American Home Assurance Company et al v. Greater Omaha Packing Company Inc.

Filing 461

ORDER denying 277 defendant's motion in limine. Ordered by Senior Judge Lyle E. Strom. (JDR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
AMERICAN HOME ASSURANCE
COMPANY and CARGILL MEAT
SOLUTIONS CORPORATION,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
GREATER OMAHA PACKING COMPANY,)
INC.,
)
)
Defendant.
)
______________________________)

8:11CV270

MEMORANDUM AND ORDER

This matter is before the Court on defendant’s motion
in limine (Daubert) to exclude testimony of plaintiffs’ expert
witnesses Siemens, Marsden, Harrison, Singer, and Melnick (Filing
No. 277) filed by the defendant.

The defendant filed an

accompanying brief (Filing No. 278) and indices of evidence
(Filing Nos. 282, 284, 285, 286 and 287).

The plaintiff filed a

responsive brief (Filing No. 328) and index of evidence (Filing
No. 329).
I.

BACKGROUND
An E. coli outbreak occurred in 2007 and gravely

injured several people.

An investigation traced the E. coli back

to a ground-beef patty manufacturer, Cargill Meat Solutions,
Corp. (“Cargill”), who is the plaintiff in this case along with
American Home Assurance Company (“Assurance”).

The plaintiffs

have brought various contract claims against the defendant,
Greater Omaha Packing, Corp. (“GOPAC”).

Essentially, the

plaintiffs claim that GOPAC sold Cargill meat contaminated with
the E. coli strain in violation of a contract between GOPAC and
Cargill.
Cargill used four sources of beef to produce the ground
beef patties in question.

Those sources were Lone Star Beef

Processors, L.P. (“Lone Star”), Beef Products, Inc. (“BPI”),
Frigorifico PUL (“Frigorifico”),1 and GOPAC.

After production,

Cargill distributed the patties across the United States.

In the

Fall of 2007, multiple people became ill due to E. coli O157:H7
(Filing Nos. 328, at 1; 278, at 3).

The Center for Disease

Control (“CDC”) began to track the illness.

The CDC compiled a

“Line List” which comprised 54 persons affected by the E. coli
outbreak.

After identifying the 54 people affected by the E.

coli strain, the CDC found that 27 of them reported exposure to
Cargill’s burgers (Filing No. 278, at 4).

Cargill recalled

approximately 845,000 pounds of product and has settled numerous
claims against it with those injured by the contaminated meat.
With 27 of the 54 patients attributed to Cargill’s
meat, Cargill undertook an epidemiological traceback

1

Frigorifico is a Uruguayan company (Filing No. 278, at 3).
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investigation of the remaining 27 patients who did not come into
contact with Cargill’s meat so that Cargill might isolate which
of the four producers may have provided contaminated meat.
According to the parties, there are two aspects of an
epidemiological investigation involving the traceback to the
source of a food borne illness outbreak: (1) the “genetics of the
organisms that are causing the disease” and (2) applied
epidemiology, which focuses on determining the potential source
of the pathogen (Filing No. 328, at 4).

Once a genetic link is

observed, the investigators determine whether there is a common
source and then determine the common source.

This is done by

reviewing whether the persons expressing the same pathogen and
sickness share a common source.

The object of an epidemiological

investigation is to determine exposure to a common source.
There are two molecular tests often used in foodborne
illness molecular epidemiology:

Pulsed Field Gel Electrophoresis

(“PFGE”) and Multiple Loci VNTR Analysis (“MLVA”).

PFGE

determines the genetic relatedness of isolated bacteria (Id.).
MLVA determines whether “bugs” are related by looking for short
sequences of nucleotide chains (Id.).
Drs. Randall Singer, Lee Harrison, Alan Melnick, James
Marsden, and Angela Siemens (collectively, the “Expert

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Witnesses”) released the following paraphrased opinions in their
expert disclosures:
1. GOPAC’s raw beef trim caused the
alleged E. coli and that
individuals appearing on the CDC
Line List were exposed to E. coli
from GOPAC products;
2. GOPAC’s raw beef trim sold to
Cargill was contaminated with E.
coli;
3. The beef products supplied to
Cargill by other suppliers (BPI,
Lone Star, and Frigorifico) to make
the American Chef Burgers were not
adulterated with E. coli;
4. The patient in Hawaii fell ill
due to E. coli as a result of
consuming product manufactured and
sold by GOPAC;
5. The patient in Missouri fell ill
due to E. coli as a result of
consuming product manufactured and
sold by GOPAC;
6. The patient in Essex County, New
York, fell ill due to E. coli as a
result of consuming product
manufactured and sold by GOPAC; and
7. USDA Non-compliance Reports
support a conclusion that GOPAC
supplied raw beef trim to Cargill
that was contaminated with E. coli.
(Filing No. 277, at 1-3).

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II.

STANDARD OF REVIEW
This Court must determine whether the Expert Witnesses’

specialized knowledge will assist the trier of fact to understand
evidence or to determine a fact in issue.

Fed. R. Evid. 702.

Under Rule 702, the Court must consider whether (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness
has applied the principles and methods reliably to the facts of
the case.
In determining the reliability of a scientist's
methodology, the Court should consider whether a theory or
technique can be and has been tested, whether it has been subject
to peer review or publication, whether it has known or potential
error rates or standards and controls, and whether it has gained
general acceptance in the scientific community.

