JONES v. FAIRBANK RECONSTRUCTION CORP et al
Filing
104
ORDER ON MOTION FOR SUMMARY JUDGMENT granting in part and denying in part #58 Motion for Summary Judgment By JUDGE GEORGE Z. SINGAL. (lrc)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
EMMIE JONES, as Parent and
Guardian of MJ, a minor,
Plaintiff,
v.
FAIRBANK RECONSTRUCTION
CORP.,
Defendant.
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) Docket no. 2:11-cv-437-GZS
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ORDER ON MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Fairbank Reconstruction Corp.’s Motion for Summary
Judgment (ECF No. 58) by which Fairbank Reconstruction Corp. (“Fairbank”) seeks summary
judgment on its cross claims against Defendant Greater Omaha Packing Company (“GOPAC”).
After the pending Motion for Summary Judgment was briefed and placed under advisement,
GOPAC sought leave to file a supplemental brief, which the Court granted on May 31, 2013
(ECF No. 92). As a result, the Court received supplemental briefs and statements of material
fact from both Fairbank & GOPAC (ECF Nos. 94-97). As explained herein, the Court now
GRANTS IN PART and DENIES IN PART the Motion.
I.
LEGAL STANDARD
Generally, a party is entitled to summary judgment if, on the record before the Court, it
appears “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(a). “[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is “genuine” if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at
248. A “material fact” is one that has “the potential to affect the outcome of the suit under the
applicable law.” Nereida–Gonzalez v. Tirado–Delgado, 990 F.2d 701, 703 (1st Cir. 1993)
(citing Anderson, 477 U.S. at 248) (additional citation omitted).
The party moving for summary judgment must demonstrate an absence of evidence to
support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In
determining whether this burden is met, the Court must view the record in the light most
favorable to the nonmoving party and give that party the benefit of all reasonable inferences in
its favor. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004).
Once the moving party has made this preliminary showing, the nonmoving party must
“produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy
issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and
internal punctuation omitted); see also Fed. R. Civ. P. 56(e). “Mere allegations, or conjecture
unsupported in the record, are insufficient.” Barros-Villahermosa v. United States, 642 F.3d 56,
58 (1st Cir. 2011) (quoting Rivera–Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34,
37 (1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) (“A
properly supported summary judgment motion cannot be defeated by conclusory allegations,
improbable inferences, periphrastic circumlocutions, or rank speculation.”) (citations omitted).
“[A]s to any essential factual element of its claim on which the nonmovant would bear the
burden of proof at trial, its failure to come forward with sufficient evidence to generate a
trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27,
31 (1st Cir. 2001) (quoting In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993)).
2
II.
PROCEDURAL HISTORY
For the unfamiliar reader, a useful starting point for understanding the pending dispute
between Co-Defendants Fairbank and GOPAC is the prior cases of Long v. Fairbank
Reconstruction Corp., D. Me Docket #1:09-cv-592-GZS and Smith v. Fairbank Reconstruction
Corp., D. Me. Docket #2:10-cv-60-GZS. This prior litigation was aptly summarized by the First
Circuit, as follows:
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 medical expenses and other damages. 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 and
Smith had purchased. Fairbank sought indemnification from GOPAC, under
common law and contractual theories, in the event Fairbank was found liable to the
individual plaintiffs.
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 [in November 2011].
Long v. Fairbank Reconstruction Corp., 701 F.3d 1, 2-3 (1st Cir. 2012) (footnote omitted).1
1
For purposes of this Order, the Court refers to these earlier consolidated proceedings as the “Long/Smith trial”
although the only two parties participating in the trial were Fairbank and GOPAC.
3
The Long/Smith case was ultimately submitted to the jury with a special verdict form on
Fairbank’s claim that GOPAC breached an express warranty contained in the Fairbank
Guarantee. The jury responded “YES” to each of the following questions:
1.
Do you find that GOPAC delivered adulterated raw beef containing E. coli O157:H7
to Fairbank in September 2009?
2.
Do you find that Fairbank acted as a reasonable buyer in using the adulterated raw
beef delivered by GOPAC in September 2009?
3.
Do you find that this same adulterated raw beef, which was ground by Fairbank, was
later consumed by Long causing her injuries and resulting in her receipt of a
settlement of $100,000?
4.
Do you find that this same adulterated raw beef, which was ground by Fairbank, was
later consumed by Smith causing her injuries and resulting in her receipt of a
settlement of $400,000?
(See Special Verdict Form in D. Me. Docket No. 1:09-cv-592-GZS (ECF No. 58-2).) GOPAC
filed post-trial motions and an appeal of this verdict. However, the First Circuit affirmed the
judgment on November 21, 2012 and issued its mandate on December 26, 2012. See generally
Long v. Fairbank Reconstruction Corp., 701 F.3d 1 (1st Cir. 2012).
On November 14, 2011, shortly after the verdict in the Long/Smith trial, Plaintiff Emmie
Jones filed the current case alleging her child, M.J., suffered damages as a result of consuming
adulterated ground beef in September 2009. Essentially, Plaintiff claims M.J. was a victim of the
same 2009 E. coli O157:H7 outbreak that sickened Long and Smith. Unlike Long and Smith
who sued only Fairbank, Jones names both Fairbank and GOPAC as Defendants resulting in the
cross-claims at issue in the pending motion.
4
III.
