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11/07/88 Eugene Myre, Sr., v. the Kroger Company

November 7, 1988

EUGENE MYRE, SR., PLAINTIFF-APPELLANT

v.

THE KROGER COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

530 N.E.2d 1122, 176 Ill. App. 3d 160, 125 Ill. Dec. 713 1988.IL.1617

Appeal from the Circuit Court of Cook County; the Hon. Cornelius F. Dore, Judge, presiding.

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The plaintiff, Eugene Myre, Sr., sued the defendant, Kroger Company, to recover damages for injuries sustained when he ate pork rinds that were allegedly tainted with oxalic acid, which he had purchased at the defendant's store. Following a jury trial in the circuit court of Cook County, a verdict was returned for the defendant. Plaintiff now brings this appeal.

On May 10, 1978, the plaintiff and his wife went grocery shopping at a Kroger grocery store in Peoria, Illinois, where they purchased six bags of Country Oven pork rinds. Country Oven is the brand name for Kroger's own products. The pork rinds are manufactured and packaged by Rudolph Foods, then distributed to the Kroger stores. When the plaintiff arrived home, he opened one of the bags of pork rinds and began eating them. He ate four to six pork rinds without noticing anything unusual. When he put the seventh in his mouth, however, he felt a burning sensation. He spit the pork rinds out and noticed that his mouth was full of blood. His tongue continued bleeding, so he had his wife take him to the Methodist Hospital emergency room.

The emergency room physician testified that the plaintiff had a mucosal burn on the left side of his tongue approximately one by two centimeters. He did not see any other burns in the plaintiff's mouth. The doctor testified that, in his opinion, the burn on the plaintiff's tongue was caused by a corrosive substance, but he never tested to determine what that substance might have been.

The plaintiff's wife, Linda, testified that she brought the opened bag of pork rinds to the emergency room and gave some of the rinds to the doctor and to a police officer who had been called to fill out a report of the incident. Neither remembered what happened to the pork rinds that Linda Myre gave them. Mrs. Myre brought the rest of the opened bag home and put it in a Tupperware container. The rinds that the plaintiff spit out were also collected and put in a second Tupperware container.

The next day, May 11, 1978, Mrs. Myre called the Peoria City-County health department and reported the incident. George Hausam, registered sanitarian for the health department, testified that on May 12, 1978, he went to the Kroger store where the Myres purchased the pork rinds and reported the complaint to the store manager. Hausam and the store manager then removed the remaining pork rinds from the shelves. Hausam stated that the health department never tested the pork rinds. He testified that the complaint was referred to the Food and Drug Administration and that he never heard anything further regarding the complaint.

Plaintiff called three witnesses in its case in chief as adverse witnesses. The first was Charles Jenneman, the sales manager of the Kroger bakery in St. Louis. Jenneman testified that the store manager of the Peoria Kroger's telephoned him and informed him that a customer had complained about their pork rinds. Jenneman then drove to Peoria to investigate plaintiff's complaint. Jenneman testified that Myre gave him some of the pork rinds and told him that the pork rinds were hot. Jenneman tasted the rinds while the plaintiff was watching and experienced no ill effects. The plaintiff stated that he remembered giving the pork rinds to Jenneman, but he did not recall Jenneman eating them in front of him. Jenneman then went to the Peoria Kroger's store and bought a bag of pork rinds that had the same code number as the allegedly contaminated pork rinds. He sampled these pork rinds and again noticed nothing unusual.

Jenneman returned to St. Louis with the pork rinds that Myre had given him. He testified that he reported the incident to his boss, Russell Jaeger, who also tasted the pork rinds without experiencing any ill effects. Jenneman's secretary mailed the pork rinds to David Colwell, the product manager of the Kroger bakery in Columbus, Ohio. Jenneman stated that either he or Jaeger gave the pork rinds to his secretary to mail. Jenneman also testified that he did not know if the St. Louis quality control department had filled out a report regarding the suspected contamination.

David Colwell was the next adverse witness that the plaintiff called. Colwell testified that he never received the package of pork rinds that Jenneman's secretary mailed. He also checked the Columbus plant's quality assurance department, but they had no record of receiving the pork rinds. He did not know what happened to the pork rinds that had been mailed to him, and he was unaware of any test results.

The third adverse witness was Robert Meyer, the vice-president of production for Rudolph Foods. Meyer testified that Rudolph Foods manufactured pork rinds, which are distributed under the Rudolph name and also under other brand names, such as Country Oven. The Rudolph plant packaged approximately 130,000 packages of pork rinds a day, or 30 to 40 million a year. Meyer stated that the cleaning products which Rudolph used to clean its fryers were alkaline and that Rudolph had never used acid in its cleaning process. ...


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