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

Filing 487

MEMORANDUM AND ORDER - The plaintiff Cargill's motion (Filing No. 238 ) is denied without prejudice regarding all testimony except for the Frigorifico testimony. The Court defers consideration of the Frigorifico opinion until trial. Plaintiff Cargill's motion (Filing No. 244 ) in denied without prejudice. The Court defers consideration of the relevance and prejudice of the irradiation opinions for trial. Plaintiff Cargills motion (Filing No. 256 ) is denied. Dr. Benson's expert opinion regarding GOPAC's counterclaim is moot. Plaintiff Cargill's motion (Filing No. 268 ) isdenied. Ordered by Senior Judge Lyle E. Strom. (AOA)

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 four of plaintiff
Cargill’s motions in limine.

Cargill has filed motions, briefs,

and indices of evidence to exclude the expert testimony of Dr.
Allen (Filing Nos. 238, 239, 240), Dr. Olson (Filing Nos. 244,
245, 246), Dr. Benson (Filing Nos. 256, 257, 258), and Dr.
Schaffner (Filing Nos. 268, 269, 270).

The defendant has filed

briefs and indices of evidence in opposition to the motions.

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 motions in part,
grant the motions in part, and defer judgement until trial in
part.

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
Corporation (“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 Company (“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 people affected by the E. coli
outbreak.

1

After identifying the 54 people affected by the E.

Frigorifico is a Uruguayan company (Filing No. 278, at 3).
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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.
As a result, Cargill undertook an epidemiological
traceback investigation of the remaining 27 persons 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 to 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.
GOPAC has retained the experts to testify and offer
opinions at trial regarding Cargill’s study and conclusions.

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II.

STANDARD OF REVIEW
The Court must determine whether the experts’

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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independently 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
A.

Dr. Allen
The first expert witness is Dr. Dell Allen, a purported

expert in the meat industry.

According to the expert

disclosures, Dr. Allen will deliver the following, paraphrased,
expert opinions:
1. In 2007, GOPAC’s E. coli O157:H7
sampling protocols complied with
the N=60 methodology which was the
standard in the meat industry.
2. Notices of Intended Enforcement
and Non-compliance Records that
GOPAC received in 2007 do not
establish that GOPAC boxed
contaminated meat, shipped
contaminated meat, or improperly
sampled product for E. coli O157:H7
in July or August 2007
3. Due to the number of E. coli
O157:H7 tests that GOPAC’s
microbiology testing contractor
conducted on GOPAC’s product and
its facilities on August 9, 2007,
it is unlikely that GOPAC
fabricated any product that day
with high levels of contamination.
4. There is no evidence that the
beef trim fabricated by GOPAC on
August 9, 2007, and shipped to
Cargill was contaminated with E.
coli O157:H7.
5. GOPAC’s E. coli O157:H7
certificate of analysis for the
beef trim product that it shipped

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to Cargill Butler under PO #26186
was valid.
6. It is unlikely that the E. coli
O157:H7 bacteria that apparently
contaminated Cargill’s grinding
process on August 16, 2007, was
spread by cross-contamination.
7. Cargill failed to perform daily
finished product testing on its
grinding lines, including on the
lines on which the ground beef
products manufactured on August 16,
2007, which contributed to
Cargill’s alleged losses and
damages.
8. Frigorifico’s sampling for E.
coli O157:H7, like most exporters,
did not meet the N=60 standard and
violated Cargill’s E. coli O157:H7
sampling requirements for raw
material suppliers. Cargill’s use
of Frigorifico product without
having a valid E. coli O157:H7
certificate when it ground the
American Chef’s Selection burgers
on August 16, 2007, did not meet
the standard of care, violated
Cargill Butler’s Hazard Analysis
and Critical Control Points
(“HACCP”) Plan, and the fact that
Frigorifico was not using a robust
sampling program does not exclude
it as a potential source of the E.
coli O157:H7 contamination that
prompted Cargill’s ground beef
recall.
Filing No. 335, at 1-2.
Cargill moves to exclude Dr. Allen’s testimony on
numerous grounds.

