from the Clark Circuit Court Trial Court Cause No.
10C04-1310-CT-183 The Honorable Vicki L. Carmichael, Judge
Attorneys for Appellant Crystal G. Rowe New Albany, Indiana
Michael Wroblewski Adam S. Ira Indianapolis, Indiana
Attorney for Appellee Marc S. Sedwick New Albany, Indiana
Golden Corral Corporation appeals following a jury verdict
and $240, 000 award of damages in favor of Kristina M. Lenart
on Lenart's claim for negligence in which Lenart alleged
that Golden Corral failed to prepare and serve its barbeque
chicken wings in a manner safe for human consumption and that
as a result of consuming such chicken wings, Lenart suffered
from food poisoning and related injuries. On appeal, Golden
Corral presents four issues for our review:
1. Did the trial court abuse its discretion in allowing Dr.
Julie Hutchinson to testify as an expert witness on
2. Did the trial court abuse its discretion in denying Golden
Corral's motions for judgment on the evidence?
3. Did the trial court abuse its discretion by instructing
the jury on spoliation and res ipsa loquitur?
4. Did the trial court err in concluding that Lenart's
claim was not governed by the Indiana Products Liability Act
& Procedural History
On Sunday, April 28, 2013, Lenart, her husband Kenneth, and
their twelve-year-old daughter went to the Golden Corral
restaurant in Clarksville, Indiana. When they arrived at the
restaurant at approximately 1:00 p.m., there was a line at
the front register and after they paid, they had to wait
about ten minutes until a table became available. Lenart and
her family then proceeded to the buffet.
When Kenneth grabbed a plate, he saw that there was food
stuck between two plates and brought it to the attention of a
Golden Corral employee. He then grabbed another plate and
started choosing food items. As he walked down the buffet
line, Kenneth noted that "the amounts of food were kinda
slim-pickin's" and most of the food bins were
"down to a bare minimum" with some bins completely
empty of food. Transcript Vol. 2 at 239. He
overheard an employee apologizing to patrons and advising
that it could take up to thirty to forty minutes for food on
the buffet to be replenished because they had been
"slammed" with customers. Id. Kenneth then
returned to the table. Because he did not get all the food he
wanted on his first trip to the buffet, Kenneth continued to
watch the buffet line to see when additional food was brought
out. He described the circumstances as a "feast or
famine type of thing," noting that "[e]very time
that a tray of food was brought out it was kind of like . . .
steel to a magnet, everybody just converted [sic] on it, . .
. they wanted their food." Id. at 242.
During her first trip to the buffet, Lenart chose bone-in,
barbeque chicken wings, mashed potatoes, and a slice of pizza
and then returned to the table with her family. As she ate
the wings, she did not perceive any problems or note that
they were pink or undercooked. On her second trip to the
buffet, Lenart grabbed about ten more barbeque chicken wings
and ate all but a couple.
Lenart's daughter went through the buffet line three
times, and on her third trip she opted for plain, bone-in
chicken wings, which were in a tray separate from the
barbeque chicken wings. After she bit into her first plain
chicken wing, Kenneth "noticed it was like blood raw, it
wasn't just pink, . . . it was raw." Id. at
244. Kenneth told her to stop eating her plain chicken wing
and then he took it to the register and demanded to speak
with a manager. While he was speaking with the manager,
another female patron approached and "went off on the
manager" about her chicken being raw. Transcript
Vol. 3 at 3. The manager immediately offered Kenneth a
refund, which Kenneth accepted. The manager then threw away
the plain chicken wing that Kenneth brought to his attention.
Lenart and her family left Golden Corral without finishing
their food. They went to a nearby Lowe's home improvement
store, where they shopped for approximately thirty to
forty-five minutes before making the twenty-minute drive
home. During this time, Lenart was feeling fine. Shortly
after returning home, while she was preparing to plant
flowers outside, Lenart suddenly started feeling sick and had
to walk "real fast like a run" to the bathroom.
Id. at 6. Lenart first had diarrhea and then she
experienced intense vomiting. These symptoms appeared
approximately one to two hours after Lenart left Golden
Corral. Neither Kenneth nor Heather experienced any illness
or adverse symptoms.
Later that evening, Kenneth took Lenart to the emergency
room. Because she was not treated promptly, Kenneth took her
to a second emergency room where she remained overnight. The
following morning, Lenart was released.
On May 7, 2013, Lenart followed up with a family doctor with
continued complaints of abdominal pain, nausea, and vomiting.
Lenart was referred to a gastroenterologist, who, after an
evaluation on May 28, 2013, referred her to Dr. Julie
Hutchinson, a board-certified general surgeon. Dr. Hutchinson
evaluated Lenart on May 31, 2013, at which time Lenart
complained of continued abdominal pain and told Dr.
Hutchinson that she was not able to keep food down. Dr.
Hutchinson determined that Lenart had an umbilical hernia
that required surgery, which Dr. Hutchinson performed on June
After the surgery to repair the umbilical hernia, Lenart
continued to complain of abdominal pain and nausea, leading
to two additional surgeries to repair scar tissue that had
formed at the first surgical site. Dr. Hutchinson believes
Lenart might require additional surgeries in the future.
