                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3071-17T2

STEVEN P. PICCIANO,

          Plaintiff-Appellant,

v.

COSTCO WHOLESALE
CORPORATION, COSTCO
WHOLESALE CORPORATION
OF CLIFTON, NEW JERSEY, and
WAWONA PACKING COMPANY,

     Defendants-Respondents.
__________________________________

                    Submitted January 24, 2019 – Decided February 25, 2019

                    Before Judges Reisner and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Docket No. L-4430-16.

                    Piro, Zinna, Cifelli, Paris & Genitempo, LLC, attorneys
                    for appellant (Daniel R. Bevere, on the briefs).

                    Fishman McIntyre Berkeley Levine Samansky, PC,
                    attorneys for respondent Costco Wholesale Corporation
                    and Costco Wholesale Corporation of Clifton, New
            Jersey (Lawrence M. Berkeley, of counsel and on the
            brief; David L. Kowzun, on the brief).

            Hawkins Parnell Thackston & Young LLP, attorneys
            for respondent Wawona Packaging Company (Roy F.
            Viola, Jr. and Manuel A. Guevara, on the brief).

PER CURIAM

      Plaintiff Steven P. Picciano appeals from two February 2, 2018 orders

granting defendants' Costco Wholesale Corporation (Costco), Costco Wholesale

Corporation of Clifton (Costco Clifton), and Wawona Packaging Company

(Wawona) summary judgment. We affirm.

      The following facts are taken from the motion record. At the time of the

underlying incident in this case, Wawona contracted with Costco to supply

peaches at its stores. However, Wawona was not Costco's sole supplier of

peaches.

      Picciano was a Costco member. On July 8, 2014, he shopped at Costco

Clifton and purchased a box of peaches. He consumed the peaches over the next

week and began experiencing diarrhea, headaches, constant cramping, muscle

pains, dehydration, and light-headedness.      Picciano was treated by his

gastroenterologist for his symptoms.

      On July 14, 2014, after Picciano had consumed the peaches, he received a

call from Costco advising him of a nationwide recall on peaches distributed by

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                                       2
Wawona between June 1, 2014 and July 12, 2014, because of a potential Listeria

contamination. The notice provided the lot and block identification numbers

subject to the recall. However, Picciano had discarded the packaging before he

was made aware of the recall.

      Picciano sought medical treatment from Dr. Nader Moaven. Two stool

cultures taken a week apart in July and August 2014, tested negative for

Listeriosis. Dr. Moaven listed Listeriosis as one of the three potential diagnoses

for Picciano's condition.

      Dr. Ethan Spira also treated Picciano. His July 30, 2014 report stated

Picciano was treated at the hospital "[three] weeks after eating peaches" and his

stool was "[n]egative . . . for Listeria." Dr. Spira concluded Picciano was

suffering from Irritable Bowel Syndrome (IBS) with "likely slight worsening of

symptoms after acute gastroenteritis." Dr. Spira's report also stated:

                   Febrile gastroenteritis secondary to listeria
            infection typically occurs after ingestion of a large
            inoculum of bacteria contaminated food. The attack
            rate varies from [fifty to one-hundred percent]. The
            symptoms included fever, watery diarrhea, nausea,
            vomiting, headache and pains in muscle and joints.
            This typical duration of symptoms is two days or less
            and recovery is generally complete.

                  ....



                                                                          A-3071-17T2
                                        3
                   . . . Picciano carried a diagnosis of IBS-
            constipation predominant prior to his exposure to
            Listeria. He clearly had symptoms – fever, diarrhea,
            abdominal pain, malaise and dizziness compatible with
            an attack of febrile gastroenteritis secondary to Listeria.
            His IBS symptoms now include bloating and a mixed
            IBS syndrome with alternating constipation and
            diarrhea. He had also developed left sided abdominal
            pain. These symptoms can persist for years post
            infectious gastroenteritis.

      Dr. Alexis Te treated Picciano in September 2014. Dr. Te noted Picciano's

previous Listeria diagnosis, but stated it was a "presumed infection, not

documented." Dr. Te's diagnoses did not include Listeriosis. Picciano also

received treatment from Dr. Angelo Calabrese, who noted Picciano was

"hospitalized . . . for presumed Listeria, not documented." Dr. Calabrese did not

diagnose Picciano with Listeriosis.

