Case 1:20-cv-02142-TWP-TAB Document 23 Filed 10/09/20 Page 1 of 10 PageID #: 62
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`INDIANAPOLIS DIVISION
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`MARY BUSSING,
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`Plaintiff,
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`TYSON FOODS, INC. and
`WAL-MART STORES EAST, LP,
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`Defendants.
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`) Case No. 1:20-cv-2142-TWP-TAB
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`DEFENDANT TYSON FOODS, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO
`PLAINTIFF’S COMPLAINT FOR DAMAGES
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`Defendant, Tyson Foods, Inc. (“Tyson”), by counsel, for its answers and affirmative
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`defenses to Plaintiff’s Complaint for Damages, states as follows:
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`Parties, Jurisdiction, and Venue
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`1.
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`Plaintiff, Mary Bussing, is a citizen of the State of Indiana, residing in Indianapolis,
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`Indiana in Marion County.
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`ANSWER: Based on information and belief, Defendant Tyson admits the material
`allegations of rhetorical paragraph 1 of Plaintiff’s Complaint.
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`2.
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`Defendant Tyson Foods, Inc. (“Tyson”) is incorporated under the laws of the State
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`of Delaware, with its Corporate Office located at 2200 W. Don Tyson Parkway, Springdale,
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`Arkansas making it a citizen of Arkansas.
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`ANSWER: Defendant Tyson admits the material allegations of rhetorical paragraph
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`2 of Plaintiff’s Complaint for Damages.
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`Defendant Tyson was a corporation doing business and selling/producing products
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`3.
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`in the State of Indiana.
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`ANSWER: Defendant Tyson admits the material allegations of rhetorical paragraph
`3 of Plaintiff’s Complaint for Damages. However, Defendant Tyson denies any liability to
`Plaintiff for the incident, injuries and damages alleged in Plaintiff’s Complaint.
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`4.
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`Defendant Wal-Mart Stores East, LP (“Walmart”) is incorporated under the laws
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`of the State of Delaware, with its principal place of business at 708 SW 8th Street, Bentonville,
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`Arkansas, making it a citizen of Arkansas.
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`ANSWER: Defendant Tyson admits the material allegations of rhetorical paragraph
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`4 of Plaintiff’s Complaint.
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`Defendant Walmart did business in Indiana operating a Walmart Neighborhood
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`5.
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`Market (Facility #5804) located at 5835 W. 10th Street, Indianapolis, IN 46224 (hereinafter
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`“Neighborhood Market”).
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`ANSWER: Defendant Tyson admits the material allegations of rhetorical paragraph
`5 of Plaintiff’s Complaint. However, Defendant Tyson denies any liability to Plaintiff for the
`incident, injuries and damages alleged in Plaintiff’s Complaint.
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`Defendant Tyson sold its products at Defendant Walmart’s Neighborhood Market.
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`6.
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`ANSWER: In response to the material allegations of rhetorical paragraph 6 of
`Plaintiff’s Complaint, Defendant Tyson admits that Tyson products were sold at Walmart
`Neighborhood Market #5804. However, Defendant Tyson denies any liability to Plaintiff for
`the incident, injuries and damages alleged in Plaintiff’s Complaint.
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`7.
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`This Court has jurisdiction pursuant to 28 U.S.C. § 1332 in that there is complete
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`diversity of citizenship and the amount in controversy exceeds $75,000.00, exclusive of interest
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`and costs.
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`ANSWER: Defendant Tyson admits the material allegations of rhetorical paragraph
`7 of Plaintiff’s Complaint. However, Defendant Tyson denies any liability to Plaintiff for the
`incident, injuries and damages alleged in Plaintiff’s Complaint.
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`Summary of Facts
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`8.
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`On September 12, 2018, Plaintiff, Mary Bussing, purchased Tyson ground beef
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`(hereinafter “the Food”) from the Walmart Neighborhood Market.
