                                                                                 FILED
                                                                           Jun 19 2019, 8:59 am

                                                                                 CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Crystal G. Rowe                                            Marc S. Sedwick
      New Albany, Indiana                                        New Albany, Indiana

      Michael Wroblewski
      Adam S. Ira
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Golden Corral Corporation,                                 June 19, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CT-704
              v.                                                 Appeal from the Clark Circuit
                                                                 Court
      Kristina M. Lenart,                                        The Honorable Vicki L.
      Appellee-Plaintiff                                         Carmichael, Judge
                                                                 Trial Court Cause No.
                                                                 10C04-1310-CT-183



      Altice, Judge.


                                                 Case Summary


[1]   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


      Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019                              Page 1 of 27
      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 Lenart’s behalf?


                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 (IPLA)?


[2]   We affirm.


                                        Facts & Procedural History


[3]   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.



      Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019                Page 2 of 27
[4]   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.


[5]   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.


[6]   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,

      Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019            Page 3 of 27
      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. 1 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.


[7]   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.




      1
       Kenneth did not know what type of chicken the customer was complaining about—whether it was a
      chicken breast, thigh, or wing.

      Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019                          Page 4 of 27
[8]    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.


[9]    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 5, 2013.


[10]   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 reflux.


[11]   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


       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019          Page 5 of 27
       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.


[12]   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. 2 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



       2
        William Scheibe, whose title was New Store Opening Specialist for Golden Corral at the time he provided
       his deposition testimony, testified that food is allowed to be in the danger zone for a period of four hours,
       during which time frame the food “will not develop enough bacteria to be of a harmful nature.” Id. at 103.

       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019                                  Page 6 of 27
       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.


[13]   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.


[14]   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.




       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019          Page 7 of 27
       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 investigation.


[15]   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.


[16]   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

       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019          Page 8 of 27
       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 episodes of vomiting, which is related to

       consuming the undercooked chicken wings at Golden Corral on April 28,

       2013.” Appellant’s Appendix Vol. 2 at 60. Dr. Hutchinson further opined:


               [B]ut for consuming the undercooked chicken wings, which there
               is no dispute, there is no other medically supported reason to
               explain why [Lenart] experienced the violent episodes of
               vomiting, which vomiting caused [Lenart]’s umbilical hernia.
               Further it is known that there are food-borne pathogens, such as
               Staphlococcus [sic] and Bacillus cereus, which have an
               incubation period consistent with the onset of symptoms
               experienced by [Lenart].


       Id. at 61. Golden Corral moved to strike Dr. Hutchinson’s affidavit, or in the

       alternative, for an extension of time in order for Golden Corral to depose her.

       The trial court granted the latter request.


[17]   After taking Dr. Hutchinson’s deposition, Golden Corral again moved to strike

       her affidavit and deposition testimony on grounds that her opinion did not meet

       the reliability requirements of Ind. Evid. R. 702 for admissibility of an expert

       opinion. The trial court denied Golden Corral’s motion to strike, thereby

       indicating Dr. Huchinson’s proffered expert opinion as to the cause of Lenart’s

       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019          Page 9 of 27
       sickness and injury would be admissible at trial. 3 Golden Corral again

       challenged the admissibility of Dr. Hutchinson’s testimony and opinion as to

       causation by filing a motion in limine. The trial court denied Golden Corral’s

       motion in limine.


[18]   A four-day jury trial commenced on February 20, 2018. At trial, Dr.

       Hutchinson testified via her videotaped deposition and, later, provided in-

       person testimony as a rebuttal witness. Golden Corral did not object at trial to

       Dr. Hutchinson’s testimony on the basis it challenged her testimony in pretrial

       motions. At the end of Lenart’s case-in-chief, Golden Corral moved for

       judgment on the evidence, arguing that Lenart failed to present sufficient

       evidence to prove proximate cause. The court denied the motion. Golden

       Corral renewed its motion for judgment on the evidence after the close of all

       evidence, which motion the trial court again denied.


[19]   Prior to the case being given to the jury, Lenart tendered instructions on

       spoliation of evidence (based on Golden Corral’s failure to preserve the buffet

       temperature logs and Lenart’s daughter’s plain chicken wing that Kenneth took

       to the manager) and res ipsa loquitur. Over Golden Corral’s objection, the trial

       court gave Lenart’s tendered instructions to the jury.