      Picciano filed a complaint against defendants alleging causes of action for

strict liability, negligence, breach of warranty, and breach of N.J.S.A. 24:5-1 to

-22 prohibiting the sale, distribution, or manufacture of adulterated products.

The complaint alleged Picciano's "treating physicians have causally related [his]

gastro-enteric illness and symptoms to the Listeria contamination from the

peaches he consumed."

      Following discovery, which included Picciano's deposition, defendants

filed separate motions for summary judgment. Wawona argued there was no

                                                                          A-3071-17T2
                                        4
evidence Picciano had consumed Wawona peaches, or that the peaches in

question were actually contaminated with Listeria. It argued the medical records

did not prove Picciano was actually exposed to Listeria. Wawona also argued

Picciano failed to establish he purchased peaches it packaged, because the item

number shown on the Costco receipt was "associated with approximately seven

different manufacturers."

      The Costco defendants argued there was no evidence they had altered the

peaches in any way. Picciano conceded this point, because he argued the

contamination occurred while the peaches were in the manufacturer's

possession.

      The motion judge noted:

              [Picciano's expert report] says . . . the symptoms are
              compatible with listeria poisoning, but that's not the
              same thing as what [Picciano is] arguing, which is that
              [Picciano] has listeria and it was caused by the peaches.
              I don't see any medical evidence, at all, in the record
              that supports [Picciano]'s case that he was suffering
              from listeria. That the listeria was caused by exposure
              to the contaminated peaches. And that [Picciano's]
              expert actually says that he had listeria, as [Picciano]
              point[s] out in [his] argument. I'm having problems
              with that. I don't see any evidence in the record to
              support any of that.

                    ....



                                                                          A-3071-17T2
                                         5
                   The only time [the expert] mentions exposure to
            . . . listeria is based upon what [Picciano] is telling
            him. . . .

                   Secondly. . . . [T]he final paragraph . . . lists out
            the symptoms that [Picciano] was suffering from, but
            basically . . . only goes as far as saying that those
            symptoms are compatible with an attack of febrile
            gastroenteritis secondary to listeria. I don't see where
            he actually says that [Picciano] is suffering from
            listeria, and that . . . listeria caused the symptoms that
            he was suffering from.

      The judge found Wawona had distributed contaminated peaches, but

concluded the potential for receiving contaminated produce was not the same as

proving the peaches Picciano purchased were actually contaminated. The judge

noted the peaches were never tested to determine whether they were, in fact,

contaminated. He stated:

            [O]bviously, in your lawsuits you have to establish that
            the peaches were contaminated and . . . I'm gathering
            from what was submitted to the [c]ourt that the only
            evidence [Picciano] [has] is . . . a phone call from
            Costco or this recall notice. And if I look at the recall
            notice from the source of the peaches they're not even
            saying they're certain.      It's just a potential for
            [contamination] — which isn't . . . enough to get past
            summary judgment.

      The motion judge concluded:

            I just don't see the evidence that I think is necessary for
            [Picciano] to pursue the claim in court. It's unfortunate
            that the peaches are gone, but there's no law or case

                                                                           A-3071-17T2
                                         6
cited that allows that fact to excuse or lessen his burden
under the circumstances.

      In . . . [the] opposition [Picciano is] indicating
that Dr. Spira is opining that within a reasonable degree
of medical certainty [Picciano] suffered listeria
poisoning, and that the cause of the poisoning was the
contaminated peaches. That's what [Picciano] [has] to
prove here. You have to prove that the peaches were
contaminated. . . . You have to prove that the plaintiff
ate the contaminated peaches. That he suffered the
condition that arose from the contamination. And he
suffered damages. And . . . there's no direct evidence
of contamination. There are suggestions that he . . .
might have been exposed, but there's no actual
scientific proof that the peaches were contaminated.
There's no real proof, frankly, that he ate Wawona
peaches. . . .

