Fairbank Reconstruction v. Greater Omaha Packing

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and Norman H. Stahl, Appellate Judge. Per Curiam. Published. [12-1412]

Case: 12-1412

Document: 00116459802

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Date Filed: 11/21/2012

Entry ID: 5692154

United States Court of Appeals
For the First Circuit
No. 12-1412
MARGARET LONG; ALICE SMITH,
Plaintiffs,
v.
FAIRBANK RECONSTRUCTION CORP., d/b/a Fairbank Farms, Inc.,
Defendant/Third-Party Plaintiff, Appellee,
v.
GREATER OMAHA PACKING CO., INC.,
Third-Party Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]

Before
Lynch, Chief Judge,
Selya and Stahl, Circuit Judges.

Richard L. Neumeier, with whom Joshua P. Briefel and Morrison
Mahoney, LLP were on brief, for appellant.
Ralph A. Weber, with whom Paul C. Catsos, Thompson & Bowie,
LLP, Shawn K. Stevens, and Gass Weber Mullins LLC were on brief,
for appellee.

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November 21, 2012

Entry ID: 5692154

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Per Curiam.

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In this appeal, Greater Omaha Packing

Company ("GOPAC") asks this court to vacate a jury's unanimous
finding that GOPAC supplied Fairbank Reconstruction Corporation
("Fairbank")

with

E.

coli-tainted

beef,

which

Fairbank

then

packaged and shipped to two supermarkets in Maine, resulting in two
women who bought meat there becoming seriously ill.

There is no

basis to upset the jury's verdict, and we affirm.
I.
GOPAC is a beef slaughtering and processing company,
located in Omaha, Nebraska, that ships millions of pounds of beef
each day to other meat processors throughout the country.

One of

GOPAC's products, known as a "combo," is a container filled with
two thousand pounds of meat and fat.

Fairbank, a meat processing

company, purchases combos from GOPAC and other suppliers; it then
grinds and

packages

the

combo

meat

and

fat

into

retail-size

packages of ground beef.
In

the

fall

of

2009,

thirty-two

people

in

the

northeastern United States were sickened by an outbreak of E. coli.
The

infections

were

traced

to

Fairbank's

Ashville,

New

York

facility, which ultimately had to recall approximately 500,000
pounds of ground beef. Two of the people infected in the outbreak,
Margaret Long and Alice Smith, had purchased retail packages of
ground beef from Shaw's supermarkets in Maine.

They each sued

Fairbank in federal court in Maine, seeking compensation for their

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medical expenses and other damages.

Entry ID: 5692154

Fairbank then filed third-

party complaints against GOPAC in each suit, alleging that GOPAC
had supplied Fairbank with the tainted meat that ended up in the
packages

Long

indemnification

and
from

Smith
GOPAC,

had

purchased.

under

common

Fairbank
law

and

sought

contractual

theories, in the event Fairbank was found liable to the individual
plaintiffs.1
Fairbank later settled Long's and Smith's claims for
$100,000 and $400,000, respectively. Long and Smith both dismissed
their complaints in March 2011, leaving only the third-party
complaints

by

Fairbank

against

GOPAC.

The

district

court

consolidated those complaints into one case in August 2011, and the
parties proceeded to a jury trial.

The trial focused heavily on

the "traceback" analyses that led Fairbank's experts to conclude
that the contaminated meat could only have come from the GOPAC
combos and not from another supplier's product.

Fairbank also

introduced evidence relating to the discovery of an allegedly
identical strain of E. coli in GOPAC-supplied meat in California
and to signs of unusually high contamination levels at GOPAC's
plant on the day it shipped the allegedly tainted meat to Fairbank.
GOPAC moved for judgment as a matter of law at the close of
Fairbank's case, and the district court denied the motion.