       3
        Golden Corral asked the trial court to certify the denial of its motion to strike for interlocutory appeal,
       which the trial court denied.

       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019                                    Page 10 of 27
[20]   The jury ultimately returned a verdict in favor of Lenart and awarded her

       $240,000 in damages. On March 2, 2018, the trial court entered final judgment

       on the jury’s verdict. Golden Corral now appeals. Additional facts will be

       provided as necessary.


                                             Discussion & Decision


                                      1. Admission of Expert Testimony


[21]   Golden Corral argues that the trial court abused its discretion in allowing Dr.

       Hutchinson to testify as an expert regarding the cause of Lenart’s illness and

       subsequent injury because the scientific methodology employed by Dr.

       Hutchinson was not reliable and thus, did not meet the admissibility

       requirements of Evid. R. 702. Lenart argues that Golden Corral waived this

       issue for appellate review by failing to object at trial to Dr. Hutchinson’s direct

       (by deposition) and rebuttal (in person) testimony on the basis of Evid. R. 702.


[22]   It is well established that a trial court’s ruling on a motion in limine does not

       determine the ultimate admissibility of the evidence; that determination is made

       by the trial court in the context of the trial itself. Clausen v. State, 622 N.E.2d

       925, 927 (Ind. 1993). Case law makes clear that any objection to the challenged

       evidence must be reasserted at trial contemporaneously with the introduction of




       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019            Page 11 of 27
       such evidence or the issue is waived. 4 Shoultz v. State, 995 N.E.2d 647, 654-655

       (Ind. Ct. App. 2013), trans. denied; see also Raess v. Doescher, 883 N.E.2d 790,

       796-97 (Ind. 2008) (“Failure to object at trial to the admission of the evidence

       results in waiver of the error, notwithstanding a prior motion in limine.”).


[23]   Here, Golden Corral did not object at trial to Dr. Hutchinson’s direct or

       rebuttal testimony on grounds that her opinion testimony was based on

       unreliable scientific principles and not admissible under Evid. R. 702. Golden

       Corral therefore waived this argument for appellate review.


[24]   Waiver notwithstanding, we note that Golden Corral thoroughly presented its

       arguments challenging the admissibility of Dr. Hutchinson’s testimony through

       pretrial motions in limine and a motion to exclude. Specifically, Golden Corral

       argued that the methodology (i.e., differential diagnosis) employed by Dr.

       Hutchinson in arriving at her expert opinion that Lenart contracted a foodborne

       illness from eating undercooked chicken at Golden Corral was faulty because

       she did not rule out all other possible causes for Lenart’s sickness. Golden

       Corral also argues that Dr. Hutchinson’s conclusion as to causation was

       “improperly based primarily upon a temporal relationship (i.e., the fact that

       Lenart reported getting sick two hours after eating at Golden Corral).”

       Appellant’s Brief at 35. We are unpersuaded by Golden Corral’s argument that




       4
        An exception exists where a trial court assures the defense that his objection has been preserved. Vehorn v.
       State, 717 N.E.2d 869, 872-73 (Ind. 1999); Swanson v. State, 730 N.E.2d 205, 208 (Ind. Ct. App. 2000), trans.
       denied. Golden Corral does not argue that the trial court made any such assurances.

       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019                                 Page 12 of 27
       such undermined the reliability of the methodology employed by Dr.

       Hutchinson so as to render her testimony inadmissible.


[25]   Dr. Hutchinson engaged in a differential diagnosis, which is “a standard

       scientific technique accomplished by determining the possible causes of a

       patient’s symptoms and then eliminating each of these potential causes until

       isolating one that cannot be ruled out or by determining which of those that

       cannot be ruled out is the most likely.” Triplett v. USX Corp., 893 N.E.2d 1107,

       1118 (Ind. Ct. App. 2008) (quoting Lennon v. Norfolk and W. Ry. Co., 123

       F.Supp.2d 1143, 1153 (N.D. Ind. 2000)), trans. denied. A reliable differential

       diagnosis is performed after completing a physical examination, taking a

       medical history, and reviewing clinical tests, including laboratory tests. Id. Dr.