       Nevertheless, I'm looking at the expert that . . .
[Picciano is] relying upon, Dr. Spira, . . . but . . . all he's
really saying is that the conditions he was suffering
from were compatible. And he's relying on [Picciano]
telling [him] in diagnosing listeria, . . . and, again, I
understand that by the time the testing comes about he
may have already been treated for it and it's no longer
there. But that doesn't change the fact that he still has
to come into court and establish all those facts. And I
just don't see it. . . .

      But . . . even in a summary judgment setting,
where I'm supposed to give all reasonable inferences to
the [non-moving party], I just don't see any scientific
evidence that supports [Picciano's] claim. . . .

     . . . I would also, as an additional reason, allow
Costco['s] summary judgment motion to go through
because there's no evidence that they, in any way,

                                                                  A-3071-17T2
                              7
              altered, re-branded or . . . did anything else to the
              packaging or the actual . . . peaches, themselves, when
              they came into their possession.

This appeal followed.

                                         I.

         We review "an order granting summary judgment in accordance with the

same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).

We "must review the competent evidential materials submitted by the parties to

identify whether there are genuine issues of material fact and, if not, whether

the moving party is entitled to summary judgment as a matter of law." Ibid.

(citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-

2(c)).

         We must review the facts in a light most favorable to the non-moving

party, "keeping in mind '[a]n issue of fact is genuine only if, considering the

burden of persuasion at trial, the evidence submitted by the parties on the motion

. . . would require submission of the issue to the trier of fact.'" Schiavo v. Marina

Dist. Dev. Co., LLC, 442 N.J. Super. 346, 366 (App. Div. 2015) (alteration in

original) (quoting R. 4:46-2(c)). A motion for summary judgment will not be

defeated by bare conclusions lacking factual support, Petersen v. Twp. of

Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), self-serving statements


                                                                             A-3071-17T2
                                         8
unsupported by legally competent evidence, Heyert v. Taddese, 431 N.J. Super.

388, 413-14 (App. Div. 2013), or disputed facts "of an insubstantial nature."

Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R. 4:46-2 at 2053

(2019).

      "[I]t is evidence that must be relied upon to establish a genuine issue of

fact. 'Competent opposition requires "competent evidential material" beyond

mere "speculation" and "fanciful arguments."'" Cortez v. Gindhart, 435 N.J.

Super. 589, 605 (App. Div. 2014) (emphasis omitted) (quoting Hoffman v.

Asseenontv.Com, Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009) (citing

Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563

(App. Div. 2005))). "The practical effect of this rule is that neither the motion

court nor an appellate court can ignore the elements of the cause of action or the

evidential standard governing the cause of action." Bhagat, 217 N.J. at 38.

      Picciano argues summary judgment was improperly granted because he

established defendants were strictly liable. At a minimum, he assert there were

material facts in dispute which thwarted summary judgment. He argues he

presented medical expert testimony to support his claims and the judge erred

when he determined there was no expert testimony to establish causation.




                                                                          A-3071-17T2
                                        9
                                        II.

      Products liability actions are governed by the Products Liability Act

(PLA). N.J.S.A. 2A:58C-1 to -11. Pursuant to the PLA, a cause of action is

defined as "any claim or action brought by a claimant for harm caused by a

product, irrespective of the theory underlying the claim, except actions for harm

caused by breach of an express warranty." N.J.S.A. 2A:58C-1(b)(3).

      The PLA states:

                   A manufacturer or seller of a product shall be
            liable in a product liability action only if the claimant
            proves by a preponderance of the evidence that the
            product causing the harm was not reasonably fit,
            suitable[,] or safe for its intended purpose because it: a.
            deviated from the design specifications, formulae, or
            performance standards of the manufacturer or from
            otherwise identical units manufactured to the same
            manufacturing specifications or formulae, or b. failed
            to contain adequate warnings or instructions, or c. was
            designed in a defective manner.

            [N.J.S.A. 2A:58C-2]

      A manufacturer or seller of product may be held strictly liable for harm

caused by a product for defective manufacture, defective design, and defective

warnings. Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 94-95 (1990). All

three theories require a plaintiff to prove that the product was defective, the




                                                                          A-3071-17T2
                                       10
defect existed when the product left the hands of the defendant, and the defect

caused the injury to plaintiff. Myrlak v. Port Auth., 157 N.J. 84, 97 (1999).