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`ANSWER: Defendant Tyson is without knowledge sufficient to form a belief as to
`the truth of the material allegations of rhetorical paragraph 8 of Plaintiff’s Complaint. To
`the extent further response is contemplated, Defendant Tyson denies any liability to Plaintiff
`for the incident, injuries and damages alleged in Plaintiff’s Complaint.
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`9.
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`On September 13, 2018, Plaintiff, Mary Bussing prepared the Food she had
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`purchased the day before.
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`ANSWER: Defendant Tyson is without knowledge sufficient to form a belief as to
`the truth of the material allegations of rhetorical paragraph 9 of Plaintiff’s Complaint. To
`the extent further response is contemplated, Defendant Tyson denies any liability to Plaintiff
`for the incident, injuries and damages alleged in Plaintiff’s Complaint.
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`10.
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`On September 15, 2018, following consumption of the food, Mary Bussing began
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`having health issues and was admitted into the hospital the following day and remained there for
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`six (6) days for medical treatment.
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`ANSWER: Defendant Tyson is without knowledge sufficient to form a belief as to the
`truth of the material allegations of rhetorical paragraph 10 of Plaintiff’s Complaint. To the
`extent further response is contemplated, Defendant Tyson denies any liability to Plaintiff for
`the incident, injuries and damages alleged in Plaintiff’s Complaint.
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`11.
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`As a direct result of the Food manufactured/produced by Tyson and sold by Wal-
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`Mart Plaintiff was diagnosed with sepsis secondary to colitis secondary to enterohemorrhagic
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`Escherichia coli (“E-coli”).
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`ANSWER: Defendant Tyson denies the material allegations of rhetorical paragraph
`11 of Plaintiff’s Complaint and further denies any liability to Plaintiff for the incident,
`injuries and damages alleged in Plaintiff’s Complaint.
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`Count I – Strict Liability of Tyson Foods, Inc.
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`12.
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`The Plaintiff reasserts, realleges, and incorporates paragraphs one (1) through
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`eleven (11) herein by reference.
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`ANSWER: In response to rhetorical paragraph 12 of Count I of Plaintiff’s Complaint,
`Defendant Tyson incorporates by reference, as if fully set forth herein, its responses to
`rhetorical paragraphs 1 through 11, inclusive, and all other preceding paragraphs of
`Plaintiff’s Complaint.
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`{Firm/30028/00018/02752740.DOCX }
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`13.
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`Defendant Tyson’s Food contained E-coli at the time it was sold.
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`ANSWER: Defendant Tyson denies the material allegations of rhetorical paragraph
`13 of Count I of Plaintiff’s Complaint.
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`14.
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`Defendant Tyson sold the Food in a defective condition unfit for consumption to
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`its customer, Plaintiff, Mary Bussing.
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`ANSWER: The material allegations of rhetorical paragraph 14 of Count I of
`Plaintiff’s Complaint constitute legal conclusions to which no response is required. To the
`extent further response is contemplated, Defendant Tyson denies the material allegations of
`rhetorical paragraph 14 of Count I of Plaintiff’s Complaint.
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`15.
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`Defendant Tyson’s Food reached the consumer without substantial alteration from
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`the time of production to the time it was sold.
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`ANSWER: The material allegations of rhetorical paragraph 15 of Count I of
`Plaintiff’s Complaint constitute legal conclusions to which no response is required. To the
`extent further response is contemplated, Defendant Tyson denies the material allegations of
`rhetorical paragraph 15 of Count I of Plaintiff’s Complaint.
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`16.
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`Plaintiff, Mary Bussing, was in the class of persons that defendant Tyson should
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`reasonably have foreseen as being subject to harm caused by the contaminated Food, and the Food
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`was expected to and did reach the plaintiff, Mary Bussing.
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`ANSWER: The material allegations of rhetorical paragraph 16 of Count I of
`Plaintiff’s Complaint constitute legal conclusions to which no response is required. To the
`extent further response is contemplated, Defendant Tyson denies the material allegations of
`rhetorical paragraph 16 of Count I of Plaintiff’s Complaint.