FACTUAL BACKGROUND
Having reviewed the statements of material fact and supporting exhibits in accordance
with Local Rule 56, the Court constructs the following narrative from the undisputed facts as
well as the disputed material facts viewed in the light most favorable to the non-movant, in this
case, GOPAC.2
Emmie Jones purchased case ready Shaw’s 85/15 ground beef product on September 21,
2009 from the Shaw’s located in Auburn, Maine. (SMF ¶10 & ECF No. 58-8.) Jones’ five-yearold son, M.J., became sick on September 28, 2009. He was ultimately admitted to the hospital
and stool cultures determined that he was infected with E. coli O157:H7. (See Maine DHHS
Investigation File for M.J. (ECF No. 58-13).) During October 2009 interviews conducted by
state health officials investigating M.J.’s illness, Emmie Jones reported that her family had
consumed meat loaf made with the purchased Shaw’s ground beef and she no longer had any
ground beef in her home. (Id.) She also reported that M.J. had consumed shepard’s pie prepared
by his grandmother.3 (Id.)
2
This factual narrative is drawn from the following statements of material fact and the documents cited therein:
Fairbank’s Statement of Material Facts (ECF No. 59) (“SMF”); GOPAC’s Response to SMF & Add’l Statement of
Material Facts (ECF No. 63) (“Add’l SMF”); Fairbank’s Response to GOPAC’s Statement of Add’l Facts (ECF No.
65) (“Add’l SMF Response”); GOPAC’s Supplemental Statement of Material Facts (ECF No. 95) (“Supp. SMF”);
and Fairbank’s Opp. to Supp. SMF (ECF No. 97) (“Supp. SMF Response”). The Court notes to the extent that any
asserted fact was not admitted, the Court has construed any qualified fact by reviewing the cited documents. The
Court has disregarded many statements, qualifications and denials that cite only to representations made by
attorneys in briefs, letters or affidavits. With the possible exception of procedural history, citations to statements by
counsel do not provide the Court with evidence of material facts because statements by lawyers are not evidence that
would be admissible at a trial. See, e.g., infra note 3 (discussing affidavit of Attorney Osterholm).
3
The only records with respect to what ground beef products were served to M.J. in the days and weeks prior to his
illness consists of the Maine DHHS Investigative File (ECF No. 58-13) and an Affidavit of Ryan Osterholm (ECF
No. 58-12), who is Plaintiff’s counsel. With respect to the key issue in this case—what, if any, beef M.J. ate prior to
becoming ill on September 28, 2009—these records contain multiple levels of hearsay. By way of example, the
only direct evidence that five-year-old M.J. ate his mother’s meatloaf prepared between September 21, 2009 and
September 28, 2009 is the statement contained in the Affidavit of Attorney Ryan Osterholm. (See Osterholm Aff.
¶7.) In short, the summary judgment record does not provide an adequate evidentiary basis upon which the Court
could conclude that M.J.’s only relevant beef exposure was Shaw’s case ready ground beef, which would be the first
step in establishing undisputed causation in this case.
5
Investigation by federal and state authorities in October 2009 tied an increased number of
E. coli O157:H7 infections, including M.J.’s infection, to exposure to ground beef produced by
Fairbank.4
This investigation included pulsed-field gel electrophoresis (PFGE) testing and
multiple loci VNTR analysis (MLVA) of cultures taken from multiple sick individuals, including
M.J., Long and Smith. (See Compl. (ECF No. 1) ¶¶11-12; GOPAC Answer (ECF No. 7) ¶¶1112; SMF ¶14.) These test results were used by health officials to conclude that the individuals
tested were all sickened as part of what came to be known as the “2009 Northeast Outbreak.” A
chart produced as part of the USDA investigation of the 2009 Northeast Outbreak included the
Jones’ purchase as one of twelve ground beef purchases used to trace the Northeast Outbreak
back to Fairbank’s Ashville facility. Margaret Long was included on this same trace-back chart.5
(SMF ¶11 & ECF No. 58-9 at Page ID 703.) Ultimately, on October 31, 2009, USDA Food
Safety and Inspection Service announced a recall of Fairbank’s ground beef products, this recall
covered products Fairbank had produced between September 14, 2009 and September 16, 2009,
which the USDA believed to be the source of the 2009 Northeast Outbreak. (See Compl. ¶¶1617; GOPAC Answer ¶¶ 16-17.)
Since that recall, multiple individuals sickened as part of the 2009 Northeast Outbreak
have sought damages from Fairbank.
Fairbank, in turn, has sought indemnification from
GOPAC, as a supplier, under the terms of their express contract, which includes the Fairbank
Guarantee. (SMF ¶¶1 & 2; ECF No. 58-3.)
The Fairbank Guarantee requires GOPAC to
indemnify Fairbank from “all claims, damages, causes of action, suits, proceedings, judgments,
charges, losses, costs, liability and expenses (including attorneys’ fees) arising from any products
4
This 2009 investigation did not attempt to trace the E. coli O157:H7 back beyond Fairbank. Thus, the
governmental investigation included no finding that GOPAC or any other Fairbank supplier was the definitive
source of the E. coli O157:H7 contamination. (See, e.g., GOPAC Response (ECF No. 62) at 10.)
5
This chart was introduced at the Long/Smith trial as part of Exhibit 129. (See Long/Smith Trial Tr. at 414-14.)
