The opinion of the court was delivered by: Michael H. Dolinger, United States Magistrate Judge
Plaintiff Monserrate Luna has sued American Airlines ("American") and LSG Sky Chefs ("Sky Chefs") for physical, emotional and economic injuries that she allegedly suffered as a result of the presence of some foreign matter in a chicken dinner that she was served while flying from New York to her home in Puerto Rico. In her verified complaint she alleges that the dish contained unspecified "insects" (Compl. ¶ Tenth), although in her deposition testimony she claimed that the foreign matter was a piece of a lizard. She asserts claims for negligence, breach of implied warranty and breach of an implied contract. Defendants in turn have impleaded Overhill Farms, Inc. ("Overhill"), which allegedly supplied the meal, in frozen form, to the defendants.
At the conclusion of discovery, the parties filed three summary-judgment motions. Plaintiff seeks summary judgment on liability. Defendants seek summary judgment dismissing the complaint and, alternatively, holding that they are entitled to indemnification by Overhill. In its turn, Overhill seeks summary judgment dismissing defendants' indemnification claims and, by extension, plaintiff's claims. For the reasons that follow, we deny the motions of plaintiff and Overhill and grant in part the motion of the defendants.
The Evidentiary Record Concerning the Incident and its Aftermath
On July 20, 2003, plaintiff and her infant son were passengers on American Airlines flight # 1639, traveling from New York City to Puerto Rico. (Dep. of Monserrate Luna, Sept. 9, 2004 [Pl.'s Dep.], 18-19). While en route the passengers were offered a choice of two meals, and plaintiff selected a chicken dinner. (Id. at 26, 28).
She testified that the meal consisted solely of small cut-up pieces of chicken and a portion of string beans. (Id. at 28-29, 31-33). Testimony by witnesses for Sky Chefs and Overhill, the food supplier, reflects that the chicken dinner served on this flight also included rice, red and green peppers, and black pepper, as well as peas and carrots. (Dep. of Brian Farinha, June 10, 2005, 44, 45, 63; Dep. of James Rudis, June 10, 2005, 60, 66, 67, 69).
According to Ms. Luna, as she was eating the chicken, she put a piece in her mouth and found that she could not chew or swallow it, and she instead spat it out. (Pl.'s Dep. at 30-31). Her 5-year-old son said that the piece looked like a small animal. (Id. at 31). According to plaintiff, when she looked at it, it did resemble a piece of a lizard, of a type that is common in Puerto Rico. (Id. at 31-32). A post-flight report by a cabin crew member, however, states that plaintiff showed the crew only a feather and complained that she had found it in her meal. (Defs.' R. 56 Statement, Ex. E).
After spitting out the item, plaintiff placed it in a napkin and brought it back to a cabin crew member (Pl.'s Dep. at 32), who said that it was a feather, even though Ms. Luna disagreed. (Id. at 34). She reports that the crew member with whom she spoke offered to wrap the item if she wished to retain it for purposes of making a complaint. (Id. at 35). She declined the offer, however, and the crew apparently eventually disposed of the item. (Id. at 35, 45-46. See also Defs.' Opp'n to Overhill's Summ. J. Mot., 8-9).
Plaintiff claims that she felt shocked and upset by this event, and that she eventually went to the airplane restroom in an effort to vomit "because I knew that I had eaten something gross." (Pl.'s Dep. at 39). She says that she vomited "a little bit" in the restroom, but did not indicate that she had regurgitated anything of note. (Id. at 35; Dep. of Monserrate Luna, June 6, 2005 [2d Pl.'s Dep.], 35-36).
Ms. Luna testified that she soon noticed a rash on her hands and other parts of her anatomy, in the form of red spots. (Pl.'s Dep. at 34, 36, 38, 47-48; 2d Pl.'s Dep. at 32-33). She mentioned this to the cabin crew, who offered her an allergy pill, apparently Benadryl, which she did not take. (Pl.'s Dep. at 34, 36-37). She also says that she was "very nervous" (id. at 32) and that her blood pressure "went down". (Id. at 38).
When plaintiff complained to the cabin crew of feeling ill, the crew called ahead for a paramedic to meet the plane in San Juan. (Id. at 37-38). According to plaintiff, the medical personnel who saw her at the airport said that her blood pressure was low and that she had "a little bit" of an allergic reaction. (Id. at 41-42). They gave her a Benadryl, which she took. (Id. at 46).
Some time after arriving home, plaintiff claims, she felt bloated and suffered from diarrhea and stomach pain. According to plaintiff, these intestinal symptoms persisted, and indeed have continued more or less without stop since then. (Id. at 48-50, 55-57).
Plaintiff went to see one of her doctors in Puerto Rico two days after the flight. (Id. at 63). She says that he told her that she had "some bacteria" inside her and gave her Zantac for her stomach (id. at 51-52), and that he saw her again two weeks later for continuing diarrhea. (Id. at 52). She further testified that although her doctor gave her a reference for psychiatric treatment, she never went. (Id. at 54; 2d Pl.'s Dep. at 49-50).
