MOUNT VERNON - Madison County Associate Judge Clarence Harrison properly rejected Theresa Johnston's claim that ConAgra Foods injured her with poisonous peanut butter, Fifth District appellate judges ruled on Oct. 6.

Justice James Wexstten wrote that Johnston "failed to set forth sufficient evidentiary facts from which the court could infer that the peanut butter she consumed contained salmonella bacteria or that her illness was attributable to contaminated peanut butter."

"The plaintiff presented no evidence that the peanut butter she consumed was contaminated with salmonella bacteria," Wexstten wrote.

"Instead, the plaintiff provided a sample of peanut butter that tested negative for salmonella bacteria."

"Additionally, the plaintiff provided no evidence that her illness resulted from salmonella contamination, which is a required element of her claim."

Wexstten also wrote that her doctor couldn't state with certainty that salmonella caused her illness.

He wrote that the timing and duration of symptoms weren't typical.

He wrote that a stool culture tested negative and neither colonoscopy nor biopsy indicated she suffered from salmonellosis.

"Although the plaintiff indicated that she believed that her symptoms resulted from contaminated peanut butter, the plaintiff's own speculation is insufficient to establish the necessary inference of causation to provide a basis for recovery and must be discounted as surmise and conjecture," he wrote.

Justices James Donovan and Stephen Spomer concurred.

Johnston ate two peanut butter sandwiches on Oct. 16, 2006.

Two hours later she vomited.

For months she suffered diarrhea.

On Feb. 14, 2007, ConAgra issued a recall due to salmonella.

Johnston found the recall included three jars she had kept.

She sued on Oct. 15, 2008, alleging breach of warranty and praying for a sum not to exceed $50,000.

She and ConAgra consented to arbitration, transferring the case from Circuit Judge Andy Matoesian to Associate Judge Ralph Mendelsohn.

Arbitrators found in ConAgra's favor in 2009, and Johnston rejected the decision.

ConAgra moved for summary judgment last year, relying on a statement that among 1,231 samples from the recall, 29 contained salmonella.

At a deposition, physician Donald Murray said it was hard to determine the cause and effect of his patient's illness.

"You can't say she does have it and you can't say she doesn't because we have no scientific evidence to prove one way or the other," Murray said.

Harrison, who had taken the case when Mendelsohn retired, granted summary judgment.

Johnston appealed and lost again.

"The defendant argues that although the plaintiff's peanut butter was included in its recall, the plaintiff has failed to show that the peanut butter she consumed contained salmonella or that her symptoms were a result of salmonella poisoning," Wexstten wrote.

"We agree," he wrote.

Theodore MacDonald, of Hepler Broom in Edwardsville, represented ConAgra.
Lon Weaver of Bethalto represented Johnston.

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