IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION

Filing 287

Letter from Donald R. Earl, Re: Motion to Vacate and Motion to Intervene (Attachments: #1 Motion, #2 Certificate of Service)(nf, )

IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION

Doc. 287

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THE UNITED STATDS DISTRICT COURT DISTRICT OF NEW JERSEY
IN RE: Pet Food Products
Liability Litigations

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Civil Action No. 07-2867 (NLH) MDL DOCKET NO. 1850
The Honorable Noel L. Hillman

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RULE 60 \4OTION TO VACATE PRODUCT RETENTION ORDERS # 106 AND # 140 BY DONALD R. EARL NOTE O\ MOTION CAI-ENDAR February 2, 2009

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1. INTRODUCTION

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COMES NOW Donald R. Earl, a party in interest in evidence described as "unorganized inventory" subject to this Court's order ofDecember number 106, and subsequent related order

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l8' 2007, docket

ofApril

14, 2008, docket number 140

The Movant is a non party, substantially prejudiced by this permitting destruction z4 ?5 z6

ofevidence material to his lawsuit filed in Jefferson County, in th state ofwashington,
Superior Court number
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-2-00250-1.

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The subject matter ofEarl's action is unrecalled pet food, which forensic
RIJLE 60 MOTION PAGE I OF IO

Dockets.Justia.com

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laboratory tests found to be contaminated with the toxins cyanuric acid and
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acetaminophen. This unrecalled pet food was contained in the body ofevidence known to this Coun as -unorganized inventory'

The Defendants in the above named Washington State case are The Kroger
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Company and Menu Foods Income Fund, Inc. Both ofthese parties are also named
defendants in the action before this Court.

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As a result ofthis Coun's orders. Earl was denied discovery critical to his lawsuit,
evidence material to his action was destroyed in its ertirety, and Earl was ordered to pay

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sanctions in the amount of $4,491 .09 for opposing the evidence destruction o.der. The
basis ofthese rulings in the Washington State Superior Coun is that this Court's orders

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we.e subject to the principal ofcomity. Litigation on these matters is cunently pending in
the Washington State Supreme Coun. As the issue originated in rhis Coun, it is

appropriate to seek redress directly and ask this Court to vacate the orders allowing
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evidence to be destroyed.
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2. FACTUAI, BACKGROUND
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Earl's previously healthy, 6 year old cat died fiom a sudden onset ofacute kidney
failure on January 6, 2007, after consuming pet food manufactured by Menu Foods. Menu Foods announced a recall of its "cuts and grav,v" style pet food in March

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2007. Earl, for the 6 years prior to his cat's death, fed his cat "cake style" pet food, which
does not contain gluten as an ingredient, and which was not subject to the Menu Foods recall. Laboratory tests on the only two lots ofthis food Ea.l had in his possession, which were manufactured in September and April of2006, showed the pet food was

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contaminated with cyanuric acid and acetaminophen. Both ofthese substances are known
RULE 60 MOTION PAGE 2 OF IO

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to be potent kidney toxins. In shon, the subject matter ofEarl's action in Washington
State involves the uffecalled pet food contained in the body ofevidence known to this

Coun as "unorganized inventory"
One week aiier the Menu Foods recall was announced, The Kroger Compan],
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initiated its own recall, which included all its private labeled Menu Foods wet pet food. According to Menu Foods' fourth quarter 2007 financial filings:
"Sales ofthe "cuts and graw" style ofpet food in cans and pouches (the style primarily impacted by the recalls) accounted for approximately 480lo ofMnu's volume in 2006" Based on th above financial disclosure, the body ofevidence knowr as

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"unorganized inventory", is presumed to have consisted ofat least 52oZ unrecalled pet

food relevant to Earl's lawsuit.
The summons and complaint in Earl's action was served on Menu Foods on July
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31, 2007 as shown in Exhibit A. At the time Menu Foods and other manufacturing
defendants presented lhe unopposed motion to this Coun. asking tbr permission to

destroy evidence material to Earl's action, Menu Foods was well aware this litigation was
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pending and that the subject matter ofthe action was unrecalled pet food contained in the
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body ofevidence known as "unorganized inventory". Menu Foods knowingly misled this

Court in statements it made in the motion (#103) that there was no party interested in
conducting discovery on this "unorganized inventory". That Menu Foods was fully aware ofpending or potential litigation, both civil and criminal, is funher documented in its first quarter 2007 financial filing, which was released
on May 30, 2007. The document is available for download from the official Menu Foods

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Income Fund's official website and reads in peninent part as follows:
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"Lawsuits have been initiated against the Fund and certain ofits subsidiaries in the United Stats and in Canada. which seek to recover damages ofl behalfofthe named plaintiffs and a purported class ofpet owners. Furthermore. the Fund is the target ofa misdemeanor investigation by the U S. Food and Drug Administration into whether the Food, Drug & Cosmetic Act has been violated. lt is possible that additional actions or investigations may arise in the future."
Amy W. Schulman, counsel for Menu Foods in this Court. whom this Court has

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previously cautioned against professional misconduct, appeared pro hac vice on the motion to destroy evidence in Earl's case. The law firm DLA Piper represents Menu
Foods in both cases.

