Case: 3:23-cv-00432-SA-JMV Doc #: 29 Filed: 01/15/24 1 of 8 PageID #: 113

IN THE CIRCUIT COURT OF LAFAYETTE COUNTY, MISSISSIPPI

SHANNON SELLERS PLAINTIFF

V. CAUSE NO. 3:23-cv-432-SA-JMV

US BEVERAGE PACKERS, LLC DEFENDANT

FIRST AMENDED COMPLAINT

1.

The Plaintiff, Shannon Sellers (“Plaintiff”), is an adult resident citizen of Oxford, Lafayette

County, Mississippi, who resides at 1304 Elliot Drive, Oxford, MS 38655.

2.

The Defendant, US Beverage Packers, LLC (“US Beverage”), is a limited liability

company incorporated and headquartered in The State of New York. US Beverages principal place

of business is in The State of New York. US Beverages sole member is DV Capital, L.P. DV

Capital is a limited partnership whose partners are all citizens of New York. As such, US

Beverages is domiciled in the State of New York.

3.

As such, and pursuant to the fact that the Plaintiff seeks damages in excess of $75,000 in

this case, this Court has diversity jurisdiction over this case pursuant 28 U.S.C. § 1332.

4.

On April 30, 2023, the Plaintiff’s boyfriend purchased a can of “Arizona Arnold Palmer

Lite” from the Marathon gas station located at 1455 S. Lamar Ave, Oxford, MS 38655. He placed

the can in the Plaintiff’s refrigerator so the Plaintiff could take it with her to work the next day.
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The beverage was manufactured, bottled, packaged, and placed into the stream of commerce by

US Beverages, who is the exclusive bottler and packager of the beverage “Arizona Arnold Palmer

Lite.”

5.

The Plaintiff works for the University of Mississippi. On May 1, 2023, she went to her

weekly department meeting at 9:00 am in the conference room at the Study Abroad department

with her “Arizona Arnold Palmer Lite” in hand. At the start of the meeting, she opened the sealed

can of “Arizona Arnold Palmer Lite,” and drank the beverage. Upon finishing the beverage, the

Plaintiff discovered two dead mice in the bottom of her can. This caused her to become sick and

exit the meeting.

6.

After the Plaintiff left the meeting, her coworkers also saw the mice in the can. They took

photographs and videos of the mice in the bottom of the can.

7.

The Plaintiff sought immediate medical treatment due to drinking the contaminated

beverage. She missed time from work. She has also suffered extreme emotional distress and mental

pain and suffering.

8.

At all times relevant herein, US Beverage was engaged in the business of manufacturing,

bottling, packaging, and distributing “Arizona Arnold Palmer Lite.” US Beverage placed this

product, including the can the Plaintiff opened, in the stream of commerce for intended sale and

consumption by individuals such as the Plaintiff, including for sale and consumption in the State

of Mississippi.
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9.

US Beverage exercised exclusive control and management over the beverage at all times

during its bottling and packaging, through and including the time that it sealed the beverage.

10.

The beverage was not tampered with after it was manufactured, bottled, packaged and

sealed by US Beverage.

11.

A rodent inside a sealed beverage would not occur except for the want of reasonable care

on the part of US Beverage.

12.

The Plaintiff faced physical peril from US Beverage’s negligent acts and/or omissions and

was physically impacted by the presence of the mice in her beverage. The Plaintiff was within the

zone of danger resulting from US Beverage’s negligent acts and/or omissions directed at the

Plaintiff, including as the consumer of the beverage. She was subjected to a reasonable fear of

immediate personal injury and did in act suffer substantial, mental, and emotional injury, illness,

and trauma as a result.

13.

All acts of negligence complained of herein were committed by employees, agents, and/or

servants of US Beverage all acting within the course and scope of their employment and/or

authority. These employees, agents, and/or servants include but are not limited to manufacturing

and/or bottling facility personnel, maintenance personnel, inspection personnel, pest control

personnel, and or quality control personnel.