6
(raw materials)” that GOPAC delivered to Fairbank that did not meet Fairbank’s specifications.
(SMF ¶3 & ECF No. 58-3.) These specifications include a requirement that the products
delivered to Fairbank be not adulterated as defined in the Meat, Poultry and Inspection Act,
including being free from adulteration with E. coli O157:H7.
GOPAC has disputed both that it breached the Fairbank Guarantee and that any GOPAC
breach is the cause of any costs or damages Fairbank incurred as a result of the 2009 Northeast
Outbreak. This dispute was first tried in the Long/Smith case. It was also litigated before the
District of New Hampshire in a case titled: Precourt v. Fairbank Reconstruction Corp., 1:10-cv337-LM (D.N.H.). The factual record developed in these two cases serves as the foundation for
the additional factual development that has occurred in this case.
A. The First Case to Go to Trial: Long/Smith Cases
By the time of the Long/Smith trial in November 2011, Fairbank and GOPAC both
agreed that Long and Smith had suffered damages as a result of E. coli O157:H7 and that both
women had contracted E. coli O157:H7 from ground beef produced by Fairbank. (SMF ¶8.) At
trial, the evidence presented showed that Smith spent $5.83 to purchase case ready 85/15 ground
beef product from a Shaw’s in Portland, Maine (a/k/a Shaw’s Westgate) on September 23, 2009.
Long spent $2.31 to purchase case ready 85/15 ground beef product from a Shaw’s in Augusta,
Maine on September 19, 2009. (Long/Smith Trial Tr. at 680-81, 686 & 691; Supp. SMF ¶16;
Supp. SMF Response ¶21.) During this 2009 time period, Shaw’s case ready 85/15 ground beef
product was produced by Fairbank at its Ashville facility.
The undisputed testimony at the Long/Smith trial was that Fairbank delivered case ready
ground beef to a Shaw’s distribution center in Methuen, Massachusetts. Shaw’s then “cross
docked” the product so that it is sent it out to various stores “that day.” (Add’l SMF ¶¶ 24-25;
7
Long/Smith Trial Tr. at 591.) Fairbank assigned product code 30085 to one-pound packages of
85/15 ground beef that were shipped to Shaw’s Methuen distribution center. (Add’l SMF ¶33.)
Much of the focus of the trace-back evidence at the Long/Smith trial eventually focused
on Shipping Invoice No. 30243 and its accompanying Load Plan Checklist, which was
introduced into evidence at the Long/Smith Trial as Exhibit 142. (Add’l SMF ¶39.) Shipping
Invoice No. 30243 reflects the shipment of 1,200 cases of product code 30085 85/15 ground beef
from Fairbank’s Ashville facility to Shaw’s Methuen Distribution facility. (Fairbank Shipping
Invoice 30243 (ECF No. 63-14).). This product was received at the Methuen distribution center
on September 18, 2009. (Id.) Additionally, Fairbank introduced Shipping Invoice 30245 as
Exhibit 143. Invoice 30245 shows that on September 18, 2009, Fairbank delivered 1,200 cases
of product code 30086 85/15 ground beef (case ready two pound packages) to Shaw’s Methuen
Distribution center.6 (See Supp. SMF ¶2 & ECF No. 95-2.)
Fairbank’s shipping invoices are accompanied by weight manifests. (Add’l SMF ¶52.)
Weight manifests provide the serial numbers for the products contained on a shipment. (Add’l
SMF ¶53.) The Weight Manifest for Shipping Invoice No. 30243 lists the serial numbers for all
1,200 boxes of 30085 product shipped to Shaw’s central distribution in Methuen, MA. (Add’l
SMF ¶54.). The Weight Manifest for Invoice No. 30243 reveals that the first serial number
greater than serial no. 66462425 (the earliest product made on September 16, 2009) is serial no.
66467160.7 (Add’l SMF ¶66 & Add’l SMF Response ¶59.) Serial no. 66467160 was made on
6
During the appeal of the Long/Smith case, Fairbank’s counsel indicates that Shipping Invoice 30245 maintained the
connection between contaminated Fairbank meat and Smith, who at that time was thought to have possibly
purchased a two-pound package of ground beef because of the purchase price ($5.83). (Supp. SMF ¶3.)
7
Based on a Fairbank quality control mechanism known as “case verification code,” GOPAC attempts to tie specific
serial numbers to precise times during the production day. Notably, Fairbank uses several systems to assign serial
numbers to products that are produced simultaneously on different production lines. As a result the serial numbers
are not necessarily chronological. (Add’l SMF Response ¶57.) Nonetheless, the Court acknowledges that the
following facts have been admitted for purposes of the pending motion: (1) The first Case Code Verification for
8
September 16, 2009 after 1:42 p.m. (Add’l SMF ¶¶67 & 68.)8 Ultimately, the Weight Manifest
for Shipping Invoice No. 30243 contained serial numbers for product Fairbank produced on both
September 15, 2009 and September 16, 2009. (Add’l SMF ¶¶42 & 55.) Thus, much of the traceback evidence at the Long/Smith trial necessarily focused on what raw materials went into
Fairbank’s product code 30085 production on these dates that was subsequently shipped under
Invoice 30243.
