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Cline v. Publix Supermarkets, Inc.

United States District Court, M.D. Tennessee, Nashville Division

January 6, 2017

GARY CLINE, individually and as Next Friend and Probate Representative for the Estate of Derek Landon Wood, Plaintiff,
v.
PUBLIX SUPERMARKETS, INC. and PUBLIX TENNESSEE, LLC, Defendants.

          MEMORANDUM

          ALETA A. TRAUGER United States District Judge.

         Pending before the court is a Motion for Partial Summary Judgment (Docket No. 64) filed by the defendants, Publix Supermarkets, Inc. and Publix Tennessee, LLC (Collectively “Publix”), to which the plaintiff, Gary Cline, has filed a Response (Docket No. 70), and Publix has filed a Reply (Docket No. 74). For the reasons discussed herein, the motion will be granted in part and denied in part.

         BACKGROUND AND PROCEDURAL HISTORY

         This action was filed on March 20, 2015, seeking to hold Publix liable for the death of eleven-year-old Derek Landon Wood (“Landon”). (Docket No. 1.) Landon's death resulted from an anaphylactic allergic reaction to eating pecans (a type of tree nut) contained in an unlabeled chocolate chew cookie purchased by his mother, Sabrina Cline, from the full service bakery counter of Publix Store No. 01425 in Clarksville, Tennessee on June 3, 2014 (the “Cookie”). The Complaint, which names as plaintiffs Gary Cline, Sabrina Cline, and Stephanie Blankenship (Ms. Cline's sister and Landon's aunt), brings several claims against Publix under Tennessee law, seeking compensatory and punitive damages: strict liability, implied warranty of fitness, negligence, and violation of the Tennessee Consumer Protection Act, Tenn. Code Ann. § 47-18-104(b) (the “TCPA”). These claims are all based on allegations that Publix failed to affix a label to the Cookie stating its ingredients or to otherwise warn consumers that the Cookie contained tree nuts, a known major allergen, rendering the Cookie unreasonably dangerous. The negligence and TCPA claims are additionally based on allegations that the bakery associate who gave the Cookie to Landon's family misrepresented that it did not contain tree nuts, to which Landon was highly allergic, and that Publix failed to properly train or supervise its sales associates in responding to customer inquiries about allergens in food products. The Complaint also seeks a declaratory judgment that 1) Publix violated the federal Food Allergen Labeling and Consumer Protection Act of 2004, 21 U.S.C § 343(w) (the “FALCPA”) and 2) the cap on noneconomic damages under Tennessee law (Tenn. Code Ann. § 29-39-102) violates the Tennessee and United States Constitutions and, therefore, should not apply to this action.

         On May 26, 2015, the court granted the plaintiff's Motion to Withdraw the TCPA claim and issued an Order dismissing this claim with prejudice. (Docket Nos. 16, 17.)

         On June 2, 2016, the court granted the plaintiff's motion to voluntarily dismiss: 1) the declaratory judgment claim related to the FALCPA[1] and 2) all claims of plaintiffs Sabrina Cline and Stephanie Blankenship, removing them as parties to this action. (Docket No. 44.)

         On October 11, 2016, Publix filed a Motion for Partial Summary Judgment along with an accompanying Memorandum, seeking to dismiss: 1) the plaintiff's claims for strict liability and breach of implied warranty of fitness, on the grounds that these claims - which are based on a failure to label the Cookie or otherwise warn that it contained pecans - cannot proceed because Publix complied with the FALCPA, which did not require it to label the Cookie, and the cookie was not unreasonably dangerous or defective as sold; 2) the plaintiff's negligence claim, to the extent it also arises from the allegations that the Cookie was not labelled or was unreasonably dangerous as sold (though Publix expressly states that it does not seek to dismiss the negligence claim to the extent it arises from allegations related to conversations between Landon's family and the bakery associate who provided them with the Cookie), [2] and 3) all requests for punitive damages. (Docket Nos. 64, 65.) Publix simultaneously filed two appendices of attached exhibits. (Docket Nos. 66-67.)

         Publix specifically argues that, by dropping his claim for a declaratory judgment that Publix violated the FALCPA, the plaintiff has conceded that the FALCPA did not require Publix to label the Cookie. (Docket No. 65, p. 5.) While Publix did not file a separate Statement of Undisputed Material Facts, Publix's Memorandum references the undisputed facts that the Cookie was made from scratch at the Publix store from which it was sold, that it was available only through the store's full-service bakery counter, and that it was unpackaged and ready to eat at the time it was sold - facts that are well supported in the record. (Docket No. 66-3 (Deposition of Nicole Esposito, manager of the Publix store where the Cookie was sold), pp. 78:11-84:14; Docket No. 66-4 (Deposition of Jane Pixley, Business Development Director for Publix bakeries), p. 42:21-25.) It is further undisputed that no ingredient label was affixed to the Cookie or otherwise given to Landon's family.[3]

         The parties agree that there is a dispute of material fact as to whether the bakery associate who served Landon's family the Cookie misrepresented that the Cookie did not contain tree nuts and, accordingly, as stated above, Publix does not move for summary judgment with respect to the plaintiff's claims arising from this exchange. Publix does, however, argue that the facts as presented by the plaintiff cannot support punitive damages related to this claim. Publix specifically cites the testimony of Ms. Cline, where she states that the bakery associate responded to her inquiry about the presence of tree nuts in the Cookie and her concerns about Landon's allergy by simply stating that the Cookie was a chocolate cake cookie with a brownie texture, but she concedes that the associate did not expressly state that the Cookie had no nuts. (Docket No. 67-2 (Deposition of Sabrina Cline), pp. 225:6-230:16.)[4]

         In its motion, Publix also requests that the court reserve judgment on the plaintiff's claim for declaratory relief as to the constitutionality of Tennessee's noneconomic damages cap, because this issue is not yet ripe. (Docket Nos. 64-65.)

         On October 28, 2016, the plaintiff filed a Response in opposition, along with an appendix of attached exhibits. (Docket Nos. 70, 71.) The plaintiff denies that his withdrawal of his claim seeking a declaratory judgment that Publix violated the FALCPA is a concession that Publix was exempt from labelling the Cookie under the FALCPA (stating only that the statute is difficult to understand and has not been interpreted by caselaw involving similar factual scenarios). He, instead, argues that such an exemption would not, in any event, warrant dismissal of the plaintiff's claims. (Docket No. 71, p. 2.) The plaintiff, however, neither refutes the facts that the Cookie was made from scratch at the Publix store where it was sold, was unpackaged and ready for consumption at the time of sale, and was not offered elsewhere, nor does he reference or cite any evidence to the contrary. The plaintiff also makes no express argument that Publix was bound by the FALCPA to label the Cookie and was not exempt.

         In his Response, the plaintiff also concedes that the constitutionality of Tennessee's noneconomic damages cap is not yet ripe for determination.[5] (Docket No. 70, p. 1.)

         On November 7, 2016, Publix filed a Reply. (Docket No. 74.)

         LEGAL ...


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