First, Cargill wishes to exclude Dr. Allen’s
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opinions regarding the sufficiency of E. coli sampling at GOPAC
and Cargill.

Cargill incorrectly moves to exclude Dr. Allen

because his opinion is based upon purported hearsay evidence.
Experts may rely upon inadmissable hearsay evidence if that sort
of evidence is the kind of fact or data an expert in their field
would rely upon in forming an opinion.

See Fed. R. Evid. 703;

Sosna v. Binnington, 321 F.3d 742, 746 (8th Cir. 2003) (citing
Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1182
(8th Cir. 1997)).

Dr. Allen visited its facility in order to

evaluate GOPAC’s procedures and Dr. Allen worked at Cargill for a
number of years and is familiar with the meat industry’s process.
Therefore, Dr. Allen’s opinion is not speculative regarding
GOPAC’s and Cargill’s sampling procedures.
Second, Cargill moves to exclude Dr. Allen’s testimony
against Frigorifico’s sampling for E. coli O157:H7.

Cargill

claims Dr. Allen is not an expert on Uruguayan production and
therefore his testimony is dubious.

Dr. Allen once did a

“project on beef carcass grading” in Brazil.
at 3.

Filing No. 251-1,

Dr. Allen has not performed any research into the

prevalence of E. coli O157:H7 in Uruguay.

Indeed, Dr. Allen’s

testimony, as it is disclosed in his report, appears to be
derived from a broad assertion that, because Frigorifico is a
foreign company, its sampling measures could not be used to rule
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it out as the source of the E. coli.

If E. coli sampling is

relevant as a means to determine where bacteria originated, it
does not necessarily follow that a foreign sampling method is
irrelevant to that discussion.

However, GOPAC claims Dr. Allen

relied upon documents supplied to him by GOPAC and Cargill which
detail Frigorifico’s practices.2

The Court, at this time, will

defer judgment of admissibility of Dr. Allen’s assertions
regarding Frigorifico until trial.
Third, Cargill objects to Dr. Allen’s testimony
regarding “finished-product testing,” meaning the examination of
the beef patties after manufacture.

Cargill complains that Dr.

Allen ceased working for Cargill in 2004, and is therefore unable
to speculate as to the testing practices of the industry in 2007.
Again, the nature of Dr. Allen’s testimony need not be limited to
his personal experiences.

Because Dr. Allen relies upon

testimony of the senior leadership of Cargill in addition to his
personal knowledge, education, and skill, he may offer his
testimony at trial.

2

The Court notes that GOPAC’s index of evidence, Filing
No. 336, does not contain the materials which GOPAC claims it
contains. E.g., Filing No. 335 at page 10 cites to “Allen
Deposition at 326:20-327:23;” however, no such corresponding
material exists in the index. See Filing No. 336-1, at 21-23.
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B.

Dr. Olson
The second expert witness in these motions is Dr.

Dennis Olson, a purported expert in irradiated meat.

According

to the expert disclosures, Dr. Olson will deliver the following,
paraphrased, expert opinions:
1. Irradiation effectively
eliminates E. coli O157:H7 from
ground beef products, and Cargill’s
failure to irradiate its ground
beef patties was a contributing
cause to the losses claimed by
Cargill. Had Cargill irradiated
those ground beef patties, E. coli
O157:H7 existing within those
ground beef patties would have been
destroyed, and the losses would not
have resulted.
2. Irradiation could have been
performed inexpensively and would
not affect the quality of the
product.
3. Cargill’s failure to perform
finished product testing for E.
coli O157:H7 on the ground beef
patties violated the standard of
care, and was also a contributing
cause to the losses claimed by
Cargill in this action.
4. There are limitations on the
effectiveness of the lethality
treatment used by BPI with respect
to its finely textured beef.
Irradiation is a more effective
means of ensuring the elimination
of E. coli O157:H7 from ground beef
products.
Filing No. 337, at 1.

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First, Cargill claims Dr. Olson is not qualified to
opine on “finished-product testing,” the process of examining the
beef patties after manufacture.