       Hutchinson described the manner in which she conducted a differential

       diagnosis—that she considered Lenart’s medical history and information

       provided by Lenart (i.e., that she had eaten raw chicken wings) and ruled out

       several possible causes, including certain physical ailments and congenital

       conditions. She acknowledged that she could not rule out all possible causes for

       Lenart’s sickness, 5 but that given her medical training and experience, it was

       “reasonable” to conclude that Lenart contracted an unidentified foodborne




       5
           For example, Dr. Hutchinson could not rule out certain non-foodborne bacterium or viruses.


       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019                                 Page 13 of 27
       pathogen 6 from eating the chicken wings at Golden Corral. Appellant’s Appendix

       Vol. 2 at 139.


[26]   As the trial court properly determined, Golden Corral’s challenges to Dr.

       Hutchinson’s testimony went to the weight of such testimony, not admissibility.

       See Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 461 (Ind. 2001) (noting

       that where the trial court is satisfied that the expert’s general methodology is

       based on reliable scientific principles, “the accuracy, consistency, and credibility

       of the expert’s opinions may properly be left to vigorous cross-examination,

       presentation of contrary evidence, argument of counsel, and resolution by the

       trier of fact”). Moreover, Golden Corral thoroughly cross-examined Dr.

       Hutchinson about the methodology she employed, pointed out for the jury

       what it perceived as shortcomings in the manner in which she reached her

       expert opinion, and presented its own expert witness who provided an opinion

       contrary to Dr. Hutchinson’s in some respects. The trial court did not abuse its

       discretion in allowing Dr. Hutchinson to provide her expert opinion as to

       causation of Lenart’s sickness.


                                                 2. Proximate Cause




       6
         Dr. Hutchinson acknowledged that there were numerous foodborne pathogens that applied to Lenart’s
       symptom profile, only two of which had incubation periods that correlated with the timing of Lenart’s illness
       relative to her consumption of the wings. She further testified that there is no way to know for sure which
       foodborne pathogen caused Lenart’s sickness without being able to test a stool sample or the chicken wing.

       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019                                Page 14 of 27
[27]   Golden Corral argues that the trial court erred in denying its motions for

       judgment on the evidence. A motion for judgment on the evidence challenges

       the legal sufficiency of the evidence. Walgreen Co. v. Hinchy, 21 N.E.3d 99, 106

       (Ind. Ct. App. 2014), trans. denied (2015). When reviewing a trial court’s ruling

       on a judgment on the evidence, we apply the same standard as the trial court.

       Kimbrough v. Anderson, 55 N.E.3d 325, 336 (Ind. Ct. App. 2016), trans. denied.

       “We may not substitute our judgment for that of the jury on questions of fact

       nor should a motion for judgment on the evidence be granted because the

       evidence preponderates in favor of the moving party.” Id. Instead, we

       determine only whether any reasonable evidence exists to support the

       nonmovant’s claim and, if so, whether the inference supporting the claim can

       be drawn without undue speculation. Id. The motion should be granted only

       where there is no substantial evidence to support an essential issue in the case.

       Solnosky v. Goodwell, 892 N.E.2d 174, 181 (Ind. Ct. App. 2008). “If there is

       evidence that would allow reasonable people to differ as to the result, judgment

       on the evidence is improper.” Id.


[28]   Here, Lenart claimed that Golden Corral was negligent in the manner in which

       it prepared and served its barbeque chicken wings. To establish negligence,

       Lenart was required to show that Golden Corral (1) owed her a duty of care; (2)

       breached that duty; and that (3) she suffered injury proximately caused by the

       breach. See Hassan v. Begley, 836 303, 307 (Ind. Ct. App. 2005). Golden Corral

       argues that Lenart did not satisfy her burden to establish that her symptoms and

       injuries were proximately caused by Golden Corral.

       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019        Page 15 of 27
[29]   Golden Corral first argues that “the record is devoid of any scientifically reliable

       evidence.” Appellant’s Brief at 42. Golden Corral also argues that Lenart’s

       entire case was based on circumstantial evidence between the timing of her

       lunch and the manifestation of her symptoms, which Golden Corral asserts

       amounts to nothing more than speculation. Golden Corral’s argument in this

       regard is essentially a challenge to the weight to be afforded Dr. Hutchinson’s

       testimony on causation.


