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16-P-504                                           Appeals Court

              KELVIN SANTIAGO & others1 vs. RICH
                PRODUCTS CORPORATION & others.2


                           No. 16-P-504.

     Middlesex.     September 8, 2017. - December 28, 2017.

              Present:   Milkey, Hanlon, & Shin, JJ.


Negligence, Spoliation of evidence, School. Food. School and
     School Committee, Liability for tort. Practice, Civil,
     Instructions to jury, Summary judgment.



     Civil action commenced in the Superior Court Department on
August 21, 2006.

     A motion for summary judgment was heard by Garry V. Inge,
J.; the case was tried before Bruce R. Henry, J., and the entry
of judgment was ordered by him.


     Marc Diller (Jonathon D. Friedmann also present) for the
plaintiffs.
     Myles W. McDonough for Rich Products Corporation & others.




     1 Julia Rivera and Juan Santiago, individually and as next
friends of Kelvin Santiago.

     2 Rich-Seapak Corporation, Casa Di Bertacchi Corporation,
and the city of Lowell.
                                                                    2


     Hannah B. Pappenheim, Assistant City Solicitor (Elliott
Veloso, Assistant City Solicitor, also present) for city of
Lowell.


     SHIN, J.   Kelvin Santiago (Kelvin) suffered traumatic brain

damage after choking on meatballs served in the cafeteria of a

city of Lowell (city) public school.   He and his parents filed

suit against the city and Rich Products,3 the company that

produced and sold the meatballs, asserting negligence and breach

of the implied warranty of merchantability, among other claims.

A judge allowed the city's motion for summary judgment, and,

after seventeen days of trial, a jury returned a verdict in Rich

Products' favor.4   On appeal the plaintiffs claim error in the

trial judge's denial of their request for an adverse-inference

instruction against Rich Products for alleged spoliation of

documentary evidence and in the motion judge's allowance of

summary judgment for the city.   We conclude that the trial judge

did not abuse his discretion in declining to give a spoliation

instruction because the plaintiffs failed to establish the


     3 The three corporate defendants are affiliated entities.
We will refer to them collectively as Rich Products.

     4 The jury found that Rich Products was negligent but that
the negligence was not a substantial contributing factor to the
plaintiffs' injuries. They further found that Rich Products did
not breach the implied warranty of merchantability by selling
meatballs that were unreasonably dangerous. Although the
plaintiffs argued below that these verdicts are inconsistent,
they do not renew that argument on appeal.
                                                                    3


necessary factual predicate that Rich Products lost or destroyed

the missing evidence when it knew or should have known of a

potential lawsuit.    We further conclude that the motion judge

correctly ordered the entry of summary judgment for the city

because no rational jury could have found that its employees

acted negligently.    For these reasons we affirm the judgment.

    Background.      1.   The choking incident.   The basic facts

regarding what occurred during the incident are not in dispute.

    In 2004 Rich Products began producing meatballs to sell to

schools through the Federal government's National School Lunch

Program.    The meatballs contained a binding agent called Profam

974, which is a soy protein isolate.     The use of Profam 974

enabled Rich Products to satisfy the United States Department of

Agriculture (USDA) requirement that each school lunch contain

two ounces of protein per student.

    At 11:00 A.M. on March 15, 2006, Kelvin, then a first-grade

student, went to the school cafeteria for lunch, which that day

was spaghetti and four meatballs produced and sold by Rich

Products.    At around 11:11 A.M., a cafeteria supervisor

announced that the children had four minutes to finish eating

lunch.   Soon thereafter, Kelvin began choking.

    Various school personnel present in the cafeteria tried to

dislodge the obstruction in his airway using back blows and the

Heimlich maneuver.    Two school nurses quickly arrived and
                                                                    4


continued with the Heimlich maneuver, followed by chest

compressions and cardiopulmonary resuscitation.    At some point

an employee called 911.   Paramedics were dispatched at 11:15

A.M. and arrived at the school at 11:19 A.M.   When they arrived,

Kelvin was neither conscious nor breathing and had no pulse.