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`17.
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`Defendant Tyson is in the business of producing and selling meat and other food
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`products, and was the producer/manufacturer of the Food.
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`ANSWER: Defendant Tyson admits to that portion of rhetorical paragraph 17 which
`avers that Defendant Tyson is in the business of producing and selling meat and other food
`products. However, Defendant Tyson denies the remaining material allegations of rhetorical
`paragraph 17 of Count I of Plaintiff’s Complaint for Damages and further denies any
`liability to Plaintiff for the incident, injuries and damages alleged in Plaintiff’s Complaint.
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`18.
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`As a direct and proximate result of the contaminated Food sold by defendant,
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`Tyson, plaintiff, Mary Bussing, developed enterohemorrhagic Escherichia coli, sustained severe
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`injuries, incurred medical expenses, lost wages, endured pain and suffering, and will continue to
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`incur such losses in the future.
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`ANSWER: The material allegations of rhetorical paragraph 18 of Count I of
`Plaintiff’s Complaint constitute legal conclusions to which no response is required. To the
`extent further response is contemplated, Defendant Tyson denies the material allegations of
`rhetorical paragraph 18 of Count I of Plaintiff’s Complaint.
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`Count II – Negligence of Defendant Tyson
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`19.
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`Plaintiff reasserts and realleges the information contained in rhetorical paragraphs
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`one (1) through eighteen (18) and reincorporates them herein by reference.
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`ANSWER: In response to rhetorical paragraph 19 of Count II of Plaintiff’s
`Complaint, Defendant Tyson incorporates by reference, as if fully set forth herein, its
`responses to rhetorical paragraphs 1 through 18, inclusive, and all other preceding
`paragraphs of Plaintiff’s Complaint.
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`20.
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`Defendant Tyson, through its agents and employees, was careless and negligent in
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`failing to ensure proper food safety practices were followed, with said negligence including, but
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`not limited to, the following:
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`a. Failure to use reasonable care in handing its food products;
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`b. Selling food contaminated with E-coli;
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`c. Failing to use reasonable care in preparing its food products;
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`d. Failure to use reasonable care in packaging its food products; and
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`e. Failure to use reasonable care to inspect its food products to ensure that said
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`food products were fit and safe for consumption.
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`including
`ANSWER: The material allegations of rhetorical paragraph 20,
`subparagraphs (a) – (e), inclusive, of rhetorical paragraph 20 of Count II of Plaintiff’s
`Complaint constitute legal conclusions to which no response is required. To the extent
`further response is contemplated, Defendant Tyson denies the material allegations of
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`Case 1:20-cv-02142-TWP-TAB Document 23 Filed 10/09/20 Page 6 of 10 PageID #: 67
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`rhetorical paragraph 20, including subparagraphs (a) – (e), inclusive, of rhetorical
`paragraph 20 of Count II of Plaintiff’s Complaint and further denies any liability to Plaintiff
`for the incident, injuries and damages alleged in Plaintiff’s Complaint.
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`21.
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`As a direct and proximate result of the negligence of defendant Tyson, plaintiff,
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`Mary Bussing, sustained severe and permanent injuries, incurred medical expenses, lost wages,
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`endures pain and suffering, and will continue to incur such losses in the future.
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`ANSWER: The material allegations of rhetorical paragraph 21 of Count II of
`Plaintiff’s Complaint constitute legal conclusions to which no response is required. To the
`extent further response is contemplated, Defendant Tyson denies the material allegations of
`rhetorical paragraph 21 of Count II of Plaintiff’s Complaint.
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`Count III – Negligence and Liability of Defendant Walmart
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`22.
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`Plaintiff reasserts and realleges rhetorical paragraphs one (1) through twenty-one
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`(21) and reincorporates them herein by reference.
