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Voluntary Dismissal in Food Poisoning Case

Francesca A. Ippolito-Craven and Lisandra Guerrero | November 1, 2017

Francesca A. Ippolito-Craven and Lisandra Guerrero, of the Miami office, obtained a complete voluntary dismissal with prejudice in a food poisoning case involving a Plaintiff who claimed a series of impairments and accidents were the result of a meal she consumed at the Defendant’s restaurant. These included ruptures to both Achilles tendons which required three surgeries, and several falls wherein she injured her knee and pelvis. Francesca and Lisandra filed both a Motion for Summary Judgment and a Motion to Dismiss for Fraud on the Court.

The Motion for Summary Judgment argued the Plaintiff could not establish any breach of duty on the Defendant's part or that her alleged food poisoning and subsequent damages were caused by the meal in question. The Plaintiff could not prove the food she ate was contaminated through either direct or circumstantial evidence, or that it became contaminated as a result of the Defendant's operations.

Moreover, Francesca and Lisandra presented the affidavit of an expert witness who opined that, due to an average incubation period of 24 hours, the Plaintiff's symptoms and damages could not have been caused by the meal in question. Instead, her illness could have been caused by anything she ate in the nine days prior to the subject meal, thus leaving the jury to speculate as to causation. The Motion to Dismiss for Fraud on the Court was based on misrepresentations made by the Plaintiff during her deposition that
she never experienced any issues whatsoever with her Achilles tendons, ankles, feet, or her gait and balance. However, her medical records evidenced her testimony was false since she had multiple pre-existing health conditions in these areas. Shortly after receiving both Motions, opposing counsel called to advise he would be dismissing the case in its entirety with prejudice.

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