At the Long/Smith trial, GOPAC disputed that the ground beef shipped under Invoice
30243 in fact contained GOPAC 50/50 sirloin trim produced on September 11, 2009. GOPAC
sought to establish that product from another supplier, BPI, was in fact used in every implicated
batch of Fairbank ground beef. (Add’l SMF ¶¶18 & 44.) However, the record at the Long/Smith
trial reflected that different BPI products were used in the relevant batches of Fairbank’s ground
beef production. (Add’l SMF Response ¶44.)
Fairbank, on the other hand, produced multiple witnesses who tied the 2009 Northeast
Outbreak to GOPAC 50/50 sirloin trim. Tim Biela, a Fairbank executive, testified that Fairbank
had received five combo bins of raw 50-50 sirloin from GOPAC on September 13, 2009, which
GOPAC had produced on September 11, 2009. (Add’l SMF ¶31.) Fairbank’s expert Alan
Melnick opined that the contaminated raw beef trim that sickened Long and Smith was GOPAC
50-50 sirloin. (Add’l SMF ¶30.) Melnick also testified that 50/50 sirloin trim was the only
September 16, 2009 is at 06:58 a.m. and has serial no. 66462425. (Add’l SMF ¶58.); (2) The Case Code
Verification taken at “pack time” 12:36 indicates that Fairbank was running at serial no. 66465440. (Add’l SMF
¶63.); (3) The Case Code Verification taken at “pack time” 14:12 indicates that Fairbank was running at serial no.
66466572. (Add’l SMF ¶64.)
8
The Court deems paragraphs 47 & 68 of GOPAC’s Additional Statement of Material Facts admitted because
Fairbank supported its initial denials, see Add’l SMF Response ¶¶ 47 & 68, with a citation that it has since
withdrawn. (See Fairbank’s Opp. to GOPAC’s Mot. for Leave to Sur-Reply (ECF No. 67) at 1 (withdrawing Fahle
Ex. A (ECF No. 64-2).)
9
common raw material used in the products implicated in the 2009 Northeast Outbreak. (Supp.
SMF ¶1.)
A chart made by USDA Food Safety Inspection Service investigator, Dr. Deborah Lutz
reflected earlier trace-back work done during the government investigation of the 2009 Northeast
Outbreak. This chart was marked as part of Exhibit 131 at the Long/Smith trial. (Suppl. SMF
¶5. & ECF No. 95-4 at Page ID# 2553.) The chart focuses on Fairbank products processed
between noon on September 14, 2009 and 1:10 pm on September 16, 2009 and lists serial
numbers 324432, 324433 and 324438.9
As explained at the Long/Smith trial, these serial
numbers reflect numbers Fairbank applied to each combo bin of raw material received at its
Ashville facility and the serial numbers “track raw material . . . and when those raw materials
were used in the production.” (Long/Smith Trial Tr. 432.) The three listed serial numbers were
assigned to GOPAC combo bins. (Suppl. SMF ¶10.) As reflected on Long/Smith Exhibit 131,
Dr. Lutz listed no other raw materials other than GOPAC combos with the relevant serial
numbers as part of the 2009 USDA trace-back of the Northeast Outbreak. (Suppl. SMF ¶¶6 &
11.)
Given the production times listed on this Lutz chart, GOPAC sought to establish that
product shipped on Invoice 30243 was made outside those production windows and/or was not
made with GOPAC sirloin trim.
By way of example, GOPAC points to Fairbank’s lab audit sheets, which reflect
information randomly gathered as part of Fairbank’s quality control program. A Fairbank lab
audit sheet for September 16, 2009 shows that Fairbank produced 30085 product using batch C5
9
This same chart lists these serial numbers and many other serial numbers under the “chub” category. Fairbank’s
“chub” product was not at issue in Long/Smith and is not at issue in Jones since Shaw’s only purchases “retail” case
ready product from Fairbank. (Long/Smith Trial Tr. at 433.) However, ten pound chubs that were sold to Price
Chopper for regrinding and repackaging at the store were implicated in the Northeast Outbreak and part of the
government trace-back investigation.
10
during the 13:00 hour. (Add’l SMF ¶¶ 46-48.)10 This is the only 30085 product reflected on the
sheet as being produced during the 7:46 a.m.-1:42 p.m. period on September 16, 2009. (Id.)
Fairbank’s retail formulation sheets identify which suppliers’ products were used in batch C5.
(Add’l SMF ¶49.) The Fairbank retail formulation sheet for September 16, 2009, indicates that
batch C5 was a batch weighing 6,755 pounds and included product from six different suppliers.
(Add’l SMF ¶50.) Only 264 pounds of the total amount of batch C5 was GOPAC 50-50 sirloin,
which constituted just 4% of the entire batch. (Add’l SMF ¶51.)
Ultimately, the jury was not swayed by GOPAC’s attempts to counter the trace-back
evidence presented by Fairbank. Rather, based on the entirety of the trial record, which also
included genetic evidence and the epidemiological evidence, the jury concluded the
preponderance of the evidence showed that the ground beef purchased and consumed by Smith
and Long contained adulterated beef trim produced by GOPAC on September 11, 2009. (SMF
¶¶5-7,17 & 18.)
B. The New Hampshire Case: Precourt
Another apparent victim of the 2009 Northeast Outbreak was Carolyn Black, who
purchased ground beef from Shaw’s in Seabrook, New Hampshire on September 24, 2009.