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14.

Count 1- Negligence

At all times relevant, US Beverage owed the Plaintiff certain duties, including but not

limited to, the duty of care in the manufacture and bottling of the beverage at issue.

15.

At all times relevant, US Beverage owed a duty to all persons who purchase and/or

consume “Arnold Palmer Lite,” including the Plaintiff, to:

a. Exercise reasonable care in manufacturing and/or bottling the beverage to

ensure that only the beverages ingredients were included in the beverage and that no contaminating

substances, including rodents, were allowed to be sealed in the can;

b. Exercise reasonable care in inspecting all of its facilities and or equipment

to ensure that they were free of potential contaminating substances or organisms, including

rodents;

c. Exercise reasonable care in inspecting all beverages it manufactured and/or

bottled to ensure they were free of contaminating substances and organisms, including rodents;

d. exercise reasonable care in controlling and preventing the entry of pests,

including rodents, into their beverage manufacturing and bottling facilities;

e. Exercise reasonable care to maintain quality control in manufacturing an or

bottling of beverages it manufactured, bottled, and or distributed;

f. properly train and supervise manufacturing and/or bottling facility

personnel, maintenance personnel, inspection personnel, pest control personnel, and quality

control personnel, and all other such type employees or agents, to ensure that they exercised the

requisite degree of care necessary to prevent a contaminating substance or organism, including

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rodents, from being sealed inside a beverage that could result in injury or damages to the consumer

of their beverages.

16.

The beverage that US Beverage manufactured and bottled with rodents sealed inside and

the resulting injuries and damages were proximately caused by the negligence and carelessness of

US Beverage and its employees, in that it breached the duties set out above and were otherwise

negligent and careless in one or more of the following respects:

a. failing to ensure that only the beverages ingredients were included in the beverage

and that no contaminating substances, including rodents, were allowed to be sealed in the can;

b. failing to properly inspect all of its facilities and or equipment to ensure that they

were free of potential contaminating substances or organisms, including rodents;

c. failing to inspect all beverages it manufactured and/or bottled to ensure they were

free of contaminating substances and organisms, including rodents;

d. failing to control and prevent the entry of pests, including rodents, into its beverage

manufacturing and bottling facilities;

e. failing to maintain quality control in manufacturing and/ or bottling of beverages it

manufactured, bottled, and or distributed;

f. failing to properly train and supervise manufacturing and/or bottling facility

personnel, maintenance personnel, inspection personnel, pest control personnel, and quality

control personnel, and all other such type employees or agents, to ensure that they exercised the

requisite degree of care necessary to prevent a contaminating substance or organism, including

rodents, from being sealed inside a beverage that could result in injury or damages to the consumer.
 Case: 3:23-cv-00432-SA-JMV Doc #: 29 Filed: 01/15/24 6 of 8 PageID #: 118

17.

As a direct, foreseeable, legal, and proximate result of the numerous and continuous acts

of negligence committed by US Beverage by and through its agents, employees, servants and

representatives, the Plaintiff consumed the beverage with rodents inside it and suffered severe

injury, damages, and trauma.

18.

US Beverage’s breach of its duty and the failure of US Beverage to exercise the appropriate

and reasonable level of care in the manufacture and bottling of the beverage at issue was a

proximate and legal cause and a substantial factor of Plaintiff’s injuries, damages, and losses.

19.

Count 2- Product Liability

At all relevant times, US Beverage by and through its agents, employees, and/or servants

manufactured, bottled, packaged, and/or distributed the beverage with rodents sealed inside.

20.

The beverage at issue was manufactured, bottled, packaged, and sealed and/or distributed

by US Beverage in a defective condition because it deviated in a material way from US Beverage’s

specifications or from otherwise identical units manufactured to the same manufacturing

specifications.

21.

