Blevio et al v. Shaw's Supermarkets, Inc et al

Filing 86

RULING granting in part and denying in part 63 Motion for Protective Order Regarding Discovery Served by Third Party Defendant, Greater Omaha Packing Company, Inc., and granting in part and denying in part 64 Greater Omaha Packing Co., Inc.' ;s Motion to Defer Briefing and Ruling on Fairbank's Motion for Summary Judgment to Permit Discovery or in the Alternative, an Extension of Time to Respond by Greater Omaha Packing Company, Inc. SEE ATTACHED RULING FOR DETAILS. Signed by Judge Holly B. Fitzsimmons on 3/25/2015. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Fionn Blevio ppa Sinead Blevio
And Henry Blevio, et. al.
Plaintiffs,
v.
Shaw’s Supermarkets, Inc. et al.,
Defendants,

:
:
:
:
:
:
:
:
:

CIVIL ACTION NO:
3:14-CV-00171-WWE

RULING ON MOTION FOR PROTECTIVE ORDER [Doc. #63] AND MOTION TO
DEFER BRIEFING AND RULING ON SUMMARY JUDGMENT [DOC. #64]
Pending before the Court is the motion of defendant/thirdparty plaintiff Fairbank Reconstruction Corporation (“Fairbank”)
for an order protecting it from responding to certain requests
for production and interrogatories served by third-party
defendant Greater Omaha Packing Company, Inc. (“GOPAC”). [Doc.
#63]. Also pending before the Court is GOPAC’s motion to defer
briefing and ruling on Fairbank’s pending motion for summary
judgment to permit discovery. [Doc. #64]. For the reasons
articulated below, the Court GRANTS IN PART AND DENIES IN PART
Fairbank’s motion for protective order [Doc. #63], and GRANTS IN
PART AND DENIES IN PART GOPAC’s motion to defer briefing [Doc.
#64].
A.

BACKGROUND
This personal injury action arises out of a 2009 foodborne

E. Coli outbreak in the Northeast United States (“Northeast
outbreak”). Plaintiff, who at the time of injury was just seven
years old, developed a serious E. coli infection after consuming
a tainted hamburger at a New England Patriots’ tailgate party.
Fairbank submits that the tainted hamburger was purchased at a
1

Shaw’s supermarket, and that Shaw’s bought the hamburger from
Fairbank, which had it made using beef trim sold to Fairbank by
GOPAC. Plaintiffs have sued Fairbank and Shaw’s, which have in
turn filed a third-party complaint against GOPAC.
Prior to the filing of this action, Fairbank and GOPAC have
litigated several other personal injury actions arising from the
Northeast outbreak.1 Fairbank contends that collateral estoppel
bars GOPAC from relitigating several liability findings made in
favor of Fairbank and against GOPAC in the prior Northeast
outbreak cases. In that regard, Fairbank has filed a motion for
summary judgment, contending that the doctrine of collateral
estoppel establishes the following findings as a matter of law:
(1)

The parties’ [Fairbank and GOPAC] relationship
was governed by an agreement known as the
Fairbank Guarantee;

(2)

In violation of the Fairbank Guarantee, GOPAC
delivered to Fairbank adulterated raw beef trim
containing E. coli O157:H7 in September 2009;

(3)

Fairbank acted as a reasonable buyer with the
UCC’s requirements when using GOPAC’s adulterated
beef trim to make 85/15 hamburger for Shaw’s
without discovering contamination; and

(4)

GOPAC’s adulterated beef trim incorporated into
Fairbank hamburger caused the E. coli infections
of several consumers who consumed 85/15 hamburger
sold at Shaw’s stores.

[Doc. #61, 3 (alterations added)]. Accordingly, Fairbank
contends that the only issue remaining in this case is whether
1

Fairbank represents that, “Outbreak patients were identified by state and
local health departments and the Centers for Disease Control through the use
of sophisticated molecular fingerprinting techniques that revealed that they
had identical bacterial strains.” [Doc. #61, 2]. Throughout its submissions,
Fairbank refers to the specific strain of E. Coli identified by the DNA
fingerprinting. For purposes of this ruling, the Court assumes that any
reference to “E. coli” refers to the specific strain allegedly at issue in
this case.
2

GOPAC’s adulterated beef trim also caused plaintiff’s E. Coli
infection. [Id.].
Fairbank seeks protection from GOPAC’s discovery requests
that “seek to relitigate findings made against GOPAC in the
prior Northeast Outbreak cases.” [Doc. #63, 2]. Specifically,
Fairbank contends that because of the collateral estoppel effect
of the prior findings, the discovery requests at issue are not
reasonably calculated to lead to the discovery of relevant and
admissible evidence. GOPAC responds that, “Fairbank seeks to
curtail discovery based on its self-determination that
collateral estoppel will apply in this action.” [Doc. #65, 2].
GOPAC further contends that, “determination of the actual meat
consumed by [plaintiff] remains the pivotal issue in this matter
along with determining whether any Outbreak patients with a
similar genetic subtype of E. Coli to other patients were
sickened by sources not related to Fairbank and/or GOPAC.”
[Id.]. Accordingly, GOPAC argues that it requires discovery into
the type of meat consumed by plaintiff and others in the
Outbreak. [Id.].
The Court held a telephone conference on December 4, 2014,
to address the issues raised in the motion for protective order.
[Doc. #74]. The Court also addressed GOPAC’s response deadline
to Fairbank’s pending motion for summary judgment. [Id.]. During
the telephone conference the parties represented that the
depositions of Mr. and Mrs. Doherty2 were to occur on December
22, 2014, which could implicate the issues then pending before
2