Cargill states Dr. Olson lacks

experience in microbiological testing, failed to research
microbiological testing, lacks expertise in microbiological
testing, does not discern the value of one microbiological test
over any other test, and lacks sufficient knowledge to construct
a standard of care in 2007.
GOPAC lists Dr. Olson’s numerous experiences in the
beef-irradiating field.

It is clear that, to the extent beef-

irradiating practices enter into this case, Dr. Olson is wellsuited to offer his testimony.

In addition, GOPAC states Dr.

Olson is knowledgeable regarding industry standards and the
standard of care for post-product testing.

In forming his

opinion, Dr. Olson relies upon twelve years of experience, the
testimony of Cargill’s most senior leadership, and the practices
of beef producers in 2007, including Cargill.
Second, Cargill claims Dr. Olson’s opinions regarding
irradiation are irrelevant and unduly prejudicial.

Specifically,

Cargill states that irradiated beef products are distinct from
other beef products, like the ground beef patties in this case;
therefore, Dr. Olson’s opinions should be excluded.

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The Court

will not rule on the exclusion of Dr. Olson’s testimony on this
basis at this time.
C.

Dr. Benson
GOPAC hired Dr. Andrew Benson to rebut Cargill’s

findings from its investigation.

Dr. Benson will offer the

following, paraphrased, expert opinions at trial:
1. The Hawaii case does not
establish to a reasonable degree of
scientific certainty that GOPAC’s
product caused Cargill’s recall or
that the patient contracted E. coli
O157:H7 from consuming or being
exposed to any GOPAC product.
2. The Missouri case does not
establish to a reasonable degree of
scientific certainty that GOPAC’s
product caused Cargill’s recall or
that the patient contracted E. coli
O157:H7 from consuming or being
exposed to any GOPAC product.
3. The New York case does not
establish to a reasonable degree of
scientific certainty that GOPAC’s
product caused Cargill’s recall or
that the patient contracted E. coli
O157:H7 from consuming or being
exposed to any GOPAC product.
4. Collectively, the cases from
Hawaii, New York, and Missouri fail
to establish to a reasonable degree
of scientific certainty that
GOPAC’s product caused the recall.
5. There is no evidence that
GOPAC’s raw beef trim was the cause

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of the adulterated meat patties
that Cargill recalled.
6. Cargill’s statements to the New
York Times implicating Greater
Omaha as the alleged cause of the
October 2007 recall are highly
biased, scientifically unsupported,
false, misleading, and unjustified.
Filing No. 342, at 1-2.
The parties agree that “traceback studies,” or
epidemiological investigations, have two parts:

(1) the genetic

or microbiological aspect of an outbreak and (2) investigative
epidemiology, which focuses on the potential source of the
pathogens.

Filing No. 257, at 3.

Cargill does not dispute that

Dr. Benson qualifies under the first aspect of this field.
Cargill instead states that, because Dr. Benson did not work with
a field or investigative epidemiologist, then he cannot qualify
under the second aspect of epidemiology because he did not
personally investigate the outbreak.

Id. at 5.

Dr. Benson works and teaches in the epidemiological
field.

He reviewed numerous pages of epidemiological information

compiled from several state field investigations and the CDC.
The Court finds that Dr. Benson’s specialized knowledge will
assist the jury at trial regarding the epidemiological study.

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However, Dr. Benson’s opinion regarding GOPAC’s
counterclaim is moot in light of the dismissal of that claim, so
the Court will exclude Dr. Benson’s sixth topic of testimony.
D.

Dr. Schaffner
Dr. Donald Schaffner is the final expert in this series

of motions.

GOPAC retained Dr. Schaffner to rebut Cargill’s

findings in its investigation.

