                   IN THE COURT OF APPEALS OF TENNESSEE
                       WESTERN SECTION AT NASHVILLE
                ______________________________________________

BETTY BURGESS and CARTER
BURGESS, Individually and as
Parents an Next Friend of Crockett
Burgess, a minor,

      Plaintiffs-Appellants,
                                                    Coffee Circuit No.27,148
Vs.                                                 C.A. No.01A01-9609-CV-00436

RICK FLOYD and KERNEY CISCO
d/b/a TULLAHOMA CEE BEE STORE,

      Defendants-Appellees.
____________________________________________________________________________

                   FROM THE COFFEE COUNTY CIRCUIT COURT
                    THE HONORABLE JOHN W. ROLLINS, JUDGE



                   Doyle E. Richardson; Rogers, Richardson & Duncan
                             of Manchester, For Appellants

                     John R. Rucker, Jr.; Rucker, Rucker & Coleman
                             of Murfreesboro, For Appellees




                                        AFFIRMED

                                       Opinion filed:



                                FILED
                                   May 14, 1997

                                Cecil W. Crowson          W. FRANK CRAWFORD,
                               Appellate Court Clerk      PRESIDING JUDGE, W.S.




CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE
        This is a product liability case. Plaintiffs, Betty Burgess and Carter Burgess (the

Burgesses), individually and as parents and next friend of Crockett Burgess, a minor, appeal the

trial court’s order granting summary judgment in favor of defendants, Rick Floyd and Kerney

Cisco d/b/a/ Tullahoma Cee Bee Store (Cee Bee Store).

        On February 11, 1990, the Burgesses purchased two and a half cases of ProSobee from

the Cee Bee Store for their eight-month-old son, Crockett Burgess, with a voucher provided to

them by the Women, Infants and Children’s Supplemental Food Program. ProSobee is a

concentrated baby formula manufactured by Mead Johnson & Company and distributed to the

Cee Bee Store by C.B. Ragland & Company. Rick Floyd and Kerney Cisco are the owners and

operators of the Cee Bee Store. The Burgesses first finished two cans of ProSobee left from a

previous purchase. On February 13, 1990, the Burgesses went to visit Mrs. Burgess’s mother.

While at her mother’s house, Mrs. Burgess prepared a can of the ProSobee formula that she

bought from the Cee Bee Store two days earlier. Mrs. Burgess did not check the expiration date

on the ProSobee can and, after preparing the ProSobee, threw the can into her mother’s trash.

The ProSobee looked and appeared normal. It was white and did not have any lumps. Mrs.

Burgess shook up the can, opened it, and poured the ProSobee into a jug. She then mixed in

distilled water that she kept in the refrigerator, poured the mixture into individual bottles, put the

nipples on the bottles, and put the bottles into the refrigerator. Before feeding Crockett, she put

his bottle in a bowl and ran warm tap water over the bottle to warm it up. Crockett drank the

whole bottle at about 11:00 a.m. and then fell asleep. When he woke up from his nap a couple

of hours later, he began throwing up and had diarrhea. The Burgesses ate dinner and then

decided to take Crockett home. They stopped off at the Cee Bee store to buy cigarettes. Mrs.

Burgess told the cashier that Crockett was not feeling well, and the cashier told her to go home

and check the baby formula. Mrs. Burgess went home, checked the unopened cans of formula

stored under her sink, and found that some of the cans had an April 1986 expiration date. After

speaking with Dr. Shirley Bard, Crockett’s pediatrician, the Burgesses took Crockett to the

Harton Regional Medical Center where he was admitted and remained for six days. Crockett

was diagnosed with dehydration due to gastroenteritis and diarrhea and tested positive for

rotavirus, a virus transmitted by humans. He was transferred to Vanderbilt University Medical

Center, and his diagnosis upon discharge was gastroenteritis.


                                                  2
       On February 8, 1991, the Burgesses filed suit against Mead Johnson & Company (Mead

Johnson), C.B. Ragland & Company, and Rick Floyd and Kerney Cisco d/b/a Tullahoma Cee

Bee Store alleging that the baby formula was spoiled, poisonous, and contaminated and that

Crockett suffers from developmental deficits and delays as a result of ingesting the outdated

ProSobee. The complaint relies on the theories of res ipsa loquitur, strict liability, negligence,

and breach of warranty. All of the defendants filed motions for summary judgment, and on May

27, 1994, the trial court granted summary judgment on the issue of res ipsa loquitur as to all

defendants and on strict liability as to defendants C.B. Ragland Company and the Cee Bee Store.