Prior to this health incident, Lenart never had problems with
her gallbladder, gastritis, pancreatitis, or vomiting. In the
six months preceding her visit to Golden Corral, Lenart had
not experienced any issues with heartburn or gastroesophageal
With regard to Golden Corral's food preparation, when
Golden Corral receives its chicken wings from its
distributor, the wings are raw and cold, but not frozen.
Golden Corral's procedure for preparing the chicken wings
is that the wings are cut into three pieces at the joints and
the wing tips are discarded. The wings are cooked in a deep
fryer at a temperature of 350 degrees for eight and a half
minutes and then drained for 10 to 30 seconds. For barbeque
chicken wings (as well as other types of flavored chicken
wings), the fried wings are placed in a pan and heated sauce
is poured over them. The wings are then transferred to an
appropriate bin and placed on the buffet. Each different
flavor of chicken wings is contained in its own separate bin,
and each bin has its own dedicated tongs.
Golden Corral also has a procedure for ensuring that the food
on its buffet is maintained at a temperature outside the
"danger zone"-which refers to the temperature range
that promotes the growth of bacteria. Id. at 103. Four
times a day (at 11 a.m., 2 p.m., 4 p.m., and 8 p.m.), Golden
Corral takes the temperature of food on the buffet and the
temperatures are noted in a temperature log. It is Golden
Corral's policy that the buffet temperature logs are kept
for ninety days, after which they are replaced with new
temperature logs over the course of the next ninety-day
period. In the case of chicken wings, the temperature is
taken of individual chicken wings on the buffet. These logs
do not provide information about how the food was prepared or
cooked. Golden Corral does not have a corollary procedure for
taking the temperature of food once it is cooked. Rather, the
food is simply prepared and cooked according to the specified
procedures. As pertinent here, Golden Corral did not preserve
the buffet temperature logs of the chicken wings for the day
Lenart visited the Clarksville location after the expiration
of the ninety-day retention period.
With respect to food items that are returned or about which a
complaint is made, Golden Corral did not, at all times
relevant to this case, have a policy requiring preservation
of such items. Generally speaking, a food item about which a
patron complains would only be saved if the manager was
directed to do so or if there is a confirmed form of
contamination. Undercooked food is typically disposed of
because there is no reason to keep it.
On April 30, 2013, two days after their visit to Golden
Corral, Kenneth accessed Golden Corral's corporate
website and submitted the following complaint:
We visited your Clarksville, IN location Sunday - THE CHICKEN
BEING SERVED WAS BLOOD RAW -There was no ham, sausage, pizza,
taco meat, meatloaf, chocolate in the wonderfall and the
deserts [sic] were at a bare minimum - This place was pushing
out RAW food and telling people it will be a 30-40 minute
wait. The food was being pushed out without ample cooking
time. My wife ended up with food poisoning and spent the
night in a hospital from eating undercooked wings and
chicken. I spoke with two managers and pointed these tings
[sic] out and neithor [sic] of them seemed like they were
very concerned about it. Other diners were complaining as
well about the chicken being undercooked. I would like
someone to contact me on this issue.
Exhibits Vol. 6, Plaintiff's Exhibit 1 at 4-5.
Golden Corral responded to Kenneth's message on May 3,
2013, advising that his concerns had been forwarded to the
District Manager for corrective action. Kenneth also received
a call from a representative of Golden Corral assuring him
that the matter was being investigated and that it was being
taken "very serious." Transcript Vol. 3 at
17. Subsequently, at the direction of the district manager,
Golden Corral's claims administrator sent a letter to
Lenart dated May 8, 2013, asking Lenart to contact them. On
June 7, 2013, Lenart's counsel wrote the claims
administrator indicating his representation of Lenart, noting
that Lenart was still being treated for her injuries, and
stating that he would be in touch within two months. The
claims administrator responded on June 19, 2013, requesting
Lenart's recorded statement to complete its
On October 24, 2013, Lenart filed a complaint for negligence
alleging that Golden Corral failed to prepare and serve its
barbeque chicken wings in a manner safe for human consumption
and that as a result of eating such chicken wings, she
sustained injuries and damages. In its answer, Golden Corral
denied the essential averments of Lenart's complaint and
asserted affirmative defenses, including that the claimed
defective product conformed to the generally recognized state
of the art under the IPLA.
Prior to trial both parties unsuccessfully moved for summary
judgment. In support of her motion for partial summary
judgment, Lenart submitted the affidavit of Dr. Hutchinson in
which Dr. Hutchinson stated: "As of May 31, 2013, it was
my understanding that in the weeks prior, [Lenart] visited a
Golden Corral restaurant, located in Clarksville, Indiana,
where she unknowingly consumed undercooked chicken
wings." Appellant's Appendix Vol. 2 at 60.
Based on her conversations with Lenart, a review of
Lenart's medical history, and her experience, Dr.
Hutchinson noted that she engaged in a differential diagnosis
and concluded "[t]o a reasonable degree of medical
probability, it is more probably true than not true, that
[Lenart]'s umbilical hernia was caused by her violent