A picture may be worth a thousand words, but that doesn’t make the camera an expert witness. Product liability actions usually require expert testimony to prove defect and causation. Pictures, like other documents, can be central to an expert’s opinion on those points. But as a plaintiff in the Eastern District of Pennsylvania recently learned, pictures alone are insufficient. Defect and causation still require an expert’s testimony — even in cases involving products as simple as a loaf of bread.
In Kovalev v. Lidl US, LLC, 2024 WL 4642982 (E.D. Pa. Oct. 31, 2024), the plaintiff alleged that he became ill after consuming bread sold and/or baked by the defendants. He claimed to have bought eight loaves initially and experienced abdominal pain and difficulty breathing after spending two days eating the first loaf. He claimed to have thereafter discovered that the loaf was “extensively contaminated with dangerous disease-causing toxic mold.” He took pictures. Later, the plaintiff ate from a second loaf and developed nausea, vomiting, abdominal pain/cramps, general malaise, and respiratory issues “for days.” Once again, he allegedly inspected the bread after eating it and “discovered various-colored mold.” And once again, he took pictures. (As an aside, if we became ill after eating a loaf of bread and then discovered “extensive” mold on it, we would spend the foreseeable future carefully checking all our bread for mold before digging in. We might do so simply because we have read this case. But we digress.) Three months later, the plaintiff purchased four more loaves of bread from another of defendants’ stores. He claimed that while eating that bread he discovered “a large piece of black substance” inside it. Once again, he took pictures. Because he did not know what the substance was or whether he had consumed part of it, he claimed to be “severely traumatized” and afraid of developing future “cancer or damage to his organs,” “suffer[ing] a physical impact,” and losing his “enjoyment of life.”
After the defendants’ motion to dismiss was granted in part, the plaintiff was left with causes of action for strict liability, breach of the implied warranty of merchantability, negligence, and negligent infliction of emotional distress. Defendants moved for summary judgment on those claims. After excluding most of the plaintiff’s opposing evidence as inadmissible hearsay or evidence of subsequent remedial measures, the court considered only the photographs of the bread, the plaintiff’s own testimony, and samples of the bread the plaintiff had kept in his freezer. Notably, the plaintiff did not proffer any expert testimony.
Although the plaintiff’s strict liability claim encompassed design defect, manufacturing defect, and failure to warn theories, each failed for largely the same reasons. With respect to the alleged mold, the court noted that it could have grown while the bread was in the plaintiff’s possession. Bread gets moldy for various reasons, many of which have nothing to do with the baker or the store. Regarding the black substance, its identity remained unknown. It could have been something unobjectionable, such as a speck of burnt bread or a stray grain. Plaintiff’s pictures, testimony, and frozen bread were insufficient by themselves — without expert testimony — to create a jury question as to whether the mold or black substance represented a defect. As the court noted, “mere photographic evidence . . . does not prove that the bread was sold in a defective condition.”
The plaintiff’s lack of expert testimony also undermined his causation argument and, thus, each of his causes of action. Plaintiff relied on sales receipts, photographs, and the temporal relationship between the time he allegedly consumed the bread and the time he started feeling sick. But, relying on precedent holding that a temporal relationship is insufficient to prove causation in a food-borne illness case, the court deemed the evidence insufficient to create a jury question. The photographs and sales receipt failed to show that the plaintiff’s alleged illnesses were not a result of a virus or another food he consumed. What he needed was expert evidence, and he had none.
The plaintiff had another problem regarding his alleged psychological injuries — he had alleged the same injuries almost verbatim in several other lawsuits. The court thus questioned whether a jury could separate the injuries allegedly stemming from this case from those in his other cases. Without a medical diagnosis, “no layman could, except by guessing, diagnose the causal connection between Plaintiff’s alleged consumption of the bread and his alleged injuries.” Thus, absent expert testimony, the plaintiff’s claims failed for lack of causation.
Even in cases involving a product as familiar as groceries, a plaintiff must usually offer expert testimony to establish defect and causation. Even if lay evidence — photographs, for example — can show that bread was moldy or contained a black substance, questions such as whether the mold or black substance represent defects in the bread or caused any symptoms require the sort of “scientific, technical, or other specialized knowledge” that expert witnesses provide. As in Kovalev, plaintiffs who fail to bake expert evidence into their case may find the court slicing it up.
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