Wieczorek v. The Coca-Cola Company

Filing 158

ORDER - both parties' motions for summary judgment 108 and 115 are DENIED. Additionally, the Court finds that any ruling on the motions to strike expert testimony would be premature given the questions of fact remaining in this case. Those motions 113 and 120 are DENIED. Parties are to meet and confer to develop a Joint Proposed Discovery Plan, which shall be filed with the Court on or before 2/26/16. If the parties cannot agree on particular aspects of the Proposed Plan, they sho uld file a statement indicating the aspects upon which they disagree and setting forth their respective positions.[64 in 4:12-cv-00963-FJG, 59 in 4:13-cv-00080-FJG, 89 in 4:12-cv-00789-FJG, 67 in 4:12-cv-00931-FJG, 92 in 4:12-cv-00766-FJG, 89 in 4:12 -cv-00308-FJG, 81 in 4:12-cv-00769-FJG, 120 in 4:12-md-02361-FJG, 90 in 4:12-cv-01247-FJG, 80 in 4:12-cv-00770-FJG, 84 in 4:12-cv-00765-FJG, 65 in 4:12-cv-00932-FJG, 31 in 4:14-cv-00645-FJG, 75 in 4:12-cv-00994-FJG, 89 in 4:12-cv-00790-FJG, 91 in 4:1 2-cv-00771-FJG) MOTION for Order (SEALED); 115 in 4:12-md-02361-FJG, 75 in 4:12-cv-00770-FJG, 86 in 4:12-cv-00771-FJG, 70 in 4:12-cv-00994-FJG, 84 in 4:12-cv-00789-FJG, 76 in 4:12-cv-00769-FJG, 60 in 4:12-cv-00932-FJG, 87 in 4:12-cv-00766-FJG, 62 i n 4:12-cv-00931-FJG, 54 in 4:13-cv-00080-FJG, 26 in 4:14-cv-00645-FJG, 79 in 4:12-cv-00765-FJG, 84 in 4:12-cv-00308-FJG, 84 in 4:12-cv-00790-FJG, 85 in 4:12-cv-01247-FJG, 59 in 4:12-cv-00963-FJG) MOTION for Order (SEALED), (82 in 4:12-cv-00308-FJG, 57 in 4:12-cv-00963-FJG, 74 in 4:12-cv-00769-FJG, 73 in 4:12-cv-00770-FJG, 113 in 4:12-md-02361-FJG, 83 in 4:12-cv-01247-FJG, 77 in 4:12-cv-00765-FJG, 60 in 4:12-cv-00931-FJG, 82 in 4:12-cv-00790-FJG, 58 in 4:12-cv-00932-FJG, 85 in 4:12-cv-00766-FJG , 82 in 4:12-cv-00789-FJG, 84 in 4:12-cv-00771-FJG, 52 in 4:13-cv-00080-FJG, 68, (72 in 4:12-cv-00765-FJG, 52 in 4:12-cv-00963-FJG, 53 in 4:12-cv-00932-FJG, 77 in 4:12-cv-00790-FJG, 55 in 4:12-cv-00931-FJG, 80 in 4:12-cv-00766-FJG, 78 in 4:12-cv-0124 7-FJG, 77 in 4:12-cv-00789-FJG, 68 in 4:12-cv-00770-FJG, 69 in 4:12-cv-00769-FJG, 108 in 4:12-md-02361-FJG, 63 in 4:12-cv-00994-FJG, 79 in 4:12-cv-00771-FJG, 47 in 4:13-cv-00080-FJG, 77 in 4:12-cv-00308-FJG, 19 in 4:14-cv-00645-FJG) MOTION for Orde r (SEALED)]. Signed on 2/8/16 by District Judge Fernando J. Gaitan, Jr. Associated Cases: 4:12-md-02361-FJG, 4:12-cv-00308-FJG, 4:12-cv-00765-FJG, 4:12-cv-00766-FJG, 4:12-cv-00769-FJG, 4:12-cv-00770-FJG, 4:12-cv-00771-FJG, 4:12-cv-00789-FJG, 4:12-cv-00790-FJG, 4:12-cv-00931-FJG, 4:12-cv-00932-FJG, 4:12-cv-00963-FJG, 4:12-cv-00994-FJG, 4:12-cv-01247-FJG, 4:13-cv-00080-FJG, 4:14-cv-00645-FJG(Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

