Edwards v. Panda Express, Inc.

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 DAVID EDWARDS, Case No. 2:24-cv-001029-EJY 5 Plaintiff, ORDER 6 v. 7 PANDA EXPRESS, INC., a California corporation; DOES I-XX, inclusive; ROE 8 CORPORATIONS I-X, inclusive 9 Defendants. [10] 11 I. Introduction 12 Pending before the Court is Defendant’s Motion for Summary Judgment (“MSJ”). ECF No. 13 16. In this very short MSJ there is neither a mention of the elements required to prove each cause 14 of action alleged, nor an application of law to any claim asserted. Id. In sum, Defendant argues that 15 because Plaintiff supposedly has no evidence to support causation, Defendant is entitled to judgment 16 as a matter of law. Defendant makes this argument despite medical expert testimony opining that it 17 is “[m]ore likely than not, and to a reasonable degree of medical probability, … [Plaintiff] 18 experienced acute food poisoning from eating contaminated poultry at the Panda Express at Green 19 Valley Station Casino.” Id. at 3, 4-5. Plaintiff opposes Defendant’s MSJ (ECF No. 17) arguing 20 there is circumstantial evidence sufficient to establish a question of fact regarding the cause of the 21 food poisoning at issue. Id. at 5-6. Plaintiff, like Defendant, does not address the elements of any 22 of his claims other than causation. See id., generally. 23 II. Summary Judgment Standard 24 Summary judgment is appropriately granted when the moving party shows “there is no 25 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 26 Fed. R. Civ. P. 56(a). A fact is material if it “might affect the outcome of the suit under the governing 27 law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if “the 1 The party seeking summary judgment bears the initial burden of informing the court of the 2 basis for its motion and identifying those portions of the record that demonstrate the absence of a 3 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then 4 shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of 5 material fact for trial. Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992 (9th Cir. 2018). The Court 6 views the evidence and reasonable inferences in the light most favorable to the non-moving party. 7 Zetwick v. Cnty. of Yolo, 850 F.3d 436, 440-41 (9th Cir. 2017). 8 III. Discussion 9 To establish a claim of negligence, a plaintiff must demonstrate: “(1) the defendant owed a 10 duty of care to the plaintiff; (2) the defendant breached that duty; (3) the breach was the legal cause 11 of the plaintiff’s injury; and (4) the plaintiff suffered damages.” Scialabba v. Brandise Constr. Co., [12] 921 P.2d 928, 930 (1996). To state a strict products liability claim, a plaintiff must show that “(1) 13 the product had a defect which rendered it unreasonably dangerous, (2) the defect existed at the time 14 the product left the manufacturer, and (3) the defect caused the plaintiff’s injury.” Rivera v. Philip 15 Morris, Inc., 209 P.3d 271, 275 (2009) (internal quotations omitted). 16 To ultimately prevail on a breach of express warranty claim, the plaintiff must prove: (1) the 17 existence of an express warranty (an affirmative act or promise made by the seller to the buyer which 18 relates to the goods and becomes part of the basis of the bargain that the goods shall conform to the 19 affirmation or promise); (2) affirmation of fact or promise by the seller to the buyer that relates to 20 the goods described and becomes part of the bargain; (3) the goods must conform to the description 21 by the seller; and (4) causation and damages. See Radcliff v. Amiraslanov, 381 P.3d 653 , 653 (Nev. 22 2012) (citing NRS § 104.2313) (“[e]xpress warranties may be created by an affirmation of fact that 23 relates to the goods or a description of the goods, where the information is made part of the basis of 24 the bargain”). See also Allied Fidelity Ins. Co. v. Pico, 656 P.2d 849 (1983). An implied warranty 25 claim is explained in NRS 104.2315, which states: “Where the seller at the time of contracting has 26 reason to know any particular purpose for which the goods are required and that the buyer is relying 27 on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or 1 As stated above, a review of Defendant’s MSJ demonstrates an absence of any mention, let 2 alone discussion, of questions of fact applicable to Plaintiff’s negligence, strict liability, breach of 3 express warranty, or breach of implied warranty claims except as causation is applicable to each of 4 these claims. Importantly, however, to defeat summary judgment and establish a question of fact 5 regarding causation, Plaintiff does not need to prove a material issue of fact conclusively in his favor. 6 T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). Rather, 7 Plaintiff defeats summary judgment when “the claimed factual dispute … [is] shown to require a 8 jury or judge to resolve the parties’ differing versions of the truth at trial.” Id. (internal citation 9 omitted). 