[30]   Dr. Hutchinson testified via video deposition that she engaged in a differential

       diagnosis and that based on information provided by Lenart, Lenart’s medical

       history, as well as her own medical training and experience, she was of the

       opinion that Lenart contracted one of a couple food pathogens having an

       incubation period consistent with the timeframe between when Lenart

       consumed the barbeque chicken wings and when she became sick. Dr.

       Hutchinson acknowledged that there was no way to definitively know what

       foodborne pathogen Lenart was exposed to but opined that her opinion was

       reasonable and appropriate given the available information. Lenart presented

       sufficient evidence as to the element of proximate cause to withstand Golden

       Corral’s motions for judgment on the evidence. The trial court did not abuse its

       discretion in denying such motions.


                                              3. Final Instructions


[31]   Golden Corral argues that the trial court abused its discretion by instructing the

       jury, over its objection, on spoliation and the doctrine of res ipsa loquitur.


       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019            Page 16 of 27
       Instructions serve to inform the jury of the law applicable to the facts presented

       at trial, enabling it to comprehend the case sufficiently to arrive at a just and

       correct verdict. Blocher v. DeBartolo Properties Management, Inc., 760 N.E.2d 229,

       235 (Ind. Ct. App. 2001), trans. denied. In reviewing a trial court’s decision to

       give a tendered instruction, we consider 1) whether the instruction correctly

       states the law, 2) whether there is evidence in the record supporting the

       instruction, and 3) whether the substance of the instruction is covered by other

       instructions. Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891, 893 (Ind. 2002).

       The trial court has sole discretion in instructing the jury and thus, we will

       reverse on the last two issues only when the instructions amount to an abuse of

       discretion. Id. A party seeking a new trial on the basis of an improper jury

       instruction must show a reasonable probability that its substantial rights have

       been adversely affected. Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939,

       944 (Ind. 2001). In other words, “[a]n erroneous instruction merits reversal if it

       could have formed the basis for the jury’s verdict.” Fleetwood Enter., Inc. v.

       Progressive N. Ins. Co., 749 N.E.2d 492, 495 (Ind. 2001).


                                                   A. Spoliation


[32]   We first consider whether the court properly gave an instruction on spoliation.

       Over Golden Corral’s objection, the trial court gave Final Instruction No. 9 to

       the jury:


               If Golden Corral fails to produce documents under Golden
               Corral’s exclusive control, such as the temperature logs for the
               barbecue chicken wings Ms. Lenart consumed and/or the plain

       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019           Page 17 of 27
               chicken wing that Kenneth Lenart took to the manager of
               Golden Corral on April 28, 2013, you may conclude that these
               temperature logs and/or plain chicken wing, that Golden Corral
               could have produced, would have been unfavorable to Golden
               Corral’s case.


       Appellant’s Appendix Vol. 5 at 24. On appeal, Golden Corral argues that the trial

       court abused its discretion in giving this instruction because there is no evidence

       that it “intentionally” destroyed evidence. Appellant’s Brief at 52 (emphasis in

       original). Golden Corral also argues that the instruction was “irrelevant and

       not supported by the evidence.” Id.


[33]   The party raising a claim of spoliation has the burden of proving that there was

       a duty to preserve the evidence on the part of the alleged spoliator. Glotzbach v.

       Froman, 854 N.E.2d 337, 338-39 (Ind. 2006) (noting that duty to preserve

       evidence may be assumed voluntarily or imposed by statute, regulation,

       contract, or other circumstances). The duty to preserve evidence occurs when a

       first-party claimant “knew, or at the very least, should have known, that

       litigation was possible, if not probable.” N. Ind. Pub. Serv. Co. v. Aqua Envtl.

       Container Corp., 102 N.E.3d 290, 301 (Ind. Ct. App. 2018).


