Gluten meals suit partly moves forward

Genuine questions of material fact remained about a retirement community resident’s breach of contract and negligence claims after she was allegedly served a dish with gluten in January 2021, the 4th U.S. Circuit Court of Appeals has ruled, partially reversing summary judgment.

Eleanor McGinn, who has celiac disease and must keep a gluten-free diet, fell ill after eating meals at her retirement community, Broadmead. She sued, alleging breach of contract and negligence, as well as three federal law claims. A district court granted summary judgment in favor of Broadmead on all of her claims, and McGinn appealed.

The federal appellate panel affirmed dismissal of the federal law claims but reversed on the state law claims for one meal, finding that the district court overlooked statements made by the administrator.

“A jury may well find that the statements are admissions of wrongdoing,” Chief Judge Albert Diaz wrote in the Feb. 18 opinion. “Or a jury may find that they are mere promises that Broadmead would investigate the matter, without accepting responsibility. But that’s for a jury to decide and weigh alongside the other evidence.”

The 14-page opinion in McGinn v. Broadmead Inc. (VLW 026-2-054) was joined by Judges Roger L. Gregory and DeAndrea Gist Benjamin.

1. Thomas DiStanislao of Whiteford, Taylor & Preston in Richmond, who represented Broadmead, was pleased that the court “highlighted Broadmead’s efforts to work with Ms. McGinn, including expanding their food offerings, creating separate kitchen space and having staff members participate in a gluten-free certification program.”

DiStanislao also noted the court’s analysis of the standing doctrine for federal discrimination claims and holding that a mere allegation of an intent to return to eating at Broadmead, without any evidence to support that assertion, might have sufficed at the motion to dismiss stage but was insufficient at summary judgment.

“It’s also important to emphasize that this was a unanimous decision, and what we are going back on wasn’t a rejection of any legal principles — it was purely a summary judgment standard,” he added.

New York attorney Andrew Rozynski of Eisenberg & Baum represented McGinn.

“We are grateful that the court concluded a jury should determine whether Broadmead breached its obligations to Ms. McGinn,” he said. “At the same time, we respectfully believe certain aspects of the opinion concerning Ms. McGinn’s federal claims warrant further consideration, and we are thoughtfully evaluating our next steps.”

McGinn moved to Broadmead with the understanding, reflected in her contract, that she would receive three safe meals per day, Rozynski said, and because she has celiac disease, access to reliably gluten-free food is not a preference but a medical necessity.

“She continues to pay a monthly food charge while being unable to safely eat the meals provided,” he added. “That fundamental concern remains unresolved, and we remain committed to seeking a fair outcome on her behalf.”

Ill after meals McGinn moved to Broadmead in October 2017 after the community assured her that it could accommodate her gluten-free diet. Her residential contract specified that Broadmead would serve “three nutritional and properly cooked meals a day from a choice of well-balanced menus.”

On Feb. 22, 2018, McGinn vomited after eating a crab cake that a Broadmead employee said was gluten-free. According to McGinn, when she inquired if the crab cake had imitation crabmeat, which has gluten, she was told Broadmead “only use[d] real crab meat.” She “let it go” and didn’t make further inquiries, according to the opinion.

In June 2020, McGinn ate what she thought was a gluten-free stuffed tomato and was later ill. When she informed Broadmead’s CEO, she was told that “there was a transcription error” on the menu and the tomato contained gluten.

Chicken marsala on Jan. 29, 2021, allegedly caused McGinn to be “violently ill.” After she reported it, a Broadmead administrator instructed the dining director “to determine how this process failed,” and subsequently told McGinn that “[s]omewhere along the line there was a failure and we will find it.”

McGinn stopped eating at Broadmead’s dining venues around February 2021 and filed suit in September 2023, alleging violations of the Americans with Disabilities Act (ADA), the Rehabilitation Act and the Fair Housing Act (FHA), along with six state law claims. She also moved for a preliminary injunction.

On cross motions for summary judgment, the district court sided with
Broadmead. McGinn appealed.

Federal law claims fail

Beginning with the federal claims, the court found McGinn lacked standing under the ADA. She couldn’t seek injunctive relief because her past injury wasn’t enough to show that she would be wronged again, and it didn’t confer standing to enjoin a speculative future injury.

Nor did she face continuing harm, the court found, because she only pointed to “a plausible intent” to resume eating at Broadmead, without facts or evidence.

McGinn “hasn’t pointed to anything to show she would ever eat again at
Broadmead,” the court wrote. “Just the opposite: even after Broadmead implemented the changes McGinn requested, she still refused to eat there.”

Nor had she suffered economic harm, as Broadmead offered to let her opt out of its meal plan and McGinn declined.

As for the FHA and Rehabilitation Act claims, McGinn forfeited her challenge because her appeal failed to address the district court’s holding that the continuing violation doctrine didn’t apply for failure to accommodate claims outside the hostile workplace context.

In addition, her claims were barred by the statute of limitations, the court noted. The FHA has a two-year limitations period, and as the Rehabilitation Act doesn’t specify, the court applied Maryland’s general three-year rule.

Her claims accrued in January 2019 when she first informed Broadmead of its alleged failure to accommodate her disability, and the limitations period was not restarted in March 2023 when she asked for more gluten-free options, the court held.

Chicken marsala incident remains

Similarly, McGinn’s breach of contract and negligence claims premised on the February 2018 crab cake incident fell outside Maryland’s three-year statute of limitations, and the court rejected her argument that state’s discovery rule provided an exception.

After McGinn became ill, she reached out to Broadmead staff, who informed her real crabmeat was used, and she “let it go” without making further inquiries, Diaz noted.

“So McGinn had actual knowledge of both the need to inquire and that her limited inquiry wasn’t reasonably diligent,” the court said. Because her alleged gluten exposure occurred in February 2018, the three-year period determined in the statute of limitations ran out in February 2021, making her September 2023 complaint too late.

However, the court agreed with McGinn that the district court erred when it granted summary judgment to Broadmead on her breach of contract and negligence claims from an alleged gluten exposure after she ate chicken marsala in
January 2021.

The district court didn’t account for the Broadmead administrator’s statements that she instructed the dining director “to determine how this process failed,” and that “[s]omewhere along the line there was a failure and we will find it.”

“The statements acknowledging a failure are sufficient to create a genuine issue of material fact,” the court determined.