Using forceps, a paramedic extracted several large pieces of

meatball out of Kelvin's airway.   By that time, however, Kelvin

had been deprived of oxygen for too long, and he suffered

catastrophic brain damage.

    Immediately after the incident, the school's custodian was

directed to clean up the cafeteria.   While doing so, he

discarded the pieces of meatball that had been removed from

Kelvin's airway.   The record reflects that the remaining

meatballs in the school's possession were ground up and used to

make spaghetti sauce.

    2.   Proceedings in the trial court.   The plaintiffs filed

suit just a few months later, in August of 2006.   After years of

discovery and motion practice, the motion judge ordered the

entry of summary judgment for the city, finding the evidence

insufficient to create a triable issue of whether the city was

negligent.   The motion judge concluded in the alternative that

the city was immune from liability pursuant to certain

exemptions in the Massachusetts Tort Claims Act, G. L. c. 258.
                                                                   5


     One week before the scheduled start of trial, the

plaintiffs filed motions in limine seeking sanctions against

Rich Products for alleged spoliation of (1) laboratory notebooks

and production records from 2004 relating to the development of

the formula for the meatball and (2) the results of product-

development and production testing from 2004.5   The trial judge

deferred ruling on the motions, stating that he "want[ed] to

hear what the evidence is with respect to exactly what it was

that was done with respect to the missing materials."

     The plaintiffs' claims against Rich Products then proceeded

to trial in March of 2014.    The plaintiffs' theory of the case

was that the use of Profam 974 caused Rich Products' meatball to

have an unreasonably dangerous texture, presenting a choking

hazard.   In support of this theory, the plaintiffs presented an

expert who had recreated the meatball -- using a detailed

formula provided by Rich Products in answers to interrogatories

-- for the purpose of comparing its texture to meatballs that

did not contain Profam 974.   This expert opined that the

inclusion of Profam 974 made Rich Products' meatball more

difficult to chew and break apart than the others in her test


     5 The plaintiffs also alleged that Rich Products failed to
produce a document showing that the USDA approved the meatball
in 2004. Rich Products produced that document at trial,
however, after requesting it from the USDA through the Freedom
of Information Act.
                                                                     6


study.   Another of the plaintiffs' experts opined that both the

size and texture of the meatball presented a choking risk to

children.

     At the close of the evidence, the judge asked the

plaintiffs' counsel, "As far as the spoliation instruction, what

information does the jury have in order for them to make a

determination that normally they would have to make if I gave

them that instruction?    What information do they have as to when

these various categories of things were destroyed?"     Counsel

responded by pointing to Rich Products' corporate policy

requiring retention of documents for three years.      The judge

then ruled that there was no spoliation, that he would not give

an instruction, but that he would not "prevent the plaintiffs

from arguing the lack of evidence in that regard."

     Discussion.   1.    Spoliation.   We review the judge's

decision for abuse of discretion.6     See Scott v. Garfield, 454

Mass. 790, 798 (2009).    Under the doctrine of spoliation, a




     6 We reject Rich Products' argument that, because the judge
did not specify the grounds for his ruling, we should assume
that he made "implicit" factual findings against the plaintiffs
on every element of spoliation, which we would then review for
clear error. The argument is illogical and is not supported by
the authority Rich Products cites. Furthermore, we believe it
evident from the judge's questioning that the basis for his
finding of no spoliation was that the plaintiffs put forth no
"information . . . as to when these various categories of things
were destroyed."
                                                                     7


judge can impose sanctions against a litigant who "negligently

or intentionally loses or destroys evidence that the litigant

. . . knows or reasonably should know might be relevant to a

possible action, even when the spoliation occurs before an

action has been commenced."   Ibid.   See Mass. G. Evid. § 1102

(2017).   The premise underlying the doctrine is that a party who

culpably destroys evidence "should be held accountable for any

unfair prejudice that results."   Keene v. Brigham & Women's

Hosp., Inc., 439 Mass. 223, 234 (2003).   The doctrine does not

extend to "a fault-free destruction or loss of physical

evidence."   Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 127

(1998).   Thus, as the parties agree, the party seeking sanctions

has the burden to "produce[] evidence sufficient to establish

certain preliminary facts," Scott, 454 Mass. at 799, including

"that a reasonable person in the spoliator's position would

realize, at the time of spoliation, the possible importance of

the evidence to the resolution of the potential dispute."      Id.