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Earl previously filed an objection in this Court related to destruction ofthe "unorganized inventory" (#l l5), which this Coun denied without comment in document

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#121. In an affidavit filed by Menu Foods in the state case, Menu Foods describes how it
leveraged the evidence destruction order obtained in this Court as a basis for destroying

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evidence in a multitude ofcases all across the U.S. and Canada, and subsequently did in

fact destroy all unrecalled pet food evidence material to cases such as Earl's (Exhibit B)
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Earl has suffered extreme prejudice as a result ofthis Court's order prmitting
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evidence critical to his case to be destroyed.

3. SUMMARY OF ARGUMENT

No court has subject matterjurisdiction to consider a motion to destroy evidence
or the authority to enter an order permitting the destruction ofevidence. An order

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permitting destruction ofevidence is contrary to rule and law, is void, and must be
vacated.

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LEGAL AUTHORITY AND ARGUMENT

a) Subject matter j urisdictio over a motion to destroy evidence is barred by the provisions of R-PC 3,4(a).
Washington law and civil rules are largely based on the Fedetal model The

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following three washington state cases well illustrate published opilion as it pertains to
subject matter j urisdiction.

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In Dike v. Dike,75 Wn.2d1,7,448P.2d490 (Wash. 1968), the court ruled:

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"Ajudgment isvoid ifentered without persoral iutlsdiction, subiect maner jutis.lictian, ol if entercd by a co rt rrhich lacks ,he inherent power to enter lhe partieulor order im,olred." (emphasis added)
In Bourv. Johnson,647 80 Wn. App.643,910 P 2d 548 (Wash 1996), thecoun ruled on CR 60 motions as follows:

"ajudgment may be vacated ifthere was no subject matter ju.isdiction, even though a mandate has been issued" In J.A. v. State, 657 120 Wn. App. 654 (Wash. 2004), citing various cases, the
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court ruled: "the pivotal aoncept in subject matter jurisdiction is whether a coun has the power to hear that type ofcontroversy." (intemal quotations omitted)
RPC 3.4(a) eliminates the possibility subject matterjurisdiction exists over a motion to destroy evidence. The rule reads as follows:

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"A lawyer shall not: urdawfully obstruct another party's access to evidence o.
unlaiafully alter, destroy or conceai a document or other material having potential evidentiary value. ,4 lary er Mb4.99!!!t9L9lgfijj! .tnother percon to do any src} acl" (emphasis added) The Rules ofProfessional Conduct are identical under both Washington State and

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Federal court rules. RPC 3.4(a) shows a court lacks subject matter jurisdiction to consider

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RIJLE 60 MOTION PAGE 5 OF 10

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a motion
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filed in violation ofthe rule.

The motion to dest.oy evidence, filed by counsel for Menu Foods and other manufacturing defendants, and which is characterized as a "product retention" motion, is theoretically impossible except in violation ofRPC 3.4(a). On its face, the motion shows

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attomeys for the manufacturing defendants counseled and assisted in the destruction

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evidence. A court does not have authority to consider the medts ofa motion which is filed

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in violation ofthe rule. The granting ofsuch a motion amounts to a reward for
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professionai misconduct. There is a dearth ofpublished opinion related to motions to destroy evidence,

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presumably because the overwhelming majority ofpracticing attomeys would prefer not to

put their licenses at risk by filing such a motion in violation ofthe rule. The following Washington state case does, however, provide some guidance on the purpose ofthe rule.

In Sherman v. State, 128Wn2d 164,905P.2d355, (Wash. 1995) citing "Hodes,
The Law ofLawyering: A Handbook on the Model Rules ofProfessional Conduct" 6261?
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27 (Supp. 1992), the court quotes:

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"On its face, the rule [RPC 3.4(a)] merely requires the preservation ofrecordspresumably for disclostre shouful such a duty aise.ftom anoaher source " (emphasis added)
The reasoning in the Hodes Handbook goes to the hean ofthis matter. A body
evidence not particularly relevant to a case before one court, was absol'ltely critical to actions pending in other jurisdictions. No court is in a position to be fully informed on the

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potential devastating impact an order permitting destruction ofevidence may have on
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other civil cases, or pending or potential criminal investigations. As subject matterjurisdiction over a motion to destroy evidence does not exist, the

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RTJLE 60 MOTION PAGE 6 OF IO

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order is void and must be vacated under the provisions ofRule 60.

b) Rule 26 provides no {uthority for permitting destruction ofevidence.
The language throughout FRCP 26 refers exclusively to issues related to the

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"productioa" of discovery No part ofthe rule gives a court authority to consider
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destruction of evidence not produced.