Manufactured, bottled, and sealed beverages, including “Arnold Palmer Lite” beverages

such as the one at issue with sealed rodents inside, are unreasonably dangerous, more dangerous

that the Plaintiff could expect, and more dangerous than the ordinary consumer in the community

could expect about the characteristic of such manufactured, bottled, and sealed beverages.
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22.

After the beverage was manufactured, bottled, packaged, and sealed by US Beverages, it

reached the Plaintiff and was consumed by her without undergoing any substantial change.

23.

US Beverage expected the beverage would reach the beverage’s ultimate consumer without

undergoing any substantial change after it manufactured, bottled, and sealed the beverage.

24.

The defects in the beverage were a proximate cause of the injury, trauma, and damage

suffered by the Plaintiff. As such, US Beverage is strictly liable for the manufacture, bottling, and

distribution of the beverage at issue.

25.

Count 3- Breach of Warranties

At all relevant times, US Beverages was a merchant with respect to the beverage at issue.

At all relevant times, US Beverages manufactured, sold, packaged, and distributed the beverage

as “good” within the meaning of relevant statutory provisions.

26.

At all relevant times, US Beverage impliedly and expressly warranted that the beverage

was safe and fit for human consumption. Contrary to these representations, the beverage reached

and was consumed by the Plaintiff with rodents inside of the can, thereby breaching the warranties

and causing her damages.

27.

WHEREFORE, PREMISES CONSIDERED, the Plaintiff seeks compensatory damages

from the Defendant in an amount to be determined by the fact finder, as well as post judgment
 Case: 3:23-cv-00432-SA-JMV Doc #: 29 Filed: 01/15/24 8 of 8 PageID #: 120

interest, attorney’s fees, and costs. The Plaintiff seeks whatever other relief she may be entitled to

under the premises.

THIS, the 15th day of January, 2024.

Respectfully submitted

s/ S. Ray Hill, III

S. RAY HILL, III, MSB #100088
CLAYTON O’DONNELL, PLLC
P.O. Box 676
Oxford, MS 38655
[email protected]
Attorney for Plaintiff

CERTIFICATE OF SERVICE

I, S. Ray Hill, III, hereby certify that I filed the foregoing using the Court’s ECF system

this sent notice of the filing to all counsel of record.

This the 15th day of January, 2024

s/S. Ray Hill, III

S. RAY HILL, III, MSB# 100088
 Case: 3:23-cv-00432-SA-JMV Doc #: 95 Filed: 08/19/24 1 of 8 PageID #: 600

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION

SHANNON SELLERS PLAINTIFF

V. CIVIL ACTION NO. 3:23-cv-00432-SA-JMV

US BEVERAGE PACKERS, LLC DEFENDANT

DEFENDANT’S MEMORANDUM IN SUPPORT

OF MOTION FOR SUMMARY JUDGMENT

Defendant, US Beverage Packers, LLC (“USBP” or “Defendant”), files this Memorandum

in Support of its Motion for Summary Judgment, which is being filed contemporaneously

herewith. In support thereof, Defendant submits as follows:

BACKGROUND

On September 1, 2023, Plaintiff filed her Complaint against Arizona Beverages USA, LLC

(“Arizona”) in the Circuit Court of Lafayette County, Mississippi. [Doc. 2]. Arizona filed its Notice

of Removal on November 14, 2023. [Doc. 1]. Arizona filed its Answer on November 15, 2023.

[Doc. 8]. On January 5, 2024, an Agreed Order for Substitution of Parties was entered, ordering

Arizona be dismissed and USBP be substituted as the proper defendant. [Doc. 23].

Plaintiff filed her First Amended Complaint against USPB on January 15, 2024. [Doc. 29].

The incident at issues concerns allegations that the Plaintiff allegedly drank a can of “Arizona

Arnold Palmer Lite” (herein after the “beverage”) and then discovered two dead mice in the bottom

of the can. Id. Plaintiff’s First Amended Complaint alleges claims of negligence, product liability,

and breach of warranties against USBP. Id.