at 798 (quotation omitted).   See Kippenhan, 428 Mass. at 127

(sanctions are not "justified if the [evidence] was destroyed,

lost, or otherwise disposed of before [the litigant] knew or

reasonably should have known of the possibility of a suit").

    Here, the judge was within his discretion not to give a

spoliation instruction because the plaintiffs offered no

evidence to establish the basic threshold fact of when the
                                                                     8


documents at issue went missing.   Without establishing this

threshold fact, the plaintiffs necessarily could not show that

Rich Products lost or destroyed the documents when it knew or

should have known of their potential significance.   Consistent

with the argument the plaintiffs made below, the only evidence

they point us to is testimony regarding Rich Products' three-

year retention policy.   But even if someone at Rich Products

discarded the documents before the expiration of the three-year

timeframe, that still would not prove that Rich Products lost or

destroyed the documents after receiving notice of this lawsuit.

Indeed, Rich Products offered evidence that the documents could

have been lost in 2005 -- the year before Kelvin sustained his

injury -- when a reorganization of the company caused "a lot of

people . . . and a lot of documents [to be] moved around."

Beyond this, no evidence was presented as to the circumstances

or timeframe of the loss.   The judge thus acted within his

discretion in finding that the plaintiffs failed to establish

the necessary factual predicates of spoliation.   See Vigorito v.

Ciulla Builders, Inc., 57 Mass. App. Ct. 446, 454-455 (2003)

(judge properly denied spoliation motion where no information

was offered as to circumstances in which evidence was lost).

    Moreover, even had there been spoliation, any prejudice to

the plaintiffs was remedied by the judge's ruling allowing them

to make use of the fact that the documents were missing.     "Once
                                                                     9


spoliation has been established, the judge has the discretion to

craft a remedy addressing 'the precise unfairness that would

otherwise result.'"     Westover v. Leiserv, Inc., 64 Mass. App.

Ct. 109, 113 (2005), quoting from Fletcher v. Dorchester Mut.

Ins. Co., 437 Mass. 544, 550 (2002).    "The spectrum of remedies

includes allowing the party who has been aggrieved by the

spoliation to present evidence about the preaccident condition

of the lost evidence and the circumstances surrounding the

spoliation . . . ."     Gath v. M/A-COM, Inc., 440 Mass. 482, 488

(2003).   "As a general rule, a judge should impose the least

severe sanction necessary to remedy the prejudice to the

nonspoliating party."    Keene, 439 Mass. at 235.

     The plaintiffs here have not shown how the alleged

spoliation prejudiced them in any significant way.    With respect

to the first category of missing documents -- laboratory

notebooks and other records relating to the development of the

meatball formula -- the plaintiffs' claim of prejudice is that

they did not have "confirmation regarding the actual formula"

and "the spoliated documents would have shown that Rich

[Products] changed the formula one year into production."7    But


     7 The plaintiffs' theory appears to be that the 2004 records
would reveal a different formula than the one Rich Products was
using in 2006, casting doubt both on the accuracy of the formula
provided in Rich Products' interrogatory answers and on its
claim that it made fifty-one million meatballs using the same
formula without any other incidents of choking.
                                                                    10


