Opinion
No. 119818.
10-21-2015
Mark OCHOA, Claimant, v. The STATE of New York, Defendant.
David Segal, Esq. by Devon M. Wilt, Esq., for Claimant. Eric T. Schneiderman, Attorney General by Edward J. Curtis, Jr., AAG, for Defendant.
David Segal, Esq. by Devon M. Wilt, Esq., for Claimant.
Eric T. Schneiderman, Attorney General by Edward J. Curtis, Jr., AAG, for Defendant.
ALAN C. MARIN, J.
This is the decision following the liability trial of the claim of Mark Ochoa that he suffered food poisoning at Queensboro Correctional Facility.
On March 29, 2011, Mr. Ochoa had lunch in the mess hall, which was apparently his first meal of the day—claimant indicated that he rarely ate breakfast, which is served from 6:30 to 7 a.m. and requires him to walk down “like seven flights” of stairs (tr 10) .
References to trial transcripts are indicated by (tr).
Ochoa's lunch that day was hot dogs (with bread) and beans; he drank water and did not take any dessert. The servers, who were inmates, wore gloves, “grab [the hot dogs] with their hands and they put it on your tray” (tr 15). Ochoa recalled that neither the hot dogs nor beans tasted funny, although he said that the hot dogs were served at what seemed like room temperature—“It wasn't really hot” (tr 16).
Claimant felt fine through the afternoon and at about 4:30 or 5 p .m. went to dinner, which was rice and creamed corn “with like some herbs or something in it” (tr 17). He finished everything, explaining that not only was he hungry, he was always hungry at Queensboro CF because he did not snack on junk food. Again, he noticed no unusual taste (or smell) to his meal.
Several hours later, Ochoa recalls that he was near his bed feeling like he “was going to puke” (tr 20). He went over to the officer on duty, said he needed to see the nurse and was told to sign up for sick call, which he did. It was now about 8 or 9 p.m.
At some point, during the night claimant “threw up a couple of times” and suffered from diarrhea. He went down to sick call at 9 or 10 a.m. the next morning (March 30); “I was buckled over” (tr 22). Ochoa asked to see the doctor whom he thought was scheduled to be there, but the nurse gave him Maalox and put him down to see the doctor the next day. Claimant testified that he returned upstairs to his bunk and began to throw up “like every 30 minutes” (tr 23), and was defecating blood.
On March 31, Ochoa saw the doctor at about 7 a.m. Ochoa had to use the bathroom in the infirmary, and when the doctor became aware that there was blood in the patient's stool, immediately sent him to the hospital (the Elmhurst Hospital Center). Claimant, who said he was never sick like this in his life or had food poisoning, was hospitalized for five days.
One other witness took the stand at trial, Judy Bulaya, called by defendant. Since 2008, Ms. Bulaya has been the regional coordinator in charge of nutritional services for the Department of Corrections and Community Supervision (DOCCS). In her career with the Department, Bulaya had worked at several facilities as a food service coordinator and prior to that as a head cook. The witness earned a college degree in hotel and restaurant management and was in the private sector before being hired as the head cook at Queensboro CF.
Bulaya testified as to: 1) what is effectively a chain of custody and care, usually as to temperature, for the food products that ultimately reach a facility's mess hall; 2) a preservation and testing process; and 3) the response to possible food poisoning. Her testimony covered the procedures that were to be followed—the custom and practice. It was not specific as to Mr. Ochoa and March 29, 2011.
Ms. Bulaya explained for example that the “hot dogs would be ordered as a frozen product from an outside vendor, and they would be delivered frozen and we would store them in a freezer until we're ready to use them. And then they would be cooked in an oven or boiled, depending on which facility” (tr 38).
She indicated that refrigerated trucks were checked to be sure there were no leaks that would indicate the product was thawing. The refrigerated “boxes” on site at the DOCCS facilities had thermometers which would sound an alarm if the temperature varied from the proper level.