With regard to Plaintiff’s negligence claim, the First Amended Complaint alleges that

“USBP’s breach of its duty and the failure of USBP to exercise appropriate and reasonable level

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of care in the manufacture and bottling of the beverage at issue was a proximate and legal cause

and a substantial factor of Plaintiff’s injuries, damages, and losses.” Id. With regard to Plaintiff's

product liability claim, the First Amended Complaint alleges that, “The beverage at issue was

manufactured, bottled, packaged, and sealed and/or distributed by USBP in a defective condition

because it deviated in a material way from USBP’s specifications or from otherwise identical units

manufactured to the same manufacturing specifications.” Id. Plaintiff alleges that, “The defects in

the beverage were a proximate cause of the injury, trauma, and damage suffered by the Plaintiff….

USBP is strictly liable for the manufacture, bottling, and distribution of the beverage at issue.” Id.

Lastly, with regard to Plaintiff’s breach of warranties claim, the First Amended Complaint alleges,

“USBP was a merchant with respect to the beverage at issue…. the beverage reached and was

consumed by the Plaintiff with rodents inside of the can, thereby breaching the warranties and

causing her damages.” Id. Defendant denies all allegations of liability and contests Plaintiff’s

damage claims. [Doc. 30].

The Case Management Order (“CMO”) was entered on January 8, 2024. [Doc. 25].

Plaintiff’s expert designation deadline was April 8, 2024, and Defendant’s expert designation

deadline was May 8, 2024. Id. On April 4, 2024, Plaintiff filed a Motion for Extension of Expert

Designation Deadlines [Doc. 34], and an Order was entered the same day, extending Plaintiff’s

expert designation deadline until May 8, 2024, and Defendant’s expert designation deadline until

June 10, 2024. [Doc. 35]. On or about May 7, 2024, Plaintiff designated only two treating

physicians as experts. [Doc. 43, Notice of Service]; See Exhibit A, Plaintiff’s Designation of

Treating Physician Expert Witnesses.

Defendant designated Laura K. Bryan, DVM-PhD, Dip. ACVP (“Dr. Bryan”) as an expert

to inspect the rodents and to provide expert testimony in the fields of veterinary medicine and

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biomedical sciences as well as animal pathology and pathobiology. Dr. Bryan has provided a

detailed expert report and supplemental expert report articulating her opinions. See Exhibit B,

Expert Report; and Exhibit C, Supplemental Expert Report.

Plaintiff has failed to designate an expert to establish defect and causation. Plaintiff has

failed to provide sufficient evidence to support any of her claims and Defendant is entitled to

summary judgment as a matter of law.

LEGAL STANDARD

The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56. Summary judgment “should be rendered if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine dispute as to any material fact

and that the movant is entitled to judgment as a matter of law.” Taggert v. FCA US LLC, No. 1:16-

cv-179-GHD-DAS, 2018 WL 493479, at *2 (N.D. Miss. Jan. 19, 2018), quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). The rule “mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who fails to make a sufficient

showing to establish the existence of an element essential to the party’s case, and on which that

party will bear the burden of proof at trial.” Id.

The party moving for summary judgment bears the initial responsibility of informing the

Court of the basis for its motion and identifying those portions of the record it believes demonstrate

the absence of a genuine dispute of material fact. Id.; citing Celotex, 477 U.S. at 323. Once the

moving party for summary judgment has demonstrated an absence of a genuine of material fact,

the burden then shifts to the nonmovant to go beyond the pleadings and by affidavits, or by the

depositions, answers to interrogatories, and admissions on filed, designate specific facts showing

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that there is a genuine for trial. Id.; citing Celotex, 477 U.S. at 324. A nonmoving party cannot

avoid summary judgment by merely demonstrating that there is some “metaphysical doubt as to

the material facts.” Matsushita Elec. Ind. Co. v. Zenith Radio Group, 475 U.S. 574, 587 (1986).