The Dohertys provided the ground beef for the hamburgers at the tailgate
party.
3

the Court. The Court received the parties’ status reports on
January 15 and 16, respectively. Fairbank and Shaw’s report that
the Dohertys’ deposition testimony focused on the store from
which they purchased the tainted beef. [Doc. #80, 2]. They
further represent that in light of this testimony, they do not
object to additional time for GOPAC to conduct discovery
concerning which store sold the tainted beef. [Id.]. In
contrast, GOPAC submits that the Dohertys testimony “provides
reasons to strike the declaration of Mr. Doherty and creates
genuine issues of fact.” [Ellenbacker email dated January 15,
2015]. Accordingly, GOPAC seeks to depose all other declarants
regarding the bases for the statements made in the declarations
in support of the pending summary judgment motion. [Id.]. GOPAC
further details the other discovery responses it was then
awaiting, including genome testing results. [Id.]. Finally,
GOPAC seeks time to identify and depose a representative who is
familiar with the meat department at Ahold/Stop and Shop, given
the questions concerning which store sold the tainted beef.
[Id.].
B.

LEGAL STANDARD
Parties may obtain discovery regarding any non-privileged

matter that is relevant to the subject matter involved in the
pending litigation. Fed. R. Civ. P. 26(b)(1). The information
sought need not be admissible at trial as long as the discovery
appears reasonably calculated to lead to the discovery of
admissible evidence. Fed. R. Civ. P. 26(b)(1). Notwithstanding
the breadth of the discovery rules, the district courts are
4

afforded discretion under Rule 26(c) to issue protective orders
limiting the scope of discovery. Dove v. Atlantic Capital Corp.,
963 F.2d 15, 19 (2d Cir. 1992) (“[t]he grant and nature of
protection is singularly within the discretion of the district
court[…]”). When the party seeking the protective order
demonstrates good cause, the court “may make any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including
[…] that the disclosure or discovery not be had.” Fed. R. Civ.
P. 26(c)(1).
C.

DISCUSSION
Based on the current record, and in light of the

representations of counsel during the December 4 telephone
conference and in their subsequent status reports, the Court
will require GOPAC to respond to Fairbank’s motion for summary
judgment on issues one (1) through three (3) within thirty days
of this ruling. While Judge Eginton decides these issues, the
Court will permit GOPAC to conduct further discovery on the
fourth issue, namely whether GOPAC’s adulterated beef trim
incorporated into Fairbank hamburger caused the E. coli
infections of consumers who ate the 85/15 hamburger sold at
Shaw’s stores. During this period, GOPAC may also conduct fact
discovery concerning which grocery store sold the tainted beef
consumed by plaintiff. Accordingly, as stated, GOPAC’s motion to
defer briefing or alternatively for an extension of time to
respond to the pending motion for summary judgment [Doc. #64] is
GRANTED in part and DENIED in part.
5

Turning next to the motion for protective order, the Court
will also grant this motion in part. Because the Court is
inclined to permit GOPAC additional time to complete the genomic
testing of the bacterial isolate at issue, it will also require
Fairbank to respond to interrogatories 1, 2, and 8, and request
for production 4. The Court finds that these requests are
reasonably calculated to lead to the discovery of admissible
information and, further, that they go hand in hand with GOPAC’s
genomic testing of the bacterial isolate. The Court finds that
interrogatories 6 and 7, and requests for production 2, 5, 12,
and 13 are either overly broad on their face, or not reasonably
calculated to lead to the discovery of admissible information.
Accordingly, the Court GRANTS in part and DENIES in part
Fairbank’s motion for protective order. Fairbanks will respond
to the discovery requests permitted above within thirty days of
this ruling. Once the genomic testing and other discovery has
been completed, Fairbank may renew its motion for summary
judgment on the fourth issue.
D.

CONCLUSION
Accordingly, the Court GRANTS IN PART AND DENIES IN PART

Fairbank’s motion for protective order [Doc. #63], and GRANTS IN
PART AND DENIES IN PART GOPAC’s motion to defer briefing [Doc.
#64].
This is not a Recommended Ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C. §
636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
6

72.2. As such, it is an order of the Court unless reversed or
modified by the district judge upon motion timely made.
ENTERED at Bridgeport this 25th day of March 2015.

___/s/________________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

7