FROM FIRST CITY COURT OF NEW ORLEANS NO. 2016-05519, SECTION
"A" Honorable Monique G. Morial, Judge
LOBRANO, J., CONCURS IN THE RESULT Patrick B. Sanders SANDERS
AND FORD, L.L.C. COUNSEL FOR PLAINTIFF/APPELLANT
Alexandre E. Bonin R. Christian Bonin Jean-Marc V. Bonin
BONIN LAW FIRM COUNSEL FOR DEFENDANTS/APPELLEES
composed of Judge Daniel L. Dysart, Judge Joy Cossich
Lobrano, Judge Tiffany G. Chase
L. Dysart, Judge.
Greenup appeals a judgment of the trial court involuntarily
dismissing, with prejudice, her lawsuit against defendants,
Hargett Roosevelt, individually, and on behalf of Black Pearl
Restaurant. For the reasons that follow, we affirm.
Greenup purchased a meal consisting of fried catfish,
macaroni and cheese, potato salad and cornbread from Black
Pearl Restaurant at approximately noon on July 1, 2016. Ms.
Greenup returned to work with her meal and began to consume
it between 12:15 and 12:20 p.m. She testified that after
eating about three bites of the potato salad, she decided
that it tasted "weird" and threw the remainder of
the lunch away.
Greenup first testified that she left work early because of
stomach pains, but that she did not experience vomiting and
diarrhea until later that night. On cross-examination, she
testified that the vomiting and diarrhea began before she
left work between 4 and 5 p.m. She also admitted on
cross-examination that she had consumed a turkey sandwich at
approximately 6 p.m. on June 30, 2016, and a chicken breast
with a meal on June 29, 2016.
Greenup attempted to treat herself with Pepto-Bismol, but
when the symptoms continued, she went to the Touro Infirmary
emergency room on July 3, 2016. She reported to the emergency
room doctor that her pain began two days earlier after eating
potato salad. She complained of pain in her stomach, vomiting
three times a day for two days, and diarrhea five or six
times a day for one day. She gave a history of fibromyalgia,
Hepatitis C and respiratory issues. The Touro records
indicate that Ms. Greenup was administered medications for
nausea and inflammation, and blood was drawn. All of her lab
results were normal. She was discharged with prescriptions
for Toradol and Zofran and told to follow-up with her regular
physician, if necessary.
Greenup saw Dr. Rachel Oreck on July 5, 2016. She gave a
history of having anxiety disorder, depression, asthma and
fibromyalgia. Ms. Greenup explained that she had eaten potato
salad Friday (July 1), and started having stomach pains,
diarrhea and vomiting thereafter. She claimed to have had no
solid food since Friday, only water, soup and fruit. Dr.
Oreck discharged Ms. Greenup after giving her an injection
for nausea. Her diagnosis was bacterial foodborne
Greenup did not see another physician until February 21,
2017, when she visited Dr. William W. Alden, on the
recommendation of her counsel. She complained of severe pain
in the joints of her spine and upper and lower extremities,
and pain upon urination. The doctor noted that she appeared
to also have conjunctivitis. Dr. Alden concluded that Ms.
Greenup had salmonella induced Reiter's syndrome based on
her reported history, complaints, and physical
findings. His findings were based strictly on the
history given to him by Ms. Greenup of having eaten allegedly
tainted potato salad on July 1, 2016. Dr. Alden opined that
more probably than not, with a reasonable degree of medical
certainty, Ms. Greenup's condition was related to the
ingestion of food tainted with salmonella, which she had
purchased from Black Pearl Restaurant.
trial was held on October 30, 2017. At the close of the
plaintiff's case, counsel for the defendants moved for an
involuntary dismissal pursuant to La. Code Civ. Proc. art.
1672 B. The trial court granted the motion, dismissing
plaintiff's claims, with prejudice. This appeal follows.