When Proofing Your Case, You’re Going to Knead to Get Around Hearsay
In Sergei Kovalev v. Lidl US, LLC, et al., 2024 WL 4642982 (E.D. Pa. Oct. 31, 2024), the pro se Plaintiff purchased several loaves of bread from a Philadelphia based Lidl supermarket in March and June of 2021. Those loaves of bread were manufactured by H&S Bakery, Inc., another named defendant, exclusively for Lidl.
After consuming the bread in question, the Plaintiff became ill and is alleged to have discovered mold and / or suspicious substances in the bread. The Plaintiff alleged that he suffered severe food poisoning symptoms which lead to emotional distress and psychological damage due to defectively manufactured bread at H&S Bakery and distributed by Lidl.
After several claims were dismissed, the Defendants filed a Motion for Summary Judgment as to the remaining claims sounding in strict liability, breach of implied warranty of merchantability, negligence, and negligent infliction of emotional distress.
In response, the pro se Plaintiff opposed the Defendants’ motion by submitting the following evidence:
- Photographic evidence;
- Plaintiff’s testimony;
- The original defective bread that was in the Plaintiff’s freezer since its purchase;
- A list of other complaints about the quality of the bread manufactured by Defendant, H&S Bakery, Inc.;
- A list of consumer complaint responses created by Defendant, H&S Bakery, Inc.;
- Mold testing contained in the “Tentamus North American Analytical Report;” and,
- Published articles outlining the health effects of consuming mild.
The Court, in relying on Fed. R. Civ. P. 56(e), stated that, “at the summary judgment stage, a court is constrained to considering only evidence that may be admissible at trial.” The Court continued on in its analysis providing that,
[E]vidence is admissible at trial if it is relevant and not otherwise excluded under the Federal Rule of Evidence. To be relevant, the evidence must have ‘any tendency to make a fact more or less probably than it would be without the evidence and the fact is of consequence in determining the action.’
See Fed. R. Civ. P. 401. The Federal Rules exclude certain evidence as automatically irrelevant; the most common of them being hearsay.
Here, and as the Court is constrained to consider only evidence that would be admissible at trial, all but the photographs, Plaintiff’s own testimony, and the original defective bread, were disregarded as inadmissible hearsay without exceptions.
Applying the new limited evidence, the Court found that it was insufficient to support the Plaintiff’s causes of action. The pro se Plaintiff both failed to properly test the breads in question to determine what the foregoing substances were and to rule out any other cause of the alleged mold (i.e., “[b]read gets moldy for many reasons, many of which have nothing to do with the bakers or the stores that sell the product.”), and failed to prove any damages as a result of ingesting the alleged contaminated bread with medical testimony / records.
Therefore, the Court found that the Plaintiff’s claims against the Defendants were purely speculative without any “causal connection” and granted the Defendants’ Motion for Summary Judgment.
In reading the Court’s decision in Sergei Kovalev v. Lidl US, LLC, et al., one is struck by the importance of evolving a case throughout the course and scope of discovery. Simple measures such as retaining experts, both medical and liability, are of crucial importance to bolster opinions which may seem obvious. So, stop loafing around and prep. your case!
The Kovalev decision can be found here.
For additional questions, please contact Conrad James Benedetto, Esq. and / or Caroline B. Zook, Esq.
This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.