these issues were thoroughly explored at trial, and the

testimony was consistent that, other than the removal of sesame

seeds in 2006, Rich Products had made no changes to the formula

since 2004.    This testimony was supported by evidence that the

approval application Rich Products submitted to the USDA in 2004

set out the same formula as the application it submitted in

2010.    Also, if the plaintiffs had doubts as to the accuracy of

the formula provided by Rich Products, they could have obtained

comparable meatballs from the same product line for their

experts to examine.    See Westover, 64 Mass. App. Ct. at 114

(movant was not prejudiced by opposing party's negligent loss of

chair with alleged design defect because its experts could

examine "chairs of the same make and model").8




     8 At oral argument the plaintiffs suggested that no exemplar
was available because Rich Products started using a different
formula shortly after the choking incident. The suggestion
seems to be based on evidence that, in August of 2006, Rich
Products submitted an approval application to the USDA that
listed a different formula than the one that appears on the 2004
application. But several witnesses testified, under oath, that
the 2006 application was submitted in error and that that
formula was never used in production. Moreover, even assuming
the formula was changed in 2006, an exemplar would still have
been available to the plaintiffs because (1) there was at least
a five-month gap between when Kelvin's injury occurred and when
the new formula could have been put into production and (2) the
formula Rich Products was using in 2010 was the same one it was
using at the time of Kelvin's injury. Again, trial in this case
did not start until 2014.
                                                                  11


     With respect to the second category of documents -- the

testing results from 2004 -- the plaintiffs contend that these

documents would have obviated the need for them to do their own

testing "and would have contravened Rich [Products'] claim that

[the] meatball had a reasonably safe texture."   This is

speculation.   In fact, the evidence established that most of the

testing was done for quality purposes, i.e., to assess whether

people liked the taste and texture of the meatball.   Although

safety testing was also conducted, it was for the purpose of

checking for bacteria and foreign contaminants, not for choking

hazards.

     Thus, even assuming spoliation, the judge was within his

discretion, given the minimal demonstrated prejudice to the

plaintiffs, to decline to give an adverse-inference instruction

but to allow the plaintiffs to make use of the fact that the

documents were lost.   And their counsel made the most of the

opportunity, referring to the loss of relevant evidence in his

opening statement, questioning Rich Products' employees at

length about the missing documents, and arguing in closing that

the jury should find the employees not credible because they had

lost the documents.9   This was sufficient to remedy whatever


     9 The plaintiffs claimed at oral argument that Rich
Products' counsel used the missing documents as a sword in his
own closing, when he stated, "where's the evidence" that there
was a change in the formula. But counsel followed that
                                                                     12


unfairness to the plaintiffs that was caused by the missing

evidence.     See Vigorito, 57 Mass. App. Ct. at 455 (while

properly denying spoliation motion, judge ameliorated harm by

"point[ing] out [movant] was free to make use in its own behalf

of any part of" fact that evidence was destroyed).     Cf. Keene,

439 Mass. at 235 (it was within judge's discretion to impose

"the least severe sanction necessary to remedy the prejudice").

    2.    Summary judgment for city.    We review the motion

judge's allowance of summary judgment for the city de novo,

viewing the evidence in the light most favorable to the

plaintiffs.     See Boazova v. Safety Ins. Co., 462 Mass. 346, 350

(2012).     To prevail on a claim of negligence, a plaintiff "must

establish that the defendant owed the plaintiff a legal duty,

and that a breach of that duty proximately caused injury to the

plaintiff."    Petrell v. Shaw, 453 Mass. 377, 385 (2009).

Although the inquiry is ordinarily one of fact, a defendant can

prevail on summary judgment "by demonstrating that the




statement by citing the evidence that was actually presented at
trial -- specifically, the 2004 and 2010 USDA applications,
which list the same formulas. Also, the plaintiffs' assertion
of a change in formula derives from evidence that Rich Products
submitted a different application to the USDA in 2006; but the
plaintiffs had the 2006 records in their possession and
questioned the witnesses about them extensively. See note 8,
supra. We cannot glean from the plaintiffs' arguments what
precise prejudice they claim they suffered from the loss of the
2004 records.
                                                                   13