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`ANSWER: In response to rhetorical paragraph 22 of Count III of Plaintiff’s
`Complaint, Defendant Tyson incorporates by reference, as if fully set forth herein, its
`responses to rhetorical paragraphs 1 through 21, inclusive, and all other preceding
`paragraphs of Plaintiff’s Complaint.
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`23.
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`Defendant Walmart sold contaminated food to customers, including Mary Bussing,
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`at the Neighborhood Market.
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`ANSWER: Defendant Tyson denies the material allegations of rhetorical paragraph
`23 of Count III of Plaintiff’s Complaint to the extent the allegations pertain to Defendant
`Tyson and further denies any liability to Plaintiff for the incident, injuries and damages
`alleged in Plaintiff’s Complaint.
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`24.
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`Defendant Walmart, through its agents and employees, was careless and negligent
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`in failing to ensure proper food safety practices were followed, with said negligence including, but
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`not limited to, the following:
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`a. Failure to use reasonable care in handing its food products sold at the
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`Neighborhood Market;
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`b. Selling food contaminated with E-coli;
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`c. Failing to use reasonable care in the sale of food products;
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`d. Failure to use reasonable care in refrigeration and preservation of its food
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`products; and
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`e. Failure to use reasonable care to inspect its food products to ensure that said
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`food products were fit and safe for sale and consumption.
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`ANSWER: The material allegations of rhetorical paragraph 24, including
`subparagraphs (a) – (e), inclusive, of Count III of Plaintiff’s Complaint constitute legal
`conclusions and are not directed at this Defendant. Therefore, no response is required. To
`the extent further response is contemplated, Defendant Tyson denies the material allegations
`of rhetorical paragraph 24, including the allegations contained in subparagraphs (a) – (e),
`inclusive, of rhetorical paragraph 24 of Count III of Plaintiff’s Complaint to the extent the
`allegations pertain to Defendant Tyson and further denies any liability to Plaintiff for the
`incident, injuries and damages alleged in Plaintiff’s Complaint.
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`25.
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`As a direct and proximate result of the negligence of Defendant Walmart, plaintiff,
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`Mary Bussing, sustained severe and permanent injuries, incurred medical expenses, lost wages,
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`endured pain and suffering and will continue to incur such losses in the future.
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`ANSWER: The material allegations of rhetorical paragraph 25 of Count III of
`Plaintiff’s Complaint constitute legal conclusions and are not directed at this Defendant.
`Therefore, no response is required. To the extent further response is contemplated,
`Defendant Tyson denies the material allegations of rhetorical paragraph 25 of Count III of
`Plaintiff’s Complaint and further denies any liability to Plaintiff for the incident, injuries
`and damages alleged in Plaintiff’s Complaint.
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`WHEREFORE, Defendant, Tyson Foods, Inc., by counsel, respectfully requests that the
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`Court enter judgment in its favor and against the Plaintiffs on this Count and all claims, allegations
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`and counts of Plaintiff against this Defendant in Plaintiff’s Complaint for Damages, for its costs
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`in this action, and for all other relief just and proper in the premises.
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`AFFIRMATIVE DEFENSES
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`Defendant, Tyson Foods, Inc., by counsel, for its affirmative defenses to Plaintiff’s
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`Complaint for Damages in this cause of action, states as follows:
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`1.
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`2.
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`Any paragraph not specifically admitted or denied herein is hereby denied.
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`Plaintiff’s Complaint for Damages fails to state a claim against this Defendant upon
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`relief can be granted.
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`3.
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`Plaintiff Mary Bussing is barred from recovery because the contributory fault of
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`Plaintiff exceeds fifty percent (50%) of the total fault for all persons or entities whose fault
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`proximately contributed to Plaintiff’s alleged injuries and damages.
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`4.
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`If it is determined that Defendants Wal-Mart Stores East, LP and/or Tyson Foods, Inc.
