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

Filing 485

ORDER denying 252 motion in limine to exclude proposed expert testimony and report of Vincent Powers. 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 the plaintiff
Cargill’s motion in limine to exclude proposed expert testimony
and report of Vincent Powers (Filing No. 252).

The plaintiff has

filed an accompanying brief (Filing No. 253) and index of
evidence (Filing No. 254).

The defendant has filed a brief

(Filing No. 340) and index of evidence (Filing No. 341) in
opposition of the motion.

The plaintiff has filed a reply brief

(Filing No. 359) and index of evidence (Filing No. 360).

After

review of the motion, briefs, and indices of evidence, the Court
will deny the motion.
I.

BACKGROUND
The plaintiffs, American Home Assurance Company

(“Assurance”) and Cargill Meat Solutions, Corp. (“Cargill”), were
affected by a major beef recall in 2007.

The plaintiffs claim

that the defendant, Greater Omaha Packing Company, Inc.
(“GOPAC”), adulterated meat, sold that meat to Cargill, and
caused an outbreak of E. coli.

Filing No. 1, at 3.

Cargill produced the ground beef hamburger patties in
question from four sources.

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 burgers 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 those 54 affected by the E. coli
outbreak.

After identifying 54 people affected by the E. coli

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

Cargill undertook a similar

process to identify whether one of its four suppliers provided
Cargill with contaminated meat and the result prompted the
current litigation.

In the interim, Cargill settled a number of

personal injury claims (the “Settlements”) in amounts totaling
approximately $25 million.

The expert witness in this motion is

Lincoln, Nebraska, attorney Vincent Powers.

1

Mr. Powers, Esq.,

Frigorifico is a Uruguayan company (Filing No. 278, at 3).
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plans to testify that those settlements were not fair and
reasonable as to GOPAC.

Filing No. 253, at 4.

This testimony is

in direct rebuttal of Cargill’s own retained legal experts, who
plan to testify that the Settlements were reasonable.

Filing No.

341, at 5-6.
II.

STANDARD OF REVIEW
The Court must determine whether Mr. Powers’

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.
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.”

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

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III. DISCUSSION
Cargill claims that Mr. Powers will deliver an opinion
as to how reasonable the Settlements are to GOPAC, and not
whether the Settlements were reasonable per se.

Mr. Powers

believes that Cargill settled its claims against those affected
by E. coli too eagerly and that, if GOPAC had been considered in
these negotiations, it would not have been so eager to settle the
claims.

Filing No. 253, at 4-5.

Mr. Powers uses in his

calculation the possibility that GOPAC is potentially not liable
for the claims alleged in the current action.

Id. at 5-6.

The Court finds that Mr. Powers’s specialized knowledge
will assist the jury at trial regarding these specific damages.
The argument which Cargill posits will be more appropriately
evaluated by the jury.
IT IS ORDERED that the plaintiff Cargill’s motion is
denied.
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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