      "A product is deemed to be defective if it is not reasonably fit, suitable,

or safe for the ordinary or foreseeable purpose for which it is sold."      Ibid.

However, "[t]he occurrence of an accident and the fact that someone was injured

are not sufficient to demonstrate a defect."     Lauder v. Teaneck Volunteer

Ambulance Corps, 368 N.J. Super. 320, 332 (App. Div. 2004) (citing Scanlon

v. Gen. Motors Corp., Chevrolet Motor Div., 65 N.J. 582, 591 (1974)).

      We reject Picciano's challenges to the summary judgment decision. The

evidence offered to demonstrate he had purchased Wawona peaches was limited

to his self-serving deposition testimony, a nationwide notice of recall issued by

Wawona, and a lot and block number published as part of the recall. However,

Picciano admitted he no longer possessed any of the peaches, or the packaging

to link the peaches he purchased to the recalled lot and block. Picciano's Costco

receipt did not indicate the brand of peaches he purchased and only provided a

product number, which was associated with approximately seven distributors

and not exclusively Wawona. The record also lacks evidence the peaches

Picciano consumed were actually contaminated. The recall notice issued by




                                                                         A-3071-17T2
                                      11
Wawona only stated the products sold to certain distributors were "potentially"

contaminated.

      The medical evidence only indicated Picciano's symptoms were

"compatible" with a diagnosis of Listeria exposure, and his stool cultures were

not positive for Listeria. It was undisputed he suffered from pre-existing IBS

and the symptoms he experienced were also compatible with this condition.

Although Dr. Moaven's initial report listed six diagnoses, including Listeriosis,

the subsequent reports noted the condition was "presumed" and "not

documented."     Dr. Spira's report only stated Picciano's symptoms were

"compatible with an attack of febrile gastroenteritis secondary to Listeria."

Therefore, the record lacks competent evidence Picciano actually suffered from

Listeria exposure.

      Picciano's argument also fails to establish Costco is liable as a seller of

the allegedly contaminated peaches. He cites McGuinness v. Wakefern Corp.,

257 N.J. Super. 339 (1991) for the proposition that seller liability can be

imposed on the Costco defendants under the PLA.           However, the case is

inapposite because it did not address seller liability under the PLA.

      The PLA defines "product seller" as

            any person who, in the course of a business conducted
            for that purpose: sells; distributes; leases; installs;

                                                                         A-3071-17T2
                                      12
             prepares or assembles a manufacturer's product
             according to the manufacturer's plan, intention, design,
             specifications[,] or formulations; blends; packages;
             labels; markets; repairs; maintains or otherwise is
             involved in placing a product in the line of commerce.

             [N.J.S.A. 2A:58C-8.]

      N.J.S.A. 2A:58C-9(a) provides that "[i]n any product liability action

against a product seller, the product seller may file an affidavit certifying the

correct identity of the manufacturer of the product which allegedly caused the

injury, death[,] or damage." "Upon filing the affidavit . . ., the product seller

shall be relieved of all strict liability claims, subject to the provisions set forth

in subsection d. of this section." N.J.S.A. 2A:58C-9(b). A product seller is

immune from liability where it identifies the manufacturer of the defective

product, unless there are exceptional circumstances proving the product seller

exercised control contributing to the product's defect, knew or should have

known about the defect, or created the defect. N.J.S.A. 2A:58C-9(d).

      The Costco defendants have no seller liability because the record

demonstrated they did not alter or re-brand the product, or manipulate the

packaging in any way. Picciano conceded the Costco defendants did not alter

the peaches in any way, did not create or manufacture the product, and were not

aware of the contamination at the time of purchase. As we noted, Picciano


                                                                             A-3071-17T2
                                        13
conceded the alleged contamination occurred at the manufacturer's facility.

Therefore, none of the exceptions under N.J.S.A. 2A:58C-9(d) were met.

     Affirmed.




                                                                     A-3071-17T2
                                    14
