American Home Assurance Company et al v. Greater Omaha Packing Company Inc.
ORDER denying 311 motion in limine to exclude evidence that Cargill was a "contributing cause" for the purpose of disclaiming GOPAC's warranties. 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
GREATER OMAHA PACKING COMPANY,)
MEMORANDUM AND ORDER
This matter is before the Court on the motion (Filing
No. 311) of the plaintiff Cargill to exclude evidence that
Cargill was a “contributing cause” for the purpose of disclaiming
Plaintiff Cargill has filed an accompanying
brief (Filing No. 312) and index of evidence (Filing No. 313).
The defendant filed a brief (Filing No. 399) in opposition to the
Cargill then replied with a brief (Filing No. 409) and
index of evidence (Filing No. 410) in support of its motion.
Court will deny the motion.
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”).
have brought various contract claims against the defendant,
Greater Omaha Packing, Corp. (“GOPAC”).
plaintiffs claim that GOPAC sold Cargill meat contaminated with
the E. coli strain in violation of a contract between GOPAC and
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”), and GOPAC.
Cargill distributed the patties across the United States.
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 people affected by the E. coli
After identifying 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).
approximately 845,000 pounds of product and has settled numerous
claims against it with those injured by the contaminated meat.
At the center of the current motion is a one-page
Guarantee between Cargill and GOPAC.
Filing No. 313-1, at 2.
is titled “General and Continuing Pure Food/Hold Harmless
GOPAC guaranteed to Cargill that all articles,
comprising each shipment or other delivery would not be
adulterated, which included being free of E. coli.
guaranteed that its articles would be legally transportable or
The Guarantee also stated it would be “void in the event
any act or omission by [Cargill] shall be a contributing cause to
any loss otherwise covered by the terms of this Guarantee.”
In preparation for trial, GOPAC has retained several
expert witnesses to testify that Cargill was a contributing cause
to the E. coli outbreak.
Cargill moves under Federal Rules of
Evidence Rules 402 and 403 to exclude all evidence of Cargill’s
acts or omissions after GOPAC delivered its product to Cargill
(Filing No. 311, at ¶ 1, ¶ 3).
First, the Court addresses the
scope of its analysis.
The Court must evaluate whether Cargill’s pending
motion is merely a motion in limine or a motion for summary
Though Cargill labeled the motion as one “in limine,”
the substance of the motion will determine whether the Court will
construe it as such.
See Bliss v. BNSF Rwy. Co., No. 4:12cv3019,
2013 WL 5570231, at *2 (D. Neb. Oct. 9, 2013).
“A motion in
limine is ‘any motion, whether made before or during trial, to
exclude anticipated prejudicial evidence before the evidence is
Id. (citing Louzon v. Ford Motor Co., 718
F.3d 556, 561 (6th Cir. 2013).
“A motion in limine is used ‘to
narrow the evidentiary issues for trial and to eliminate
unnecessary trial interruptions;’ in contrast, a motion for
summary judgment is a mechanism for resolving non-evidentiary
matters prior to trial.”
Circuit courts have reversed
district courts for granting in limine motions to bar the
presentation of all evidence in support of the non-moving party’s
affirmative defenses in contravention of the procedural
protections of the federal rules of civil procedure regarding
Id.; Louzon, 718 F.3d at 562 (citing Meyer
Intellectual Props. Ltd. v. Bodum, Inc., 690 F.3d 1354, 1378
(Fed. Cir. 2012); Bradley v. Pittsburgh Bd. of Educ., 913 F.2d
1064, 1069-70 (3d Cir. 1990); Mid–Am. Tablewares, Inc. v. Mogi
Trading Co., 100 F.3d 1353, 1363 (7th Cir. 1996)).
the denial of this motion turns on whether Cargill’s motion seeks
to exclude all evidence of one of GOPAC’s affirmative defenses.
GOPAC has asserted the affirmative defense that “[t]o
the extent that the Guarantee alleged in Plaintiffs' Complaint
existed, such Guarantee is void for reasons including, but not
limited to, the acts or omissions of Plaintiffs and/or their
Affiliates as set forth therein.”
Filing No. 40, ¶ 14.
affirmative defense references the Guarantee and includes
evidence of Cargill’s failure to use finished-product testing,1
Cargill’s production and shipment of the burgers, Cargill’s use
of dated GOPAC product, and Cargill’s failure to irradiate its
Filing No. 399, at 9-10.
Cargill has moved to exclude
“any evidence of Carill’s ‘acts or omissions’” and is therefore a
motion for summary judgment.
The close for motions for summary judgment in this case
was March 3, 2014.
Filing No. 18, at 2.
Cargill filed the
instant motion on March 10, 2014 –- seven days after the deadline
for summary judgment.
improper and untimely.
Filing No. 311.
Therefore, the motion was
Because the Court cannot exclude all
evidence of GOPAC affirmative defense in a motion in limine, the
Court will deny the motion.
See Bliss v. BNSF Rwy. Co., No.
4:12cv3019, 2013 WL 5570231, at *2.
Cargill has filed a separate motion in limine to exclude
specific evidence regarding finished-product testing. Filing No.
IT IS ORDERED that plaintiff Cargill’s motion is
DATED this 20th day of May, 2014.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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