Ms. Bulaya then went on to explain that for every meal served at Queensboro CF, there is a process to check for food poisoning:
“What we do is for every meal served, we set aside a sample and it is held for 48 hours” (tr 45). She added that “It's actually a very big part of my inspection. I must check—visit to make sure that samples are maintained” (tr 47).
If there was an incident of food poisoning at Queensboro CF, “we would be notified ... by the Medical Department” (tr 45). Bulaya said there were no reports of food poisoning at Queensboro in March or April of 2011, or for that matter, at any time since she has been supervising Queensboro CF. As for deciding if food poisoning had occurred, “once the inmate goes to medical, they take over from there” (tr 51).
The cooks at Queensboro are a mix of outside employees and inmates; the inmates are directly supervised by a civilian cook or the head cook, if on duty. From 7 a.m. to 3 p.m., the area is supervised by a food service administrator.
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Mr. Ochoa mentioned in his testimony that when he first picked up the tray at lunch it contained water, which he patted out, and, as noted above, that the hot dogs were served at room temperature. But there was no effort to connect it to his illness. As for the gloves worn by the food servers in the mess hall, Ochoa did not state that he ever saw them without them.
Ochoa did not directly argue that res ipsa loquitur was implicated. In any event, it was not demonstrated that: what claimant described could not occur in the absence of someone's negligence and secondly, that such was caused by an agency or instrumentality within the exclusive control of DOCCS (Morejon v. Rais Constr. Co., 7 NY3d 203, 209 [2006] ). Nor did we hear any testimony offered by a witness with special knowledge or expertise that the illness could only have resulted from negligence and specified the relevant acts or omissions (see analogously, States v. Lourdes Hosp., 100 N.Y.2d 208, 214 [2003] ).
What Mark Ochoa experienced physically is not at issue, and it was a miserable experience, including vomiting and diarrhea severe enough to lead to five days at Elmhurst Hospital. But, the basic question here is what caused it. Claimant's medical records, without more, do not connect his illness to food poisoning from the mess hall.
By agreement at trial between the parties, claimant's medical records were submitted into evidence after trial. The records covered the relevant periods in March and April of 2011 for DOCCS' ambulatory health care service and the Elmhurst Hospital Center.
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The diagnosis entered in his records for March 31, 2011 was “colitis-acute.” Further down the same page is a notation that the patient has a history (“hx”) of diverticulitis (page 15 of the emergency services records from Elmhurst Hospital Center, bates-stamped page 28).
Page 3 of the April 6, 2011 hospital chart notes a history of colitis and a CT-scan showing, “extensive colitis in entire colon” (bates-stamped page 90). No evidence was presented of a connection between colitis and food poisoning (which is not mentioned in the medical records) to show that this was what he developed on March 29.
In McCrory v. State of New York, 281 A.D.2d 797, 799 (3d Dept 2001), the court did not question that the claimant-inmates at Great Meadow Correctional Facility had contracted food poisoning, but stated that since “no vehicle of transmission was ever identified ... no negligence on the part of the State could actually be proven.”
The First Department in Williams v. White Castle Sys., 4 AD3d 161, 162 (2004) upheld dismissal of the suit “in light of the absence of any nonspeculative ground to support the inference that the allegedly offending food was in fact contaminated or that the complained-of blood disorder was causally related to food poisoning (see Valenti v. Great Atl. & Pac. Tea Co., 207 A.D.2d 340 [2d Dept 1994] ).”
Mark Ochoa has failed to satisfy his burden of proving by a preponderance of the evidence that the food he consumed was contaminated (or otherwise defective) and that his complained-of illness was causally related thereto (Fulton v. State of New York, UID No.2013–015–547 [Ct Cl, Collins, J., February 5, 2013] ). In view of the foregoing, the Clerk of the Court is directed to dismiss claim No. 119818.
Let judgment be entered accordingly.