Jon Campisi Aug. 16, 2013, 3:58pm


A federal judge has granted a motion by chain restaurant Ruby Tuesday

seeking to exclude expert witness testimony in a case in which a Philadelphia couple claims the husband suffered severe burns and other injuries after taking a bite from a hot appetizer.

In an Aug. 12 memorandum and order, U.S. District Judge Cynthia Rufe, sitting in the Eastern District of Pennsylvania, gave the defense a partial win in agreeing to exclude the testimony of Barry Parsons, a food safety specialist retained by the lawyers for the plaintiffs, Stafford Freeman, III, and his wife, Nicole.

The record shows that Parsons had visited a different Ruby Tuesday location from where the alleged incident occurred and measured the temperature of a queso dip appetizer at that restaurant as being 166 degrees.

The Freeman’s are suing the Ruby Tuesday restaurant at 650 Cowpath Road in Lansdale, Montgomery County over claims that Stafford Freeman suffered severe burns to his mouth after taking a bite of the beef queso dip appetizer while the couple was dining at the restaurant on July 21, 2010.

The plaintiff alleges that after burning his mouth on the appetizer, he flailed backward, causing hot dip to burn his forearm.

Stafford Freeman further claims that he sustained injuries to his shoulder, neck and back after jerking backward in his seat.

The lawsuit was originally filed at Philadelphia’s Common Pleas Court but later removed by the defense to the Eastern District of Pennsylvania.

The record shows that Parsons, the plaintiffs’ witness, concluded that by serving the dip at 165 or 166 degrees, as the restaurant did, rather than at 135 degrees, Ruby Tuesday created a dangerous condition.

Defense attorneys sought to exclude Parsons’ testimony on the grounds that his methodology isn’t reliable; his opinions and conclusions are not reliable, relevant or admissible; he seeks to offer inadmissible legal opinions; and his testimony may confuse the issues and mislead the jury.

Rufe sided with the defense at this stage of the litigation, determining that Parsons’ opinion is unreliable because it does not have a discernible methodological basis, and there is a poor fit between Parsons’ opinion and the facts and data upon which it is based.

“Beef queso dip is a mixture of ground beef and melted cheese,” Rufe wrote in her memorandum. “Mr. Parsons’s report says nothing about the temperature at which the cheese used will melt, nor about the temperature at which melted cheese (or beef queso dip) will burn the mouth and cause second degree burns to skin. Mr. Parson’s report only discusses the temperature and length of exposure to hot water that will cause burns to the skin.”

Rufe wrote that Parsons concludes, “without reference to any supporting evidence,” that hot cheese and hot water will affect the skin similarly when they are heated to similar temperatures.

“There is no indication that Mr. Parsons has the expertise to discuss the relationship between the thermal properties of water and beef queso dip, and his report does not include such a discussion,” Rufe wrote.

The judge, referring to Parsons’ opinion that Ruby Tuesday had a legal duty to train its employees to allow the dip to cool to a lower temperature before serving it to patrons, wrote that while opinions about best practices for restaurants may be within Parsons’ area of expertise, legal duties of restaurants are not.

“Accordingly, the Court, in its role as gatekeeper, cannot permit the jury to hear Mr. Parsons’s opinion regarding whether Ruby Tuesday’s practice of serving beef queso dip at 165 degrees is unreasonably dangerous or is in violation of its duty of care and/or duty to warn,” Rufe wrote.

The plaintiffs did secure a partial victor in Rufe’s denying the defendant’s motion for summary judgment.

In seeking summary judgment, defense lawyers argued that the Freeman’s could not, as a matter of law, establish negligence because the danger was obvious.

A restaurant customer must expect that a hot appetizer would be served hot, the defense argued.

Rufe acknowledged Pennsylvania case law with regard to hot beverages cited by the defense, but the judge said that because beef queso dip is not a drink, whether the danger of spilled cheese dip would have been similarly “open and obvious to a reasonable person is a question of fact for the jury.”

“If the jury finds that the beef queso dip posed an unexpected and not readily-discovered danger to Plaintiff, it will need to determine whether serving beef queso dip at an unexpectedly hot temperature, without a warning, was unreasonable,” Rufe wrote. “Accordingly, the Court will deny the motion for summary judgment.”

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