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`was/were negligent in a manner which either caused or contributed to Plaintiff’s alleged damages and
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`that the negligence of Plaintiff does not exceed fifty percent (50%) of the total fault of all persons or
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`entities whose fault proximately contributed to Plaintiff’s alleged damages, then such damages should
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`be reduced by an amount proportional to the negligence of Plaintiff.
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`5.
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`The incident, injuries and damages alleged in Plaintiff’s Complaint for Damages were
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`caused solely or contributed to by the acts, omissions, and conduct of Plaintiff Mary Bussing.
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`6.
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`The product at issue as alleged by Plaintiff Mary Bussing was changed, altered or
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`modified to a condition different than in which it was when it left the care, custody, and control of the
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`manufacturer and/or retailer, for which this Defendant is not liable.
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`7.
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`The product allegedly at issue was neither unreasonably dangerous nor defective
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`given the state of knowledge about such products, and therefore, any claims of strict liability are
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`barred as against this Defendant.
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`8.
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`Plaintiff Mary Bussing had a duty to preserve the evidence and failed to timely place
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`Defendant on notice of the subject occurrence within a reasonable time. Plaintiff Mary Bussing failed
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`to properly preserve all component remains of the alleged product, and thereby prejudiced the
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`Defendant in its ability to make appropriate investigation in order to prepare any and all defenses on
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`its behalf.
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`9.
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`Plaintiff Mary Bussing voluntarily assumed and/or incurred the risk of the activities
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`alleged in Plaintiff’s Complaint, and the resultant damages allegedly sustained by Plaintiff were
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`proximately caused or contributed to by such voluntary assumption of risk.
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`10.
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`The product at issue was manufactured and produced in full compliance with any and
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`all applicable government regulations and/or specifications.
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`11.
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`12.
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`13.
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`The product was fit for the particular purpose for which it was intended.
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`Plaintiff may have failed to mitigate her damages, if any.
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`Plaintiff may have already been compensated for her damages by other sources and
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`this Defendant would be entitled to credit or set of for any such sums in accordance with the
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`Indiana Collateral Source Rule.
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`14.
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`Defendant reserves the right to supplement these affirmative defenses as discovery
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`and investigation continue.
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`WHEREFORE, Defendant, Tyson Foods, Inc., by counsel, respectfully requests that the
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`Court enter judgment in its favor and against the Plaintiff on all counts and allegations of Plaintiff
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`against this Defendant in Plaintiff’s Complaint for Damages, for its costs in this action, and for all
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`other relief just and proper in the premises.
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`REQUEST FOR TRIAL BY JURY
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`Defendant, Tyson Foods, Inc., by counsel, pursuant to Rule 38(b) of the Federal Rules of
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`Civil Procedure, hereby respectfully requests a trial by jury as to all issues triable by jury.
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`Case 1:20-cv-02142-TWP-TAB Document 23 Filed 10/09/20 Page 10 of 10 PageID #: 71
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`Respectfully submitted,
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`CRUSER, MITCHELL, NOVITZ, SANCHEZ,
`GASTON & ZIMET, LLP
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`/s/ Keith A. Gaston, Esq.
`Keith A. Gaston, Esq., #7069-49
`Bruce D. Jones, Esq., #28624-29
`Bradley M. Owen, Esq., #32711-32
`Rachel O. Webster, Esq., #34251-49
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`Counsel for Defendant,
`Tyson Foods, Inc.
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`3077 E. 98th Street, Suite 280
`Indianapolis, IN 46280
`(317) 816-0300
`(317) 816-1604 (fax)
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`CERTIFICATE OF SERVICE
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`I hereby certify that on the 9th day of October 2020, a copy of the foregoing was filed
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`electronically. Notice of this filing will be sent to the following parties by operation of the Court’s
`electronic filing system. Parties may access this filing through the Court’s system:
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`Christopher G. Stevenson, Esq.
`WILSON KEHOE WININGHAM LLC
`2859 N. Meridian Street
`Indianapolis, IN 46208
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`/s/ Keith A. Gaston, Esq.
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`{Firm/30028/00018/02752740.DOCX }
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