The trial court also overruled the defendants’ motions on the issues of negligence and breach of

the implied warranty of merchantability. On June 21, 1994, the Burgesses voluntarily dismissed

their lawsuit. The Burgesses refiled their suit against the same defendants on May 26, 1995 and,

as to the defendants in this appeal, rely on the theories of negligence and breach of implied

warranty of merchantability. On May 1, 1996, all of the defendants again filed motions for

summary judgment, and after a hearing on July 3, 1996, an order was entered on July 11, 1996

granting summary judgment in favor of all the defendants. The Burgesses appeal the trial court’s

decision only as to defendants Rick Floyd and Kerney Cisco d/b/a Tullahoma Cee Bee Store.

       The Burgesses basically present one issue for review: Whether the trial court erred in

granting summary judgment in favor of defendants Rick Floyd and Kerney Cisco d/b/a

Tullahoma Cee Bee Store on the issues of negligence and breach of the implied warranty of

merchantability.

       A trial court should grant a motion for summary judgment only if the movant

demonstrates that there are no genuine issues of material fact and that the moving party is

entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.03; Byrd v. Hall, 847 S.W.2d 208,

210 (Tenn. 1993); Dunn v. Hackett, 833 S.W.2d 78, 80 (Tenn. App. 1992). The party moving

for summary judgment bears the burden of demonstrating that no genuine issue of material fact

exists. Byrd, 847 S.W.2d at 210. On a motion for summary judgment, “the court must take the

strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable

inferences in favor of that party, and discard all countervailing evidence.” Id. at 210-11. In

Byrd, the Tennessee Supreme Court stated:

               Once it is shown by the moving party that there is no genuine


                                                3
                 issue of material fact, the nonmoving party must then
                 demonstrate, by affidavits or discovery materials, that there is a
                 genuine, material fact dispute to warrant a trial. In this regard,
                 Rule 56.05 provides that the nonmoving party cannot simply rely
                 upon his pleadings but must set forth specific facts showing that
                 there is a genuine issue of material fact for trial.

Id. at 211 (emphasis in original)(citations omitted). Where a genuine dispute exists as to any

material fact or as to the conclusions to be drawn from those facts, a court must deny a motion

for summary judgment. Id. (citing Dunn, 833 S.W.2d at 80).

       The Burgesses assert that the trial court erred in granting summary judgment because

there is a genuine issue of material fact concerning the liability of appellees.

       Product liability actions in this state are governed by the Tennessee Products Liability

Act of 1978. T.C.A. §§ 29-28-101 et seq. (1980 & Supp. 1996). Section 29-28-105 provides

the following:

                 29-28-105.      Determination of defective or dangerous
                 condition. - (a) A manufacturer or seller of a product shall not be
                 liable for any injury to person or property caused by the product
                 unless the product is determined to be in a defective condition or
                 unreasonably dangerous at the time it left the control of the
                 manufacturer of seller.

                 (b) In making this determination the state of scientific and
                 technological knowledge available to the manufacturer or seller
                 at the time the product was placed on the market, rather than at
                 the time of injury, is applicable. Consideration is given also to
                 the customary designs, methods, standards and techniques of
                 manufacturing, inspecting and testing by other manufacturers or
                 sellers of similar products.

                 (c) The provisions of this section do not apply to an action based
                 on express warranty or misrepresentation regarding the chattel.

                 (d) A product is not unreasonably dangerous because of failure to
                 adequately warn of a danger or hazard that is apparent to the
                 ordinary user.

T.C.A. § 29-28-105 (1980). As this Court stated in Fulton v. Pfizer Hospital Products Group,

Inc., 872 S.W.2d 908 (Tenn. App. 1993):

                 Plaintiff must prove that the product was defective, regardless of
                 the legal theory upon which he relies.

                        Indeed, it makes no difference whether the
                        complaint is couched in terms of negligence, strict
                        liability, or breach of warranty, it has generally
                        been held in the State of Tennessee that in order
                        for a plaintiff to recover under any theory of
                        product liability, the plaintiff must establish that
                        the product was defective [or] unreasonably


                                                 4
                       dangerous at the time the product left the control
                       of the manufacturer.

Id. at 911 (citations omitted). Section 29-28-102(2) provides the following definition of a

defective condition:

               (2) “Defective condition” means a condition of a product that
               renders it unsafe for normal or anticipatable handling and
               consumption.

T.C.A. § 29-28-102(2) (1980). The Burgesses assert that the can of ProSobee ingested by

Crockett was defective and that they are entitled to recovery.

        In support of its motion for summary judgment, Cee Bee Store relies on the affidavits

submitted in support of its co-defendants as well as the affidavit submitted by Rick Floyd.