[plaintiff] has no reasonable expectation of proving an

essential element of his case at trial."     Id. at 381.    Put

differently, "a judge may decide the issue as a matter of law

when no rational view of the evidence permits a finding of

negligence."    Ibid.   See Kourouvacilis v. General Motors Corp.,

410 Mass. 706, 716 (1991).

     The plaintiffs contend that the city was negligent in two

ways:     by serving Kelvin a food product that was unreasonably

dangerous for school-aged children and by failing to adequately

supervise the students in the cafeteria.     We agree with the

motion judge that the plaintiffs had no reasonable expectation

of proving negligence on either of these grounds.    They

presented no evidence that would allow a rational jury to find,

or even infer, that the city knew or had reason to know of the

alleged dangerousness of the meatball -- a USDA-approved product

that the city bought through the National School Lunch Program.10

Nor could a rational jury find that the city was negligent in

supervising the students.     Although the plaintiffs claim that

school employees knew that the students "engaged in food eating

contests and regularly engaged in high risk behaviors," they

fail to identify what the employees could have done differently


     10The plaintiffs also do not address the potential
preclusive effect of the jury's finding that the meatball was
not unreasonably dangerous.
                                                                   14


to curb those behaviors so as to have prevented Kelvin's

injuries.11    See Glidden v. Maglio, 430 Mass. 694, 696 (2000)

(defendant entitled to summary judgment where "plaintiffs failed

to proffer any evidence . . . establish[ing] any causal link

between their injuries and the defendant's breach of any duty to

them").

     To the extent the plaintiffs claim that the school

employees' use of back blows and their allegedly faulty

administration of the Heimlich maneuver were independent acts of

negligence, that claim was also properly dismissed on summary

judgment.     Proof of medical causation "generally must be

established by expert testimony."     Harlow v. Chin, 405 Mass.

697, 702 (1989).    See Held v. Bail, 28 Mass. App. Ct. 919, 921

(1989).     It is beyond the ken of an ordinary juror to know

whether the back blows or the administration of the Heimlich

maneuver might have worsened Kelvin's condition.     See


     11The plaintiffs mention in passing the cafeteria
supervisor's announcement that the children had four minutes
left to finish their lunch, which they say "encourag[ed] these
kids quickly to eat this already dangerous food." But the
announcement is not itself actionable negligence. It simply
implemented the school's decision to allot fifteen minutes for
lunch, and the plaintiffs concede that that decision falls under
the discretionary-function exemption to the Massachusetts Tort
Claims Act. See G. L. c. 258, § 10(b). The plaintiffs also
concede that the discretionary-function exemption bars any claim
that the school assigned an insufficient number of employees to
supervise the cafeteria or that the employees were inadequately
trained.
                                                                   15


Commonwealth v. Hamel, 91 Mass. App. Ct. 349, 352 (2017),

quoting from Pitts v. Wingate at Brighton, Inc., 82 Mass. App.

Ct. 285, 289 (2012) (expert testimony required where

determination of causation required information outside "general

human knowledge and experience").   Thus, the plaintiffs had to

offer expert evidence to create a triable issue on their claim.

They did not, nor did they raise any argument under

Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), that additional

discovery was necessary to respond to the city's motion.     See

Kourouvacilis, 410 Mass. at 716-717 (summary judgment proper

where plaintiff failed to present expert evidence in support of

her case); Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221,

227-228 (1999) (same).

     In the end we agree with the motion judge's assessment that

no rational view of the evidence would permit a finding that the

school employees acted negligently in their response to this

tragic accident.   They immediately identified that Kelvin was in

distress, took prompt actions to try to help him, and called 911

for medical assistance.   On these undisputed facts, the motion

judge was correct to enter summary judgment for the city.12

                                    Judgment affirmed.


     12The parties debate at length whether the city is immune
from liability under the original cause exemption to the
Massachusetts Tort Claims Act. See G. L. c. 258, § 10(j).
Given our ruling, we need not resolve the issue.