Marmo v. IBP,

Inc., 360 F. Supp. 2d 1019, 1021 (D. Neb. 2005) (citing Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94
(1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141
(1999).

The Advisory Committee Notes to the 2000 Amendments to

Rule 702, made in response to the Daubert decision, list other
factors courts often consider when determining whether expert
testimony is sufficiently reliable to be considered by the trier
of fact.

Among these are (1) whether the research was conducted
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independent of the litigation or the opinions were developed
expressly for purposes of the litigation, (2) whether the expert
has extrapolated from an accepted practice to an unfounded
conclusion, leaving an analytical gap, (3) whether the expert has
adequately accounted for alternative explanations, at a minimum
ruling out the most obvious alternative causes, (4) whether the
expert has employed the same level of care and intellectual rigor
in reaching the opinion as the expert would employ when working
outside the courtroom in the expert's field of expertise, and (5)
whether the field of expertise claimed by the expert is known to
reach reliable results for the type of opinion the expert is
offering.

Id.
The proponent of the expert testimony must prove its

admissibility by a preponderance of the evidence.
U.S. at 592-93, n.10.

Daubert, 509

“[T]estimony is inadmissible if it is

speculative, unsupported by sufficient facts, or contrary to the
facts of the case.”

Marmo v. Tyson Fresh Meats, Inc., 457 F.3d

748, 757 (8th Cir. 2006).

“When the analytical gap between the

data and proffered opinion is too great, the opinion must be
excluded.”

General Elec. Co. v. Joiner, 522 U.S. 136, 146

(1997).

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III. DISCUSSION
GOPAC offers four broad reasons why the Expert
Witnesses should be excluded.

First, Cargill ignored Lone Star,

BPI, and Frigorifico as potential sources of contamination.
Filing No. 278, at 13.
CDC Line List patients.

Second, Cargill ignored 24 out of the 27
Id. at 14.

Third, the Expert Witnesses

have no knowledge of how patients in Hawaii, Missouri, and New
York became ill.

Id.

Fourth, Cargill cannot connect the three

patients in question to GOPAC.

Id.

First, GOPAC makes strong assertions regarding
Cargill’s investigation of other suppliers.

In its brief, GOPAC

makes bare assertions that the Expert Witnesses skipped essential
steps and leapt to the immediate conclusion that GOPAC was the
culprit without exhaustively considering the other three sources
of Cargill’s burgers.

Id. at 15.

GOPAC supports its position by

quoting Dr. Singer’s deposition in which he stated he “did not
believe” he had any records from the other three sources of meat.
Also, GOPAC focused on Dr. Harrison’s inability to articulate the
kind of beef which the other sources delivered to Cargill.
However, Dr. Singer claims his epidemiological
traceback isolated GOPAC as the source of the bacteria.

Cargill

asserts that its experts only reviewed GOPAC’s records after they
had narrowed the supply chains to GOPAC.
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Filing No. 328, at 9.

Also, Cargill asserts that the kind of analysis the Expert
Witnesses undertook does not require any knowledge of the kind of
product that was in question, but rather, whether that product
was implicated in the outbreak.

Cargill asserts that its

investigation was thorough and led to only a single possible
source of the bacteria:

GOPAC.

Second and similarly, GOPAC makes strong assertions
regarding the Expert Witnesses evaluation of 24 patients.

As

stated above, 54 people became ill from the same strain of e
coli.

Half of those people, 27, were linked to the Cargill

burgers, which left 27 patients with unaccounted illnesses.

Of

those 27 people, Cargill asserts that the traceback connected
GOPAC with three of them.

Because Cargill produced no connection

between GOPAC and the other 24 patients, GOPAC claims Cargill
must have ignored them and GOPAC wishes to exclude the Expert
Witnesses.
Cargill asserts its experts did not speculate as to
cause of any patient’s illness and that its experts considered
every patient.

Filing No. 328, at 11.

Cargill could not account

for every patient’s source of illness.

However, Cargill accounts

for three of those patients.

It does not follow that the Expert

Witnesses ignored facts because they failed to account for each
patient’s illness through analysis.
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GOPAC’s additional arguments

at best focus on the weight the jury should afford an expert
witness and the Court will allow Cargill’s Expert Witnesses to
testify.
Third, GOPAC claims that the Expert Witnesses have no
evidence to support their assumptions how the Hawaii, Missouri,
and New York patient became ill.

GOPAC argues that holes exist

that cast doubt on the Expert Witnesses’ conclusions, such as the
lack of complete food histories for the patients.
Cargill points to various facts which the Expert
Witnesses reviewed, including the illnesses of the Line List
patients, the patients’ food histories, and the existence of
products from one of Cargill’s suppliers in relation to each
patient’s food history.

Filing No. 328, at 15-16.

Evidence

exists which supports an epidemiologist’s conclusion that GOPAC’s
products correlated with the three patients’ illness.
Finally, GOPAC claims that Cargill cannot prove the
three patients were “actually exposed” to GOPAC products.
However, the Expert Witnesses utilized epidemiological studies to
determine the source of their illness.

GOPAC offers several

arguments to challenge the Expert Witnesses’ conclusions based on
the facts, but these arguments will best be used at trial.

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The Court finds that the Expert Witnesses’ specialized
knowledge will assist the trier of fact to understand evidence
and to determine facts in issue.
IT IS ORDERED that the defendant’s motion (Filing No.
277) is denied.
DATED this 16th day of April, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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