[34]   “In Indiana, the exclusive possession of facts or evidence by a party, coupled

       with the suppression of the facts or evidence by that party, may result in an

       inference that the production of the evidence would be against the interest of

       the party which suppresses it.” Porter v. Irvin’s Interstate Brick & Block Co., Inc.,

       691 N.E.2d 1363, 1364-1365 (Ind. Ct. App. 1998) (citing Westervelt v. Nat’l Mfg.

       Co., 69 N.E. 169, 172 (Ind. App. 1903)). This rule is typically applied “to a
       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019             Page 18 of 27
       party which has suppressed evidence believed to be in its control at the time of

       the law suit.” Id. at 1365. Like we held in Porter, “we see no reason why [this

       rule] should not be applied where the party spoliates evidence prior to the

       commencement of a law suit that the party knew or should have known was

       imminent.” Id.


[35]   Here, we agree with Lenart that Golden Corral was immediately on notice of

       her illness and was contacted by her attorney within the ninety-day period

       during which Golden Corral retained its temperature logs. The buffet

       temperature logs were likewise relevant to the issue of whether Lenart

       contracted a foodborne pathogen from the barbeque chicken wings she

       consumed as the chicken wings had been prepared and served on Golden

       Corral’s buffet. Under these circumstances, Golden Corral had a duty to

       maintain such records. Because Golden Corral destroyed the buffet

       temperature logs despite its knowledge and duty, the spoliation instruction was

       warranted.


[36]   Golden Corral also argues that the spoliation instruction was improper because

       it had no duty to preserve the plain chicken wing that was brought to the

       manager’s attention. We agree with Golden Corral that Lenart has not

       established that Golden Corral had a duty to keep the plain chicken wing that

       was allegedly undercooked. Notwithstanding, Golden Corral has not

       established a reasonable probability that such affected its substantial rights. To

       be sure, Lenart presented direct and circumstantial evidence from which the



       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019         Page 19 of 27
       jury could have reasonably reached the same conclusion permitted by the

       negative inference instruction.


                                               B. Res Ipsa Loquitur


[37]   We next consider whether the instruction on the doctrine of res ipsa loquitur was

       warranted given the facts of this case. The trial court, over Golden Corral’s

       objection, instructed the jury with regard to the elements of res ipsa loquitur in

       Final Instruction No. 19, which provided:


               There are certain situations in which the nature of an incident
               and the circumstances surrounding it lead to the reasonable belief
               that it would not have occurred unless someone did not use
               reasonable care.


               If Kristina Lenart proves all of the following by the greater
               weight of the evidence:


               1. Mrs. Lenart was injured as a result of consuming the under
               cooked chicken wings;


               2. Only Golden Corral controlled the undercooked chicken
               wings; and


               3. Under normal circumstances Mrs. Lenart would not have
               gotten ill unless Golden Corral was negligent.


               Then you may infer that the incident resulted from Golden
               Corral’s negligence.




       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019           Page 20 of 27
                You may consider this inference with all of the other evidence in
                arriving at your verdict.


       Appellant’s Appendix Vol. 5 at 34. This instruction was derived from Indiana

       Civil Pattern Jury Instruction 325 and purports to instruct the jury on the

       doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur is a qualified

       exception to the general rule that the mere fact of injury will not create an

       inference of negligence. Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App.

       2005).


[38]   Res ipsa loquitur literally means, “the thing speaks for itself.” Narducci v. Tedrow,

       736 N.E.2d 1288, 1292 (Ind. Ct. App. 2000). The doctrine of res ipsa loquitur is

       a rule of evidence that “permits an assumption that in some situations an

       occurrence is so unusual that, absent a reasonable justification or explanation,

       the person in control of the situation should be held responsible.” Hale v. SS

       Liquors, Inc., 956 N.E.2d 1189, 1194 (Ind. Ct. App. 2011). Specifically, this

       court has held that:


                Under the doctrine of res ipsa loquitur, negligence may be inferred
                where 1) the injuring instrumentality is shown to be under the
                management or exclusive control of the defendant or his
                servants, and 2) the accident is such as in the ordinary course of
                things does not happen if those who have management of the
                injuring instrumentality use proper care.


       Vogler v. Dominguez, 624 N.E.2d 56, 61 (Ind. Ct. App. 1993), trans. denied.




       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019             Page 21 of 27
[39]   Application of the doctrine does not in any way depend on the standard of care

       imposed by law but, rather, depends entirely upon the nature of the occurrence

       out of which the injury arose. Narducci, 736 N.E.2d at 1292. The central

       question involved in the use of the res ipsa loquitur doctrine is whether the

       incident more probably resulted from the defendant’s negligence rather than

       from some other cause. K-Mart Corp. v. Gipson, 563 N.E.2d 667, 669 (Ind. Ct.