The nonmoving party cannot defeat summary judgment with conclusory allegations,

unsubstantiated assertions, or only a scintilla of evidence. Taggert, 2018 WL 493479, at *2; citing

Thomas v. Baldwin, 595 Fed. Appx. 378, 380 (5th Cir. 2014).

ARGUMENT

Plaintiff seeks damages for injuries she alleges were caused because the beverage at issue

was manufactured, bottled, packages, and sealed and/or distributed by USBP in defective condition

because it deviated in a material way from USBP’s specifications or from otherwise identical units

manufactured to the same manufacturing specifications. [Doc. 29]. Plaintiff alleges the defects in

the beverage were a proximate cause of the injury, trauma, and damage suffered by the Plaintiff.

Id. Plaintiff claims that USBP is strictly liable for the manufacture, bottling, and distribution of the

beverage at issue. Id. Since Plaintiff is pursuing an “action for damages caused by a product” that

is based on the theory of strict liability tort, negligence, and warranty, all of Plaintiff’s claims are

subsumed and governed by the Mississippi Product Liability Act. Miss. Code Ann. § 11-1-63;

Holifield v. City Salvage, Inc., 230 So. 3d 736, 740 (Miss. Ct. App. 2017) (holding that in the wake

of the Legislature’s 2014 amendment, “it is clear” that the MPLA applies in tort, negligence, or

breach of warranty).

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A. Plaintiff Cannot Sustain Her Burden of Proof without Expert Testimony to

Establish Defect and Causation.

Plaintiff cannot sustain her burden of proof without expert testimony. Plaintiff’s expert

designation deadline has expired. Plaintiff failed to designate an expert to establish defect and

causation and failed to seek more time to do so. See e.g. Shavontae Smith v. Hyundai Motor

America, No. 3:23-cv-604-KHJ-MP, 2024 WL 2701699, at *1 (S.D. Miss. May 24, 2024).

Mississippi state and federal courts have uniformly granted summary judgment against product

liability plaintiffs for failing to present expert testimony.

In Taggert, the plaintiff filed a complaint alleging strict liability for defective design,

manufacture, and marketing; breach of express and implied warranties; negligence; and post-sale

failure to warn. 2018 WL 493479, at *1. The defendant filed a motion for summary judgment

arguing that without expert testimony, the plaintiff could not establish her product liability claims.

Id. at *3. The court agreed and stated that federal courts in Mississippi have repeatedly held that

expert testimony is required in product liabilities claims brought under the MLPA. Id. See e.g.

Hammond, 61 F. Supp. 2d at 542, aff’d sub nom. Hammond v. Coleman Co., 209 F.3d 718 (5th

Cir. 2000)(holding that plaintiff’s failure to offer expert testimony of defects is “fatal to his case.”);

Cothren v. Baxter Healthcare Corp., 798 F. Supp. 2d 779, 782 (S.D. Miss. 2011)(“Plaintiff is

required to provide the Court with expert testimony in support of her claims of design and

manufacturing defects under the MPLA….”). In Taggert, the plaintiff did not designate an expert

witness, and the deadline to do so had passed. 2018 WL 493479, at *4. The court stated that

because the plaintiff did not provide the necessary expert testimony, she had failed to offer proof

on a matter which she bears the burden of proof at trial. Id. The court further stated that without

this expert testimony, there existed only the two recall notices identified in the complaint as

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evidence of a defect. Id. Such recall notices, however, are not admissible evidence that can

establish liability. Id.; see Rutledge v. Harley-Davidson Motor Co., 364 Fed. Appx. 103, 105-106

(5th Cir. 2010). The court concluded that even assuming these notices were admissible, they do

not establish that plaintiff’s vehicle was defective, or that those defects caused plaintiff’s accident

and injuries. Id. The court held that the defendant had established that no evidence was before the

court to show a defect present in plaintiff’s vehicle caused her accident and injuries and granted

defendant’s motion for summary judgment and dismissed the plaintiff’s claims against the

defendant. Id. at *5.

