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Greenup v. Roosevelt

Court of Appeals of Louisiana, Fourth Circuit

March 20, 2019

YOLANDA GREENUP
v.
HARGETT ROOSEVELT, INDIVIDUALLY AND ON BEHALF OF BLACK PEARL RESTAURANT

          APPEAL 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

          Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase

          Daniel L. Dysart, Judge.

         Yolanda 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.

         BACKGROUND:

         Yolanda 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.

         Ms. 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.

         Ms. 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[1] and told to follow-up with her regular physician, if necessary.

         Ms. 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 intoxication, unspecified.

         Ms. 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.[2] 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.

         A bench 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.

         D ...


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