Dr. Schaffner will offer the

following, paraphrased, expert opinions at trial:
1. Cargill’s Hazard Analysis and
Critical Control Points Plan in
August 2007 lacked the ability to
prevent the entrance of E. coli
into Cargill’s grinding operations.
2. Cargill had significant preoperational sanitation deficiencies
during the period of August 1,
2007, through August 16, 2007. The
daily deficiencies show that
Cargill did not have control over
its sanitation process and
procedure.
3. Cargill’s failure to perform
finished product testing for E.
coli was an act and/or an omission
that was a contributing cause of
Cargill’s alleged losses and
damages.
4. Frigorifico’s E. coli sampling
methodology was not robust, failed
to comply with the N=60 standard,
and does not provide a reasonable
confidence level that its product
was negative for E. coli.

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5. Cargill’s failure to audit and
perform verification testing on the
deficient E. coli sampling
methodology that Frigorifico used
was unreasonable and violated the
standard of care.
6. The Non-compliance Records and
Notices of Intended Enforcement
that GOPAC received in 2007 do not
establish that GOPAC delivered beef
product to Cargill that was
adulterated or contaminated with E.
coli O157:H7.
7. In 2007, GOPAC was using the
N=60 sampling methodology, which
was, and continues to be, the
standard of care in the meat
industry for E. coli O157:H7
sampling.
8. There is no evidence that GOPAC
intentionally altered, avoided, or
subverted its sampling practices to
reduce the chance of detecting E.
coli in its beef products.
9. GOPAC’s E. coli certificate of
analysis for the beef trim product
that it shipped to Cargill is
valid.
10. GOPAC’s sanitation was not out
of control.
Filing No. 350, at 1-2.
First, Cargill argues that Dr. Schaffner is not
qualified to offer opinions regarding beef testing.

According to

Cargill, Dr. Schaffner lacks experience in the beef industry or
in beef microbiological sampling procedures.
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In other words, Dr.

Schaffner is an expert in sampling procedures but not in sampling
procedures specifically for beef.

Cargill cites federal case law

which states “[e]xpertise in the technology of fruit is not
sufficient when analyzing the science of apples.”

Filing No.

269, at 7-8 (citing Diviero v. Uniroyal Goodrich Tire Co., 919 F.
Supp. 1353, 1357-58 (D. Ariz. 1996).

However, Dr. Schaffner’s

expertise and testimony is not a comparison of apples and
oranges.

Dr. Schaffner teaches statistical sampling, N=60, and

HACCP protocols.

He has also authored materials relating to

sampling beef products.

Dr. Schaffner reviewed documents and

testimony to formulate his opinions in this case.

The Court

finds that Dr. Schaffner is qualified to offer his anticipated
testimony.
Second, Cargill argues that Dr. Schaffner’s standardof-care testimony is speculative.

Filing No. 350, at 9.

GOPAC

lists Dr. Schaffner’s numerous experiences in the sampling
community.

His opinions are based upon those experiences and on

the documents and statements of the parties in this case.

The

Court finds that Dr. Schaffner’s standard-of-care testimony is
not speculative.

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E.

Other Objections
Finally, the Court agrees with GOPAC regarding all

remaining 402, 403, and 407 objections.

The Court will defer

analysis of these topics to another time.
IV.

CONCLUSION
The Court finds that the experts in these motions base

their testimony on sufficient facts or data, the testimony is the
product of reliable principles and methods, and the witnesses
have applied the principles and methods reliably to the facts of
the case.

Furthermore, although this testimony was developed in

anticipation of trial, the experts have reached reasonable
conclusions which will aid the trier in fact in understanding
this case.
IT IS ORDERED:
1) The plaintiff Cargill’s motion (Filing No. 238) is
denied without prejudice regarding all testimony except for the
Frigorifico testimony.
2) The Court defers consideration of the Frigorifico
opinion until trial.
3) Plaintiff Cargill’s motion (Filing No. 244) in
denied without prejudice.
4) The Court defers consideration of the relevance and
prejudice of the irradiation opinions for trial.
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5) Plaintiff Cargill’s motion (Filing No. 256) is
denied.
6) Dr. Benson’s expert opinion regarding GOPAC’s
counterclaim is moot.
7) Plaintiff Cargill’s motion (Filing No. 268) 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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