Plaintiff’s expert designation deadline was May 8, 2024. Plaintiff failed to designate an

expert. Plaintiff’s First Amended Complaint contains vague allegations that the beverage at issue

was manufactured, bottled, packaged, and sealed and/or distributed by USBP in a defective

condition because it deviated in a material way from USBP’s specifications or from otherwise

identical units manufactured to the same manufacturing specifications. [Doc. 29]. Plaintiff has

simply provided no evidence to support this vague theory. Defendant retained an expert who

opined that the mice were not processed and/or sealed inside the can at USBP and the mice entered

or were introduced into the product after the can was opened. Ex. B, C and D. Plaintiff has provided

no evidence to support a defect theory regarding the beverage and cannot refute evidence presented

by the Defendant.

Furthermore, as in Taggert, where the court found that the recall notices were not

admissible evidence that can establish liability, here the Court should also find that the complaints

by other individuals are not admissible evidence that can establish liability. In Taggert, the court

held that even if assuming the notices were admissible, they did not establish that plaintiff’s vehicle

was defective, or that those defects caused plaintiff’s accident and injuries. Here, the Court should

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also find that even assuming the complaints by other individuals were admissible, they do not

establish that the beverage was defective or that those defects caused Plaintiff’s alleged injuries.

As Plaintiff failed to designate an expert as to defect and causation, Defendant is entitled to

summary judgment on all of Plaintiff’s claims in this case as a matter of law.

B. The theory of Res Ipsa Loquitur is Not Enough to Survive Summary

Judgment.

Res ipsa loquitur is not an appropriate doctrine in regard to a strict liability claim. Hyundai,

2024 WL 2701699, at *4; citing Hammond, 61 F. Supp. 2d at 539, aff’d Hammond, 209 F.3d 718

(5th Cir. 2000). To the extent Plaintiff attempts to argue the doctrine of res ipsa loquitur should

apply, the theory of res ipsa loquitur is not enough to survive summary judgment as expert

testimony is required in order for Plaintiff to survive summary judgment in this technical case and

Plaintiff has no expert witness.

CONCLUSION

Plaintiff failed to designate an expert to establish defect and causation, and Plaintiff’s

expert designation deadline has passed. Plaintiff has provided no evidence to meet the elements of

her product liability claims against USBP. As such, summary judgment in favor of USBP is

appropriate, and USBP respectfully requests that this Court grant its Motion for Summary

Judgment and dismiss all claims against it with prejudice.

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that this

Court grant its Motion for Summary Judgment and dismissal all claims against it with prejudice.

If Defendant has requested wrong or insufficient relief, then it requests any and all relief to which

it may be entitled in the premises.

[SIGNATURE ON FOLLOWING PAGE]

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THIS the 19th day of August, 2024.

Respectfully submitted,

US BEVERAGE PACKERS, LLC

By Its Attorneys

DunbarMonroe, PLLC

/s/ David C. Dunbar

David C. Dunbar
Lauren T. Carpenter

OF COUNSEL:

David C. Dunbar (MSB No. 6227)

Lauren T. Carpenter (MSB No. 106275)
DunbarMonroe, PLLC
270 Trace Colony Park, Suite A
Ridgeland, Mississippi 39157
Telephone: (601) 898-2073
Facsimile: (601) 898-2074
Email: [email protected]
[email protected]

CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I have this day electronically filed the foregoing with

the Clerk of the Court using the ECF system which sent notification of such filing to the following:

S. Ray Hill, III, Esq. (MSB #100088) [email protected]

Clayton O’Donnell, PLLC
P. O. Box 676
Oxford, Mississippi 38655

THIS the 19th day of August, 2024.

/s/ David C. Dunbar

David C. Dunbar

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