IN RE: SIMPLY ORANGE ORANGE
JUICE MARKETING AND SALES
PRACTICES LITIGATION

MDL No. 2361
Master Case No. 4:12-md-02361-FJG

This Document Relates To: ALL CASES

ORDER
Reopened and pending before the Court are (1) Defendant’s Motion for
Summary Judgment (Doc. No. 108), (2) Defendant’s Motion to Strike the Expert Reports
and Testimony of Dan Kimball and John Specchio (Doc. No. 113); (3) Plaintiffs’ Motion
for Partial Summary Judgment (Doc. No. 115); and (4) Plaintiffs’ Motion to Strike
Certain Testimony of Russell Rouseff (Doc. No. 120).
On April 3, 2015, the Court held oral argument on the pending motions for
summary judgment.

On April 17, 2015, the parties filed supplemental memoranda

regarding their pending motions for summary judgment, including written responses to
the oral arguments made by opposing counsel.

See Defendant’s Supplemental

Memorandum (Doc. No. 151) and Plaintiffs’ Supplemental Memorandum (Doc. No.
152). On April 23, 2015, the Court entered an order directing the parties to complete
expedited discovery regarding the specific composition of the “modified orange oil” addback in defendant’s products. The Court also allowed plaintiffs to seek discovery into
the process used by defendant and its third-party suppliers to create the “modified

orange oil,” as well as the source of the contents of the “modified orange oil,” including
the source of the ethyl butyrate fraction. Following this expedited discovery, the parties
filed supplemental suggestions in support and opposition to the previously filed motions
(supplemental suggestions are found at Doc. Nos. 171, 172, 173, 174, 173, 176, 177,
179, 180, and 181).
The Court held supplemental oral argument on the pending motions for summary
judgment and motions to strike experts on January 22, 2016. Upon consideration of all
the contents of the above-referenced documents and any suggestions in opposition or
reply thereto, as well as arguments made at both the April 3, 2015 and January 22,
2016 hearings, the Court is convinced that questions of material fact remain, precluding
summary judgment. Specifically, the Court finds that questions remain as to whether
orange essence oil should be considered orange oil or orange essence under the
relevant FDA regulations.

Additionally, the Court finds that questions remain as to

whether the processing of the oil and/or flavor components in all defendants’ orange
juice products makes those components into something other than ordinary orange oil
or essence which must be disclosed on the products’ labels.

Given the questions

remaining, both parties’ motions for summary judgment (Doc. Nos. 108 and 115) must
be DENIED.
Additionally, the Court finds that any ruling on the motions to strike expert
testimony would be premature given the questions of fact remaining in this case.
Therefore, those motions (Doc. Nos. 113 and 120) are DENIED as well.
In plaintiffs’ presentation to the Court on January 22, 2016, they suggested the
next phase of the case should focus on discovery and experts, including (1) discovery

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on the purpose and design of the flavors; (2) sales and marketing discovery; and (3)
expert disclosures and depositions regarding marketing and damages. The Court notes
that the plaintiffs’ proposals do not mention class certification, which seems to be
another looming issue in this matter. The Court ORDERS the parties to meet and
confer to develop a Joint Proposed Discovery Plan, which shall be filed with the Court
on or before February 26, 2016. If the parties cannot agree on particular aspects of
the Proposed Plan, they should file a statement indicating the aspects upon which they
disagree and setting forth their respective positions.

IT IS SO ORDERED.

Date: February 8, 2016
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge 

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