1

Fairbank also asserted independent claims against GOPAC in
the Long suit, but it voluntarily dismissed those claims before
trial.
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After hearing six days of testimony, the jury returned
special

interrogatories

finding

that

GOPAC

had

delivered

adulterated beef containing E. coli bacteria to Fairbank and that
this same adulterated beef was later consumed by Long and Smith.
The district court denied, without opinion, GOPAC's post-trial
motions for relief from judgment, judgment as a matter of law, and
a new trial.

This appeal followed.
II.

GOPAC raises two challenges on appeal.

It first argues

that it was entitled to judgment as a matter of law because the
evidence was insufficient for a reasonable jury to conclude that
GOPAC's meat was contaminated and that such meat was included in
the packages Long and Smith purchased. See Fed. R. Civ. P. 50(b).2
GOPAC then argues that it is, at the least, entitled to a new
trial, because

the

trial

court

erred

in

admitting

the

video

deposition of GOPAC's former expert witness, Dr. Gerald Zirnstein.
Neither argument succeeds.
We review de novo the denial of a motion for judgment as
a matter of law following a jury verdict.

Cortés-Reyes v. Salas-

Quintana, 608 F.3d 41, 47 (1st Cir. 2010).

2

In conducting this

Fairbank contends that GOPAC failed to preserve at least
part of this argument for appeal because GOPAC raised certain
issues in its Rule 50(b) motion that were not included in its Rule
50(a) motion. GOPAC insists that its Rule 50(a) motion covered the
relevant theories.
For the purposes of this opinion, we will
assume without deciding that GOPAC's entire argument was preserved,
because the outcome would be the same in any event.
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review, "[w]e must determine whether, 'viewing the evidence in the
light most favorable to the verdict, a rational jury could have
found in favor of the party that prevailed.'" Id. (quoting BisbalRamos v. City of Mayagüez, 467 F.3d 16, 22 (1st Cir. 2006)).

We

will vacate the jury's verdict "[o]nly if the facts and inferences
'point so strongly and overwhelmingly in favor of the movant that
a reasonable jury could not have [returned the verdict].'"

Id.

(second alteration in original) (quoting Acevedo-Diaz v. Aponte, 1
F.3d 62, 66 (1st Cir. 1993)).
In this case, there was ample evidence to support a
rational jury's conclusion that GOPAC was the source of the E. coli
contamination that sickened Long and Smith.

Fairbank offered the

testimony of multiple expert witnesses who had examined Fairbank's
internal

production

records

as

well

as

U.S.

Department

of

Agriculture records and concluded that (1) GOPAC's combos were the
only common denominator in all of Fairbank's products implicated in
the outbreak; and (2) GOPAC's meat was in the packages that
Fairbank shipped to Shaw's supermarkets on the relevant date, which
Long and Smith later purchased.

Fairbank also offered the video

deposition of Zirnstein, an expert hired by GOPAC, who admitted
that GOPAC was a "probable" source of the tainted beef.

Further,

Fairbank introduced circumstantial evidence that the same strain of
E. coli which sickened Long and Smith had appeared in GOPAC meat in
California, and that the GOPAC facility that shipped the meat to
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Fairbank had had other positive E. coli tests on the date of
Fairbank's shipment.
The jury was free to credit this evidence and reasonably
conclude that GOPAC supplied the adulterated meat and that Long and
Smith ended up purchasing GOPAC's meat.

To be sure, the evidence

was hotly contested, with zealous advocacy on both sides.

On

appeal, GOPAC's primary line of attack on Fairbank's evidence is an
argument that one of Fairbank's traceback reports (the "Hoffman
report") was "destroyed" on cross-examination when a Fairbank
witness admitted that the report had relied on an invoice that
referred to a date outside the period when the contamination
occurred.

GOPAC argues that the discrediting of this report

discredited all of Fairbank's traceback evidence and compelled a
verdict in its favor. The argument overstates matters. Fairbank's
other experts later testified to reaching the same results using
invoices from the correct dates; the jury could have concluded that
any mistake had been corrected.