Plaintiff asserts that she is still afraid of eating (2d Pl.'s Dep. at 71), and that her distress prevented her for a time from attending to the affairs of a spa business that she owned in Puerto Rico. The extent of this closure of her business is entirely unclear since at one point she claimed to have lost "several days" (Pl.'s Dep. at 12), but later claimed she lost three to four months (id. at 67-68), and still later admitted that she had not yet opened her business at the time of the incident on the plane. (2d Pl.'s Dep. at 72).
As for plaintiff's prior medical history, from her testimony it appears fairly extensive. She reported that in 2002 she had undergone gall bladder surgery and that she had also had a cyst on her pancreas surgically removed that same year. (Pl.'s Dep. at 19, 21, 50-51, 57-58). In the wake of these procedures she was placed on what she describes as a strict diet that excluded rice, red and green peppers, black pepper, broccoli and other gas-inducing foods. (2d Pl.'s Dep. at 24-25, 37-38). When asked at her deposition whether the diet also called for her to avoid eating string beans, she was equivocal, first saying "no" and then modifying that response to a "maybe". (Id. at 38). From her testimony, it appears that she has not adhered to that diet or one given her by Dr. Raul Manes, her "family physician" (Dep. of Raul B. Manes Horta, Aug. 31, 2005 [Manes Dep.], 17), which she indicated was too strict. (See 2d Pl.'s Dep. at 31-32; Pl.'s Dep. at 69). She further admitted that she has had a continuing condition of gastritis, long predating the incident on the airplane, and that she has suffered over the years from bloating and diarrhea as a result. (Pl.'s Dep. at 57-58, 62-63; 2d Pl.'s Dep. at 31-32, 44-49). Indeed, she mentioned suffering from bloating for three months in 2000 (2d Pl.'s Dep. at 45-46), and recounted repeated clinic visits in 2000 and 2001 for these problems. (Id. at 46, 49). Similarly, since she underwent gall bladder surgery, she suffered continuing bloating and inflammation of the stomach. (Id. at 48, 54).
The doctor whom plaintiff consulted after arriving in San Juan, a physician named Raul B. Manes Horta, also testified in a deposition. Dr. Manes, who is an internist, reported that he had previously treated plaintiff occasionally for a variety of maladies, starting in 1977, and that she had suffered from a number of intestinal or gastric problems over the years. Thus he confirmed that in 2001 she had undergone a laparoscopy because of abdominal pain, and that the procedure had uncovered a pancreatic cyst, which was then removed. (Manes Dep. at 35-36). He recounted that he had seen her on July 31, 2002 because she was vomiting and complaining of nausea and dizziness. (Id. at 36, 39). He was not aware of the gall bladder surgery that plaintiff had reported undergoing that year, and it is unclear whether that surgery was related to the condition that she had reported to him that July. (Id. at 51-52). He also was unaware of Ms. Luna's prior treatment in 2000 and 2001 for gastrointestinal problems, including bloating (id. at 40), as well as her abdominal CT scan in 2002. (Id. at 40). He also was unfamiliar with her treatment by another internist (Dr. Davila) or her surgeon (Dr. Brigido Pagan). (Id. at 48-49).
It is apparent that the original dietary limitations that plaintiff described had been given her by Dr. Pagan, the surgeon who had performed the pancreatic or gall bladder procedures, rather than by Dr. Manes (see id. at 56; 2d Pl.'s Dep. at 38), but Dr. Manes confirmed that he had repeatedly reminded her of the need to avoid "strong foods". (Manes Dep. at 69, 73-78 (referring, as examples, to meats, fat, condiments and spices)). Dr. Manes also confirmed that if plaintiff ate food that was not on her diet, it could cause gastrointestinal upset, including nausea and vomiting. (Id. at 67-68. See id. at 73-74).
Dr. Manes testified that he had seen plaintiff two days after her July 20, 2003 flight and that she had recounted to him that she had chewed on a lizard from her meal. (Id. at 34, 44-45). He also mentioned plaintiff's report that she had suffered in the past from anorexia and dyspepsia. (Id. at 46). According to the doctor, he did not conduct any internal or blood tests on that occasion (id. at 53-54)*fn1, although he manually examined her abdomen externally and found no masses or any other sign of an internal physical problem. (Id. at 50). He noted that she had a rash consisting of spots on the upper portion of her chest which he described as "something simple", for which he prescribed Benadryl (id. at 52, 71-72), and he opined that her reported physical complaints were likely caused by her psychological reaction to the event on the airplane. (Id. at 61, 98-99, 110). He further described her as appearing anxious on that occasion, and he testified that he had given her Benadryl in part to serve as a tranquilizer. (Id. at 46-47).
Dr. Manes reported that he had seen plaintiff again nearly two weeks later for continuing complaints of stomach problems, and that he also saw her several times in 2004 when she was again complaining of diarrhea and bloating for a period of several months. (Id. 73-75). It appears that on these visits Dr. Manes reiterated to plaintiff that she needed to observe her dietary restrictions, including avoidance of spices, "strong foods"*fn2, and alcohol. (Manes Dep. at 78). He also confirmed that from 2001 --following the pancreatic surgery -- to the present plaintiff was seeing a gastroenterologist because of continuing gastric problems following her pancreatic cyst removal. (Id. at 79). Finally, he confirmed that he had referred plaintiff for psychiatric consultation, but apparently not until January 2005. (Id. at 15, 54).