Black was admitted to the hospital on October 4, 2009 and subsequently died on October 30,
2009 as a result of injuries sustained as a result of her exposure to E. coli O157:H7. See Precourt
v. Fairbank Reconstruction Corp., 856 F. Supp. 2d 327, 331 (D.N.H. 2012). Lori Precourt, as the
administrator of the estate of her mother, filed a case in federal district court in New Hampshire,
Precourt v. Fairbank Reconstruction Corp., D.N.H. Docket # 1:10-cv-337-LM (hereinafter
10
The Court notes that this information was included as part of Plaintiff Exhibit 1 at the Long/Smith trial.
11
“Precourt”), naming Fairbank, GOPAC, and Shaw’s11 as defendants. See id. at 330. The law
firm of Gass Weber represented both Fairbank and Shaw’s. (Add’l SMF ¶23.) On December
21, 2011, following the conclusion of the Long/Smith trial, Shaw’s produced some
documentation regarding shipments from its Methuen distribution center to its grocery stores.
(Add’l SMF ¶24 & ECF No. 63-9) The Shaw’s documentation includes information regarding
how much of a particular product was shipped to a particular Shaw’s store on a particular day but
it does not identify particular packages received from Fairbank Farms. (Id.) Nonetheless, based
on this post-Long/Smith trial production, GOPAC now asserts that it has new evidence to prove
that one of the patients listed on the Lutz wheel chart could not have purchased ground beef off
of Shipping Invoice 30243. Rather, GOPAC would assert based on Shaw’s records that the
Enfield, Connecticut store did not receive any product code 30085 ground beef that was shipped
on Shipping Invoice 30243.12 (Add’l SMF ¶¶27-29.)
C. The Current Case: Jones
Building on discovery obtained in prior cases and with the benefit of many of the initial
legal questions resolved, GOPAC has continued to press Fairbank for additional discovery in the
pending case. As a result of these efforts, Fairbank for the first time produced stand-alone
electronic scale data on May 7, 2013.
(Supp. SMF ¶14 & Supp. SMF Response ¶14.)
Fairbank’s stand-alone scale data provides date, item #, description, weight, and time (“scale
data”).
(Suppl. SMF ¶17.)
Fairbank’s Weight Manifest for Invoice 30243 coupled with
Fairbank’s recently produced scale data establishes that Invoice 30243 contained no production
from September 16, 2009, made before 3:00 p.m. (Suppl. SMF ¶8.)
11
Shaw’s was not a party to the Long/Smith cases and it is not a party to the instant Jones action. (Add’l SMF ¶21.)
12
The Precourt case was ultimately settled before trial in March 2012 with a stipulation of dismissal filed on May
17, 2012. See Precourt D.N.H. Docket # 1:10-cv-337-LM at ECF Nos. 167 & 169.
12
Additionally, GOPAC now has obtained evidence that calls into question the trace-back
conducted on Smith’s ground beef purchase. On February 21, 2013, GOPAC first deposed a
representative of Shaw’s, Edward Rodericks, who testified that on September 19 and 20 of 2009,
Shaw’s was selling ground beef for a promotional price of $1.88 per pound. (See Rodericks
Dep. (ECF No 97-7) at 148.) If this promotional price were applied to the purchases by Smith, it
would appear that she purchased a three pound package of case ready ground beef from Shaw’s
in Portland during her September 23, 2009 visit. If Smith purchased a three pound package of
ground beef, it was not shipped under Shipping Invoice 30243 (which contained only one pound
packages) or Shipping Invoice 30245 (which contained only two pound packages).
Moreover, having conducted further review in response to the discovery requests and
disputes in the pending case, Fairbank now admits that product shipped under Invoice 30243
contained GOPAC chuck trim, which Fairbank also claims GOPAC produced on September 11,
2009.13 (Supp. SMF ¶12 & Supp. SMF Response ¶12.)
IV.
DISCUSSION
Fairbank initially pled four cross-claims against GOPAC: (1) Breach of Contract, (2)
Contractual Indemnity, (3) Contribution and Indemnity on Plaintiff’s Strict Liability Claim (pled
in the alternative), (4) Contribution and Indemnity on Plaintiff’s Breach of Warranty Claims
(pled in the alternative), (5) Contribution and Indemnity on Plaintiff’s Negligence Claim (pled in
the alternative). (See Fairbank Ans. & Cross-Claims (ECF No. 18) at 28-34.) Those crossclaims were subsequently limited as a result of the Court granting GOPAC’s Partial Motion to
13
In its supplemental submissions, Fairbank claims that GOPAC chuck trim was used in batch C6, which was made
immediately following batch C5. Fairbank now asserts batch C5 contained the adulterated GOPAC sirloin trim.
(See Supp. SMF Response ¶¶6 & 13.)
13
Dismiss on September 11, 2012. (See Order on Partial Motion to Dismiss Cross-Claims (ECF
No. 55). As a result of that Order, Fairbank’s Count I Cross-Claim was dismissed without
prejudice and the Count II Cross-Claim was limited to “contractual indemnity for any amounts
related to Plaintiff’s claims.” (Id. at 10-11.) In its pending Motion for Summary Judgment,
Fairbank now argues it is entitled to summary judgment on this remaining contractual
indemnification claim based on the outcome of the Long/Smith trial and the available undisputed
evidence linking M.J.’s E. coli O157-H7 to other 2009 Northeast Outbreak cases, including Long
and Smith.14
A. Collateral Estoppel
Turning first to Fairbank’s collateral estoppel argument, GOPAC certainly anticipated
that the verdict in the Long/Smith trial would likely result in some amount of issue preclusion.