       App. 1990). As we have before stated:


               When presented with a request for a res ipsa loquitur instruction,
               the trial court’s duty is to determine whether the plaintiff
               produced evidence from which the jury could reasonably
               conclude the existence of the underlying elements of exclusive
               control and probability of negligence. This is a sufficiency
               question. There only need be evidence and reasonable inferences
               therefrom, which, when viewed in the light most favorable to the
               proponent, would support the [theory] contained in the
               instruction. If there is no such evidence, the instruction is
               properly refused. On the other hand, if there is evidence from
               which a jury could reasonably find the existence of the elements,
               then the conditional res ipsa loquitur instruction, which merely
               tells the jury that if they do find the existence of these elements
               then they may draw the inference of negligence, must be given.


       Sharp v. LaBrec, Inc., 642 N.E.2d 990, 993 (Ind. Ct. App. 1994), trans. denied.


[40]   It is not necessary for a plaintiff to exclude every other possibility other than the

       defendant’s negligence as a cause for the plaintiff’s injury. Merriman v. Kraft,

       249 N.E.2d 485, 487 (Ind. 1969). A plaintiff relying upon the doctrine “may

       show that the event or occurrence was more probably the result of negligence

       by relying upon common sense and experience or by expert testimony.” Gold v.

       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019          Page 22 of 27
       Ishak, 720 N.E.2d 1175, 1181 (Ind. Ct. App. 1999) (citing Shull v. B.F. Goodrich

       Co., 477 N.E.2d 924, 928 (Ind. Ct. App. 1985), trans. denied), trans. denied

       (emphasis omitted). We further note that the quantum of evidence necessary

       for the giving of an instruction “is deliberately set at a relatively low level in

       order to assure the right of parties to have the trier of fact determine factual

       disputes thus preserving the constitutional rights to a trial by jury.” Shull, 477

       N.E.2d at 927-28.


[41]   Golden Corral argues that Lenart cannot identify the instrumentality that

       caused her illness/injury or demonstrate that such instrumentality was within

       Golden Corral’s exclusive control. We disagree. Lenart’s claim was that she

       suffered from food poisoning after she consumed undercooked barbeque

       chicken wings at Golden Corral. She thus identified the instrumentality as the

       chicken wing she consumed.


[42]   The facts most favorable to Lenart are that she had no medical history of

       abdominal problems, she was feeling fine before she went to Golden Corral,

       and within two hours of eating barbeque chicken wings at Golden Corral she

       became violently ill with diarrhea and intense vomiting. Further, there are two

       foodborne pathogens that have incubation periods that correlate with the onset

       of Lenart’s symptoms, one of which (staphylococcus) is also associated with

       poultry. Lenart also presented evidence that plain chicken wings exclusively

       prepared and served by Golden Corral were undercooked and that undercooked

       chicken can be contaminated with a foodborne pathogen. A reasonable

       inference could be drawn that the barbeque chicken wings Lenart ate were

       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019            Page 23 of 27
       similarly undercooked and contaminated. Lenart’s expert witness opined that

       “[w]hen you have a temporal relationship” between food consumption and the

       development of symptoms like Lenart experienced, it “seems reasonable and

       appropriate” that Lenart’s vomiting resulted from eating undercooked chicken

       wings contaminated with a foodborne pathogen and that such vomiting caused

       her hernia. Appellant’s Appendix Vol. 2 at 139.


[43]   Once a plaintiff has presented sufficient evidence to bring himself within the

       operation of the doctrine, the burden of going forward with the evidence to

       explain the accident is cast upon the defendant. Hammond v. Scot Lad Foods,

       Inc., 436 N.E.2d 362, 364 (Ind. Ct. App. 1982). Here, Golden Corral had the

       opportunity to defend itself and did offer other possible explanations for

       Lenart’s sickness (i.e., virus or foodborne pathogen with longer incubation

       period that Lenart contracted before she visited Golden Corral) and resulting

       injury. However, even though the defendant comes forward with an

       explanation of the accident and evidence of his careful inspection, tests, and

       due care, the inference of negligence drawn from the facts does not disappear

       from the case, but instead remains, and is placed upon the scales to be weighed

       by the trier of fact along with any and all explanations of the defendant, as well

       as all of the other evidence. Id.