10 Further, under Nevada law applicable to the case at bar, Plaintiff is not required to produce 11 scientific evidence demonstrating proximate cause in order to establish the cause of his food 12 poisoning. Wilson v. Circus Circus Hotels, 710 P.2d 77, 79 (Nev. 1985) (internal citation omitted).1 13 Circumstantial evidence is sufficient to establish causation when Plaintiff’s evidence “exclude[s] 14 other extrinsic causes of” his illness. Id. (internal citation omitted). While Defendant is entitled to 15 raise a Rule 50(a) motion for directed verdict at the conclusion of Plaintiff’s case in chief, the Nevada 16 Supreme Court decision in Wilson demonstrates that if Plaintiff is able to negate alternative theories 17 of the source of his illness, there may be “sufficient [basis] to send the case to the jury for its 18 evaluation of the evidence.” Id. at 80 . 19 Here, Defendant argues Plaintiff’s testimony, together with the testimony of his expert, is 20 insufficient to establish a question of fact regarding causation and, thus, summary judgment must be 21 granted in its favor. However, and despite Defendant’s contention to the contrary, the evidence is 22 not merely that Plaintiff became sick subsequent to eating Panda Express food. The evidence 23 Plaintiff offers and summarizes, as Defendant admits, arises from his testimony and the testimony 24 of his expert. More specifically, Plaintiff’s expert relied on timing of the illness, apparent evidence 25 of undigested chicken suggesting “upper gastrointestinal tract motility” that was “dramatically 26 slowed following ingestion of the Panda Express meal,” and that Plaintiff had eaten no other food [27] 1 after consuming the Panda Express food underlying his claims. ECF No. 16 at 3 citing expert 2 testimony at 16-3. Plaintiff’s expert further opined that “[u]nder usual circumstances, all food would 3 have cleared the stomach within” eight hours following ingestion. Id. Finally, the expert offered 4 his medical opinion regarding the pathogen that likely caused Plaintiff’s symptoms. Id. at 4. 5 Not only is this circumstantial evidence of causation, but Defendant’s arguments add to the 6 questions of fact. Indeed, Defendant’s argument demonstrates some factual confusion precluding 7 summary judgment. The selected portions of Plaintiff’s deposition attached to Defendant’s MSJ 8 were reviewed by the Court. ECF No. 16-4. The testimony provides an incomplete timeline of 9 Plaintiff’s arrival in Las Vegas, renting a vehicle, and stay at Green Valley Ranch. Id. This 10 testimony offers some evidence that would eliminate alternative theories regarding the source of 11 Plaintiff’s illness. See id. at 3-5 (Plaintiff used an antiseptic wipe to clean his rental vehicle before 12 driving it; Plaintiff did not consume alcohol; the only food Plaintiff ate before the Panda Express 13 food Plaintiff claims made him ill was breakfast at least 11 hours earlier in the day). In addition to 14 this unrefuted evidence, in its MSJ Defendant cites to Plaintiff’s deposition in which Plaintiff is 15 asked and confirms he ate breakfast at approximately 6 a.m. December 21, 2021 while at Green 16 Valley Ranch. ECF No. 16 at 4 citing ECF No. 16-4 at 6-7. Defendant also states—without 17 disputing this fact—that Plaintiff ate dinner at Panda Express at approximately 5 p.m. on December 18 22, 2021—approximately 1.5 days later. ECF No. 16 at 2 quoting Plaintiff’s Complaint (ECF No. 19 1-2) ¶¶ 14-15. Defendant then appears to set aside this assertion, and states Plaintiff ate dinner at 20 Panda Express on the same day he ate breakfast—that is, December 21, 2021. Id. at 4 citing ECF 21 No. 16-4 at 7. There appears to be no dispute that Plaintiff did not first become ill until a few hours 22 after he ate dinner at Panda Express. ECF No. 16 at 2 citing Plaintiff’s Complaint (ECF No. 1-2) ¶ 23 15. When Plaintiff’s evidence is considered together with the inconsistencies upon which 24 Defendant’s MSJ relies, the Court finds Defendant fails to carry the burden of eliminating a question 25 of material fact regarding the cause of Plaintiff’s illness. 26 The Ninth Circuit makes clear that the moving party must establish there is no genuine issue 27 of material fact and an entitlement to judgment as a matter of law. Fed. R. Civ. P. 56. When there 1 offers sufficient evidence to support (albeit not necessarily to prove) the element of the claim the 2 defendant contends cannot be proven, summary judgment is not properly granted. Celotex, 477 U.S. 3 at 323 . The evidence set forth in Defendant’s MSJ does not establish the absence of a genuine issue 4 of fact such that as a matter of law the Court can grant judgment in Defendant’s favor. A jury will 5 have to evaluate the evidence for purposes of determining in whose favor this case should be decided. 6 IV. Order 7 Accordingly, IT IS HEREBY ORDERED that Defendant Panda Express’ Motion for 8 Summary Judgment (ECF No. 16) is DENIED. 9 IT IS FURTHER ORDERED that the parties must submit a proposed joint pretrial order no 10 later than September 30, 2025. 11 Dated this 20th day of August, 2025. [13] ELAYNA J. YOUCHAH 14 UNITED STATES MAGISTRATE JUDGE