(See Long/Smith Tr. Transcript at 1320 (Counsel for GOPAC indicating that “issue preclusion”
is “the gorilla in this room” during a conference on the proposed verdict form).15 Thus, the
question is really to what extent does offensive collateral estoppel apply? See, e.g., Acevedo–
Garcia v. Monroig, 351 F.3d 547, 573 (1st Cir. 2003) (“[W]here . . . plaintiffs seek to use issue
preclusion to tie the defendants’ hands with an adversely decided issue from a previous case, the
use of collateral estoppel is deemed ‘offensive’.”) In other words, which legal rulings and
portions of the special verdict rendered at the Long/Smith trial foreclose GOPAC from re14
To the extent GOPAC initially opposed Fairbank’s summary judgment motion pursuant to Rule 56(d) claiming
additional discovery was required, the Court notes that GOPAC has had ample time to complete additional
discovery. In fact, the deadline for completion of fact discovery was February 12, 2013. Based on the Court’s
review of the docket, even in the absence of any court-approved extension of that deadline, it appears the parties
continued to engage in fact discovery after the February deadline. (See, e.g., Reports of Hearing & Orders (ECF
Nos. 80 & 86); 7/16/2013 Dep. of Timothy Biela (ECF Nos. 100-1) at 5 (counsel acknowledging 2/12/2013
discovery deadline but indicating that electronic data was produced after that deadline).) In any event, it does
appear that factual discovery in this case is now closed and the Court has allowed supplemental briefing to reflect
that discovery. Therefore, the Court deems GOPAC’s Rule 56(d) request MOOT.
15
In fact, GOPAC proposed a different verdict form and the Court refused to adopt GOPAC’s proposed form. (See
Long/Smith Trial Tr.at 1329 & 1407; GOPAC’s Proposed Verdict Form (ECF No. 393-5 in D. Me. Docket # 1:09cv-592-GZS).)
14
litigating issues raised in the similar cross-claims in the pending case. Fairbank specifically
argues that GOPAC should be collaterally estopped from re-litigating the following issues:
(a) that the Fairbank Guarantee was the operative contract between the parties; (b)
that GOPAC violated the Fairbank Guarantee by supplying Fairbank adulterated raw
beef trim containing E. coli O157:H7; (c) that Fairbank acted as a reasonable buyer
within the meaning of UCC § 2-715 when it used GOPAC’s contaminated trim
without discovering the E. coli contamination; and (d) that Fairbank used GOPAC’s
contaminated raw trim to produce the case ready Shaw’s 85/15 products that
sickened Ms. Long and Ms. Smith.
(Fairbank Mot. for S.J. (ECF No. 58) at 5.)
Generally, “collateral estoppel bars re-litigation of any issues that were, or could have
been, brought in a previous action for which judgment was rendered.” Núnéz Colón v. Toledo
Dávila, 648 F.3d 15, 19 (1st Cir. 2011) (citing Barreto–Rosa v. Varona–Mendez, 470 F.3d 42, 45
(1st Cir. 2006)). “Collateral estoppel may apply as validly to issues of fact as to issues of law.”
Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 2 (1st Cir. 1983). The mere proffer of
“more or better evidence” cannot serve as a basis for denying the use of offensive collateral
estoppel when a party has had a chance to litigate and prove an identical issue. Id.
When Fairbank and GOPAC litigated the preclusive effect of the Long/Smith verdict in
Precourt v. Fairbank Reconstruction Corp., 856 F. Supp. 2d 327 (D.N.H. 2012), the District of
New Hampshire summarized the applicable First Circuit case law on collateral estoppel:
Collateral estoppel may be applied where (1) the issue sought to be precluded
in the later action is the same as that involved in the earlier action; (2) the issue
was actually litigated; (3) the issue was determined by a valid and binding final
judgment; and (4) the determination of the issue was essential to the judgment.
Precourt, 856 F. Supp. 2d at 337 (internal citations and quotations omitted). In the Court’s
assessment, this four-part test is satisfied with respect to the following issues:
15
(1) The Fairbank Guarantee governed the relationship between GOPAC and Fairbank during
the relevant time period;16
(2) GOPAC delivered adulterated ground beef containing E. coli O157:H7 to Fairbank in
September 2009; and
(3) Fairbank acted as a reasonable buyer in using the adulterated ground beef by GOPAC in
September 2009.
These three issues are raised by Fairbank’s pending contractual cross-claims and are identical to
the express warranty issues litigated and determined in the Long/Smith case. The determination
of these three issues was undoubtedly essential to judgment. Therefore, the Court concludes that
the prior final verdict and judgment entered as a result of the Long/Smith trial and later affirmed
by the First Circuit does collaterally estop both parties from re-litigating the listed issues at any
future trial on the pending claims. See Precourt, 856 F. Supp. 2d at 337-340 (similarly finding
collateral estoppel prevents re-litigation of these three issues following the Long/Smith trial).
B. The Preclusive Effect of the Long & Smith Causation Findings
Building on the three findings just discussed, the jury in the Long/Smith case made two
specific causation findings:
1. Adulterated raw beef, which GOPAC delivered to Fairbank in September 2009
and which Fairbank then ground, was later consumed by Long causing her
injuries and resulting in her receipt of a settlement of $100,000.