[44]   In short, Lenart presented sufficient evidence from which a jury could

       reasonably find the existence of the elements of res ipsa loquitur. In such case,

       “the conditional res ipsa loquitur instruction, which merely tells the jury that if

       they do find the existence of these elements then they may draw the inference of

       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019           Page 24 of 27
       negligence, must be given.” See Sharp, 642 N.E.2d at 993. The trial court did

       not abuse its discretion in instructing the jury on the doctrine of res ipsa loquitur.


                                                        4. IPLA


[45]   Golden Corral argues that the trial court erred in allowing the case to be tried as

       a negligence action as Lenart’s claim is governed exclusively by the IPLA. 7

       Specifically, Golden Corral maintains that the barbeque chicken wing (the

       claimed defective product) is personalty and that it is a manufacturer by virtue

       of the preparation and cooking process. Lenart disagrees, asserting that her

       visit to Golden Corral predominately involved the sale of a service. Lenart also

       argues that Golden Corral does not qualify as a manufacturer so as to fall

       within the ambit of the IPLA. The trial court agreed with Lenart insofar as it

       concluded that Golden Corral was not a manufacturer.


[46]   The IPLA “governs all actions that are: (1) brought by a user or consumer; (2)

       against a manufacturer or seller; and (3) for physical harm caused by a product;

       regardless of the substantive legal theory or theories upon which the action is

       brought.” Ind. Code § 34-20-1-1; Ind. Code § 34-6-2-115 (defining “product

       liability action”).


[47]   Under the IPLA, a manufacturer is “a person or an entity who designs,

       assembles, fabricates, produces, constructs, or otherwise prepares a product or a




       7
         Prior to trial, Golden Corral unsuccessfully moved in limine to exclude any evidence alleging that it failed
       to exercise reasonable care or was negligent because Lenart’s claim was governed exclusively by the IPLA.

       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019                                  Page 25 of 27
       component part of a product before the sale of the product to a user or

       consumer.” I.C. § 34-6-2-77(a). Golden Corral asserts that its control over the

       food preparation and cooking process makes it a manufacturer of food that it

       serves in its restaurant. See I.C. § 34-6-2-77(a)(2). In the alternative, Golden

       Corral asserts that it is deemed a manufacturer because it is a seller that alters or

       modifies the product in a significant manner before selling it to the ultimate

       consumer. See I.C. § 34-6-2-77(a)(3). Specifically, Golden Corral claims that

       through the cooking process, it turns inedible, raw chicken into a product that is

       edible and delicious. We are not persuaded.


[48]   There are no Indiana cases that directly address whether a restaurant is a

       manufacturer for purposes of the IPLA. We therefore look to cases in which

       we have found an entity to be a manufacturer. In Lenhardt Tool & Die Co. v.

       Lumpe, 703 N.E.2d 1079, 1085 (Ind. Ct. App. 1998), trans. denied, this court

       stated that “[w]here an entity reconditions, alters, or modifies a product or raw

       material to the extent that a new product has been introduced into the stream of

       commerce, the entity is a manufacturer and provider of products under the

       [IPLA].” The court noted that a plant would ship solid blocks of metal to

       Lenhardt Tool & Die (LTD) with drawings and specifications. LTD would

       then machine the block of metal into molds per the designs found in the

       drawings and specifications. We held that “[LTD] transformed the metal block

       into ‘a new product’ that is substantially different from the raw material used.

       Therefore, it has introduced a new product into the stream of commerce and

       provided products to [the plant], not mere services.” Id.


       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019          Page 26 of 27
[49]   In this case, Golden Corral prepared and cooked the raw chicken wings it

       received from its distributor by placing them in a fryer at a set temperature for a

       set amount of time. At the end of the cooking process, the chicken wing was

       still a chicken wing, although now (if cooked properly) safe for human

       consumption. The cooking process did not substantially alter the chicken wing

       or create a new product. The trial court did not err in concluding that Lenart’s

       action was not controlled by the IPLA.


[50]   Judgment affirmed.


       Najam, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-704 | June 19, 2019         Page 27 of 27