Further, the Hoffman report does

not implicate Fairbank's other strong circumstantial evidence of
causation at all.
At most, GOPAC has demonstrated that it cast doubt on
Fairbank's traceback evidence.

But when a party challenges a jury

verdict, it is not our position to evaluate the credibility of

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witnesses or the weight of the evidence.3

Entry ID: 5692154

Attrezzi, LLC v. Maytag

Corp., 436 F.3d 32, 37 (1st Cir. 2006) (citing Santiago-Negron v.
Castro-Davila, 865 F.2d 431, 445 (1st Cir. 1989)).
GOPAC's second argument also fails.

As an initial

matter, GOPAC did not object at trial to the introduction of the
Zirnstein video, and so our review is only for plain error.
Microfinancial, Inc. v. Premier Holidays Int'l, Inc., 385 F.3d 72,
80 (1st Cir. 2004).
GOPAC attempts to avoid this conclusion by arguing that
the district court's denial of GOPAC's pretrial motion in limine to
preclude use of the video constituted a definitive ruling that
excused the requirement of making an objection at trial.

See Fed.

R. Evid. 103(b); United States v. Mahone, 453 F.3d 68, 70 (1st Cir.
2006).

Not so.

First, the district court's ruling did not

definitively determine that the video was admissible, but rather
determined that there was an "open[] . . . door" to its potential
admission "[s]o long as" Fairbank could establish that the video
qualified as former testimony of an unavailable witness.
R. Civ. P. 32(a)(4); Fed. R. Evid. 804(b)(1).

See Fed.

Further, the

pretrial motion did not object to the video on the basis GOPAC now

3

The same principle applies to GOPAC's arguments regarding
the interpretation of Fairbank's shipping records, the E. coli
strain in California, and the size of the package of ground beef
that Smith purchased.
The record reveals that both parties
presented competing testimony on each of these points. It is the
jury's province to weigh contested evidence.
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asserts,

namely,

foundation.

that

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Date Filed: 11/21/2012

Zirnstein's

testimony

lacked

Entry ID: 5692154

a

factual

See United States v. Reed, 977 F.2d 14, 17 (1st Cir.

1992) (motion in limine asserting objection under Federal Rule of
Evidence 403 could not have preserved objection to same evidence on
Rule

404(b)

grounds).

Finally,

GOPAC

had

sufficient

time,

opportunity, and incentive to object to the video's admission after
it offered its evidence of the invoicing report date error.
To establish plain error, a party must show that there
was error, that it was plain, and that it affected the party's
substantial rights; an appellate court may then notice the error
only if it "seriously affect[ed] the fairness, integrity, or public
reputation of judicial proceedings."

United States v. Borrero-

Acevedo, 533 F.3d 11, 15 (1st Cir. 2008) (quoting Johnson v. United
States,

520

omitted).

U.S.

461,

467

(1997))

(internal

quotation

marks

GOPAC's argument does not meet this exacting standard.
GOPAC argues that the court erred in admitting the video

because Zirnstein had relied on the Hoffman report, and, once GOPAC
had discredited the Hoffman report, Zirnstein's testimony lacked a
foundation in accurate evidence.

However, Zirnstein testified in

his video deposition that he relied on many sources other than the
Hoffman

report,

including

information

Hoffman had failed to account for.

that

Zirnstein

thought

A trial exhibit showed that

Zirnstein had billed over 200 hours in preparing his own analysis.
It is apparent that Zirnstein's testimony did not, as GOPAC seems
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to suggest, merely parrot the conclusions of the Hoffman report.
Under these circumstances, particularly where GOPAC did not bring
the

foundation

issue

to

the

court's

attention

by

making

a

contemporaneous objection, the district court did not err -- let
alone plainly err -- in admitting the video.
III.
We find no error in the jury's verdict or in the district
court's denial of GOPAC's post-trial motions.
affirmed.

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The judgment is