2. Adulterated raw beef, which GOPAC delivered to Fairbank in September 2009
and which Fairbank then ground, was later consumed by Smith causing her
injuries and resulting in her receipt of a settlement of $400,000.
16
This issue was decided as a matter of law before trial. See Long v. Fairbank Farms, Inc., No. 1:09-cv-592, 2011
WL 2516378 at *17-*19 (D. Me. 5/31/2011) (Recommended Decision) & 2011 WL 2669199 (D. Me. 7/7/2011)
(affirming Recommended Decision). As a result, the jury was tasked with determining whether GOPAC had
breached the Fairbank Guarantee.
16
(See Special Verdict Form in D. Me. Docket No. 1:09-cv-592-GZS (ECF No. 58-2) (questions 3
&4).)
The pending case does not raise an identical causation question that can be definitively
answered by these findings. Rather, this case poses a unique causation question not posed or
answered in the Long/Smith case: Did M.J. consume adulterated beef that Fairbank had ground
from GOPAC adulterated raw beef? Absent evidence suggesting that M.J. ate from the same
package of ground beef consumed by Long or Smith, the causation findings from the Long/Smith
trial do little, if anything, to prove the proximate cause of M.J.’s injuries by a preponderance of
the evidence. Far from establishing a shared dining experience, the undisputed record currently
before the Court shows only that Emmie Jones, M.J.’s mother, purchased her family’s Shaw’s
ground beef at a different store and on a different day from either Long or Smith.17
Nonetheless, in its written submissions, GOPAC perseverates on how its newly
developed evidence undermines the trace-back foundation for the causation findings from the
Long/Smith case. These proffers and arguments are a day late and a dollar short. GOPAC’s
futile challenges to Fairbank’s prior trace-back are premised on issues that were not essential to
the Long/Smith verdict. By way of example, the Long/Smith verdict does not reflect an essential
determination that only ground beef shipped under Fairbank Shipping Invoice 30243 or 30245
contained E. coli O157:H7 contamination, nor does it contain an essential determination that all
of the implicated ground beef products were produced by Fairbank prior to 1:42 p.m. on
September 16, 2013, nor does it reflect an essential determination that only GOPAC 50/50 sirloin
trim contained E. coli O157:H7 contamination (as compared to GOPAC chuck trim). The
17
Additionally, although not officially part of the summary judgment record, the more recent filings with the Court
suggests that Fairbank now claims that the 85/15 ground beef that caused M.J.’s illness potentially was shipped from
Fairbank to Shaw’s on September 19, 2009 under an entirely different shipping invoice, Invoice 30247. (See
3/27/2013 Stevens Letter (ECF No. 95-5) at 6 n.1; Fairbank Reply (ECF No. 64) at 5; GOPAC Sur-Reply (ECF No.
73) at 8).
17
Long/Smith verdict simply does not rest solely on a particular Fairbank Invoice or the use of
GOPAC 50/50 sirloin trim. As the First Circuit noted, there were multiple strains of “strong”
circumstantial evidence that supported the causation findings reflected in the Long/Smith verdict.
See Long, 701 F.3d at 4.
What was conclusively decided by the Long/Smith trial and essential to the previous
judgment: GOPAC’s breach of the Fairbank Guarantee caused the 2009 E. coli O157:H7
injuries of both Long and Smith. See Pignons, 701 F.2d at 2 (noting that attempts to re-litigate
decided matters are barred “[w]hether the holding was right or wrong”). Thus, to the extent that
the cause of Long or Smith’s O157:H7 infection is relevant to the question of M.J.’s causation,
GOPAC is collaterally estopped from arguing or presenting evidence suggesting that Long or
Smith did not consume adulterated GOPAC trim or that their illness was caused by some other
source of E. coli O157:H7.18
C. GOPAC had a Full and Fair Opportunity to Litigate in the Long/Smith case.
GOPAC also opposes Fairbank’s request for issue preclusion on the grounds that it was
denied a full and fair opportunity to litigate Fairbank’s trace-back theory at the Long/Smith trial.
It is true that a court may decline to apply offensive estoppel upon a finding of unfairness. See
Precourt, 856 F. Supp. 2d at 338-39 (collecting cases). Upon full consideration of the record in
this case and the Long/Smith case, the Court finds no unfairness to GOPAC as a result of the
preclusion ordered herein.19
18
To be clear, unlike the other three issues to which the Court finds collateral estoppel applies, the Court explicitly
reserves ruling on whether it would even allow these causation findings to be entered into evidence at a future trial
to establish whether GOPAC was the proximate cause of M.J.’s injuries. See infra note 20.
19
Even if GOPAC’s fairness arguments were deemed valid, it would not provide a basis for denying collateral
estoppel on the issues wholly unrelated to trace-back and proximate cause. These issues include: (1) the
applicability of the Fairbank Guarantee, (2) the finding that GOPAC delivered raw beef containing E. coli O157:H7
to Fairbank in September 2009; and (3) the finding that Fairbank acted as a reasonable buyer in using that
18
In its initial opposition to the pending motion, GOPAC claimed the denial of a full and
fair opportunity to litigate resulted from Fairbank’s reliance on Shipping Invoice 30243 at trial.
