

         The plaintiff next called the training and development manager of JBS, who had previously been the company’s technical services manager.[7] Without objection, counsel elicited that JBS was one of the leading beef processors in the world, selling to customers around the world. This witness confirmed that JBS’s mission was to provide safe food to all of its customers, even those whose teeth may be compromised. The witness acknowledged two important points: first, that a piece of bone could have gotten into the hamburger if it was small enough to pass through the holes in the final grind plate; and second, that although the hamburger was put through the metal detection process after the final grind, the hamburger was not put through an X-ray to inspect for bone, even though it would have been practical to do so and a more effective measure of protection. Counsel also established that bits of bone could have been missed on an upstream X-ray earlier in the production process. On cross-examination, defense counsel elicited detailed testimony about the numerous safety measures taken by JBS at multiple steps in the production process and that Wendy’s specifications for their hamburgers far exceeded government and industry standards. The witness testified that bone less than one centimeter in size was not a food safety hazard and, therefore, there was no need to X-ray the meat after it had passed through the final grind. Finally, the witness testified that JBS sold over fifteen million pounds of hamburger to Wendy’s in the thirteen months preceding January 2011 and there was not a single complaint of anyone getting injured by a piece of bone during that period.

          After the JBS witness’s testimony, a sidebar took place to discuss plaintiff’s counsel’s desire to introduce Wendy’s third-party complaint against JBS as a judicial admission that JBS was responsible for the piece of bone in the plaintiff’s hamburger. The judge denied the request, noting:

"Well, this particular fact is, as I understand it, been admitted and testified to by virtually every witness so far, which was that there was a foreign object, a bone, less than the size of

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three thirt -- two [sic] thirty seconds that was in that hamburger. It was actually marked into evidence. I think it’s Exhibit 3. The Jury has seen it. So, there has already been an admission by defendants and their witnesses that it was a bone or bone like matter."

         The plaintiff was the last witness to testify, and we will not repeat her testimony about her injury and subsequent treatment as we have set it out above. In addition to that testimony, the plaintiff testified to her expectations and habits as a consumer and how they differed depending on the particular food involved. For example, she ate foods known to contain pits or bones differently than a hamburger, which she did not expect to contain bone. Wendy’s provided no warning that there might be bone in her hamburger, and she did not inspect the hamburger before eating it. She testified to the period when she had to live without tooth 14 and described it as "difficult." She noted that she continued to be distrustful because she "trusted that [she] was going to be served something that wouldn’t physically harm me." She testified that she felt betrayed because "everyone else [at Wendy’s and JBS] knew [that] there was the possibility of the bone being in the burger but me." She called this "inside information." Cross-examination of the plaintiff focused on the course of her dental treatment and established that she did not know for certain which of the two pieces of foreign matter that were in her hamburger (and marked as exhibits) was the one that caused the injury to her tooth.

          The plaintiff then rested, and the defendants’ motion for a directed verdict was denied. The defendants rested without calling any witnesses and renewed their directed verdict motion, which was again denied. The judge then conducted a charging conference, the details of which are not pertinent here.

         We now turn to the closing arguments, which are the central focus of this appeal. The defendants’ counsel began his closing in a manner similar to his opening, by focusing on historical context. This time, however, counsel homed in on the jury’s role of "speak[ing] the truth." Counsel then drew the jury’s attention to exhibits 3.1 and 3.2, one of which was gristle and the other bone, both about 2.2 millimeters (less than 3/32") in size. He noted that both were hard substances and that either might cause a tooth to ...

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