William R. Cross, the Director of Quality Assurance at Mead Johnson, submitted an affidavit

stating that he reviewed the records documenting the testing of the batch of ProSobee alleged

by the Burgesses to be defective. Cross stated that FDA regulations require that all sterile

products, including baby formula, be manufactured to be free from contaminants such as bacteria

and other substances. He further stated that the FDA regulations require that the product be

sealed in a container that prevents the entry of microorganisms or other harmful substances when

normally stored so that the products remains sterile after processing and until the container is

opened. Cross stated that ProSobee is manufactured as a sterile product under FDA regulations

and that the sterility of the product is not affected in any manner by its “use by” date or

expiration date. A can of ProSobee that is past its expiration date will maintain its labeled

amounts of minerals, protein, fat, and carbohydrates, but it may not provide the minimum levels

of vitamins set forth on the label. It is for these reasons that the Mead Johnson stamps an

expiration on ProSobee baby formula. Cross further stated that a properly stored, unopened can

of ProSobee consumed even four years beyond its expiration date will not grow bacteria or

organisms harmful to a child and will not spoil or deteriorate to the extent that harm to an infant

will result.

        Dr. Donna Seger, a toxicologist and head of the Poison Control Center at Vanderbilt

University Medical Center, also submitted an affidavit in support of Mead Johnson. Dr. Seger

stated that it was her opinion, based on a reasonable degree of medical certainty, that a can of

ProSobee four years past its “use by” date would not contain poisonous toxins.



                                                5
       Dr. George L. Baker, Vice President and Medical Director for Mead Johnson, also

submitted an affidavit in support of Mead Johnson, stating that other than not satisfying the

vitamin allowance as stated on the container, a single feeding of ProSobee past its expiration date

will not otherwise affect or harm an infant. He further stated that it was his opinion, to a

reasonable degree of medical certainty, that ingesting a can of ProSobee outdated by four years

would not cause gastroenteritis or diarrhea.

       Rick Floyd also submitted an affidavit stating that he checked the dates of all the

products when he bought the Cee Bee Store in November of 1988 and that all of the out-of-date

products were removed from the store. He also stated that ProSobee is a fast moving product,

that it is difficult to keep the formula in stock, and that he has run out of the formula on many

occasions.

       The defendants also submitted the deposition of Dr. Shirley Bard, Crockett’s pediatrician,

who stated that she could not say to a reasonable degree of medical certainty whether the water

mixed with the ProSobee, the jug used to mix the water and the ProSobee, or a “bug” caused

Crockett’s illness. She further stated that she had no medical or scientific proof that ProSobee

develops toxins if past its expiration date. In addition, Dr. Bard admitted that the test performed

on one of the out-of-date ProSobee cans supplied by the Burgesses was negative for bacteria.

       In response to the defendants’ motions for summary judgment, the Burgesses submitted

the affidavit of Dr. Bard, which incorporated a transcript of an interview in which she stated that

she believes Crockett’s illness was caused by the ProSobee because “the proximity is just there.”

The Burgesses also submitted Dr. Bard’s medical records relating to Crockett’s illness and the

complaints filed with the United States Food & Drug Administration (FDA) of four infants who

became ill after ingesting outdated cans of ProSobee.

       The Burgesses did not set forth specific facts to prove that the particular can of ProSobee

ingested by Crockett was past its expiration date. Even assuming that Crockett ingested a can

of ProSobee that was past its expiration date, the Burgesses offered no proof that an outdated can

of ProSobee is defective. As this Court asserted in Whaley v. Rheem Manufacturing Co., 900

S.W.2d 296 (Tenn. App. 1995), mere proof of an injury is not enough by itself to prove the

existence of a defect. Id. at 299. Thus, the mere fact that Crockett became ill after drinking an

out of date can of ProSobee is not enough in and of itself to establish that an out of date can of


                                                6
ProSobee is defective. In addition, even if the complaints of similar illnesses on file with the

FDA would be admissible to prove that an outdated can of ProSobee is defective, the Burgesses

failed to set forth any specific facts to establish that Crockett’s illness was caused by ingesting

an outdated can of ProSobee.

       In summary, we conclude that the Burgesses did not establish that an outdated can of

ProSobee is a defective product under T.C.A. § 29-20-102 or that Crockett’s illness was caused

by ingesting an outdated can of ProSobee. There are no genuine issues of material fact, and

appellees are entitled to judgment as a matter of law.

       Accordingly, the order of the trial court is affirmed. Costs of this appeal are assessed

against appellants.

                                                       _________________________________
                                                       W. FRANK CRAWFORD,
                                                       PRESIDING JUDGE, W.S.
CONCUR:

____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




                                                7