GOPAC maintains it came to the Long/Smith trial believing Fairbank’s trace-back for Long and
Smith relied on Shipping Invoice 30236 given the pretrial discovery obtained. (See GOPAC
Response (ECF No. 62) at 7-9.) This particular argument is without merit. The Court readily
concludes that GOPAC had a full and fair opportunity to litigate Fairbank’s trace-back of the
Long and Smith ground beef purchases, including the opportunity to cross-examine witnesses
who had earlier indicated a reliance on Shipping Invoice 30236 as the invoice under which
Fairbank shipped the adulterated ground beef in question. (See Long/Smith Trial Tr. 599-602,
858, 862-64; 869-72; 1358-64 (closing argument); Long/Smith Ex. 1211.) To quote once again
from the Precourt decision: “A party may have a full and fair opportunity to litigate an issue on
which it does not prevail. That happens every day, and that is what happened here.” 856 F.
Supp. 2d at 338.
More recently, GOPAC again reasserted that it was denied a full and fair opportunity to
litigate in the Long/Smith case because it did not obtain the discovery it has since obtained in the
present case. This argument is also without merit. The difference between the discovery
GOPAC obtained in this case and the discovery it obtained in the Long/Smith case reflects hardfought discovery battles and the strategic choices of GOPAC’s counsel. To be clear, those
strategic choices reasonably reflected the sheer number of to-be-resolved legal questions first
presented in the Long/Smith case. By comparison, in the context of this case, the legal questions
have been refined and winnowed. As a result, GOPAC’s counsel understandably has refocused
its efforts on challenging Fairbank’s trace-backs and obtaining electronic discovery to further
adulterated beef. Nothing in GOPAC’s filings in opposition have provided any basis for denying collateral estoppel
in these three identical issues.
19
that challenge. Quite simply, this does not amount to a denial of an opportunity to litigate and
cannot block the application of collateral estoppel.
D. The Cause of M.J.’s E. coli O157:H7 is Genuinely Disputed
Ultimately, Fairbank argues that the undisputed factual record related to M.J. combined
with the preclusive effect of the Long/Smith judgment proves it is entitled to judgment as a
matter of law on its contractual cross-claims against GOPAC. The Court disagrees.
The record presented in this case does not provide an undisputed factual basis upon
which this Court can determine that adulterated GOPAC beef was the cause of the injuries for
which M.J. seeks damages in this case. In fact, it is not clear on the undisputed record currently
before the Court that M.J. in fact consumed Shaw’s 85/15 case ready ground beef in the days
prior to his illness and that this consumption was his only beef exposure. On this basis alone,
Fairbank has failed to establish that it is entitled to summary judgment.
Notably, in Precourt, the district court similarly ruled that Fairbank was not entitled to
summary judgment on its crossclaims against GOPAC as a result of collateral estoppel. See id.
at 337. Rather, the Court concluded that there was not “undisputed evidence linking Black’s
illness and death to the beef trim GOPAC delivered to Fairbank.” Id. Likewise, in this case, the
factual record linking M.J.’s illness to the adulterated GOPAC combos of beef trim is, at best,
genuinely disputed. As a result, this Court, like the District of New Hampshire in Precourt,
cannot grant Fairbank full summary judgment on its contractual indemnity cross-claim. Having
concluded that causation presents a trialworthy question, the parties to the pending case are
entitled to have a full opportunity to litigate whether it can be established by a preponderance of
the evidence that adulterated GOPAC beef trim was used to make the Shaw’s case ready ground
20
beef purchased by Emmie Jones and whether M.J.’s consumption of the same ground beef
caused M.J.’s illness and injuries in October 2009.20
V.
CONCLUSION
For reasons just explained, Fairbank’s Motion for Summary Judgment is hereby
GRANTED IN PART AND DENIED IN PART. In accordance with Federal Rule of Civil
Procedure 56(g), at any future trial on the cross-claims asserted by Fairbank, the following facts
and legal conclusions shall be deemed established:
(1) The Fairbank Guarantee governed the relationship between GOPAC and Fairbank during
the relevant time period;
(2) GOPAC delivered adulterated ground beef containing E. coli O157:H7 to Fairbank in
September 2009; and
(3) Fairbank acted as a reasonable buyer in using the adulterated ground beef by GOPAC in
September 2009.
As explained herein, if the Court allows presentation of the prior causation findings for
Long and Smith, GOPAC will also be collaterally estopped from arguing or presenting evidence
suggesting that Long or Smith did not consume adulterated GOPAC trim or that their illness was
caused by some other source of E. coli O157:H7.
Pursuant to the Court’s December 26, 2012 Order (ECF No. 72) approving an
amendment to the scheduling order, Plaintiff’s disclosure of expert witnesses and reports shall
20
To the extent that any party anticipates that Fairbank will attempt to meet its burden with respect to M.J.’s
proximate cause by piggybacking on the prior proximate cause determinations made for Long and Smith, the Court
expects that the parties will file a motion in limine in order to allow the Court to determine whether there is a
sufficient foundation for such reliance and to what extent evidence to rebut any proffered piggybacked proof would
be allowed without running afoul of the collateral estoppel determination made in this Order.
21
occur no later than 14 days after the docketing of this Order. Defendants’ disclosure shall occur
no later than 20 days after Plaintiff’s disclosure.
Absent further order of this Court, after the passage of these extended expert report
deadlines, the Clerk is directed to place this case on the Court’s next available civil trial list,
which, absent any extension, shall be the March 2014 Trial List.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 13th day of November, 2013.
22
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