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The circumstances in this case are perhaps unusual. The organized, recalled pet

fbod consisted ofa very large and duplicative body ofevidence. The same is true ofthe
wheat gluten evidence. No reasonable person could expect the entire mass ofthese two
huge bodies of evidence to be produced on discovery in its entirety.

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lt is certainly within
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coun's discretion to limit production under such circumstances. Never the less,

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cannot, and should not. relieve a litigant ofthe liability that would otherwise ensue ifthe

production required for one case is not sufficient to meet the needs ofother cases.

A legitimate motion under the rule would have asked this Court to limit
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"production" to that pan ofthose two bodies ofevidence which the manufacturing
defendants subsequently retained. with no refbrence to destroying the remainder. Having

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made that part
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ofthe evidence available for discovery, and without aid or counsel liom

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Iegal professionals, the manufacturing defendants, on thir own initiative, could then decided whether or not it would be prudent to retain that pan ofthe evidence not subject

to production. Considering the scope ofthe evidence retained as fbr as the recalled pet
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food and wheat gluten is concerned, it's hard to imagine a circumstance where the
remainder could not be disposed oC without a risk of future spoliation related liability. As far as the "unorganized inventory" is concerned, it was undeniably within this

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RULE 60 MOTION PAGE 7 OF IO

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Court's discretion to say, "This evidence need not be produced on discovery in lhis case.".
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However, the Court exceeded the authority ofthe rule in granting permission to destroy
the evidence. This evidence was unique and irreplaceable. This Court did not have

authority to enter discovery orders affecting state cases where it does not have original
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jurisdiction. nor does it have the authority to relieve deflndants ofliabilities they would
otherwise face as a result ofdestroying material evidence. As the order permitting destruction ofevidence exceeds the Court's authority under Rule 26, the order is void and

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should be vacated.
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c) An order permitting destruction ofevidence is contrary to law.

l8 U.S.C. $1503(a) and (b) provide in pertinent part:
"Whoever corruptly... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede. the due administration ofjustice, shall be punished as provided in subsection (b)..." "The punishment for an offense under this section is... imprisonment for not more than l0 years, a fine under this title. or both."

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ln Il.S. t- Lundwtrll. I F.Supp.2d 249 (S.D.N.Y. 1998), theU.S. District Cou.t for
the Southem District ofNew York refused to dismiss an indictment under the provisions

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18 U.S.C. g I503(a) against ofncials of Texaco, lnc. for destruction ofevidence in a

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civilcase.
The actions ofcounsel for defendant manufacturers constitutes fraud on the court.

l8 U.S.C. $ l5l2(c) provides in pertinent pan:
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"Whoever cotuptl),- (l) alters. destroys, mutilates, or conceals a record, document. or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an o{ficial proceeding; or (2) otherwise obstructs. influences. or inpedes any oltrciql plocee.ling, ot attempts to do so, shall be fined under this title or imprisoned not more thaD 20 years, or both "
(emphasis added)
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As used above, in pertinent part, 18 U. S.C. $ I 515 defines th relevant terms in the
statule:

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"the tetrr, "conuptly" means acting with an imprope. purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destrofng a document or other information."
"Ihe term"ofricial prcceedin!' mean. . a proceeding before ajudge or court the United States"(emphasis added)
Compared to other Federal criminal statutes and penalties, this Court's order

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permitting destruction ofevidence is on par with granting a motion to rob a bank in violation of l8 U.S.C $2113 Both impose penalties ofup to 20 years.

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At page 14 ofthe motion to destroy evidence (#103), the manufacturing
defendants, including rhe Menu Foods defendant, state:

"This Unorganized lnventory is ofno discemable use to any party interested in future testing ofthe produd "
This statement was knowingly false and misleading, was made with the intent to
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conuptly influence this Coun, and was made by counsel for Menu Foods with the inrent to obstructjustice in numerous
cases pending across the

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U.S. and Canada. Funhermore,

public disclosures by Menu Foods show it was aware criminal investigations were
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undrway by Federal authorities at the time the motion was presentd to this Court. Rule
60 gives a court unlimited authority "to set aside ajudgment for liaud upon the Cou.t".

As criminal statutes unconditionally prohibit the destruction ofevidence. and as no

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authority exists which would give a court discretion to grant a person or entity permission to engage in criminal conduct, and as the order was obtained as a result offlaud upon the

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court, the order is void as a matter oflaw and should be vacated.

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5. CONCLUSION
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For the foregoing reasons, this motion to vacate those portions of"product retention" orders #106 and #140, which permit destruction ofevidence, should be granted.
Furthermore,

tiis Court should impose appropriate terms, sufficient to redress harm done

to aggrieved non pafiies prejudiced by these orders.
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Dsted: January 6, 2009. Respectfu lly submitted by:

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Donald R. Earl (pro se) 3090 Discovery Road Port Townsend, WA 98368 (360\ 3't9-66M

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RTJLE 60 MOTION PAGE IO OF IO

EXHIBITA
Declaration of Service of Summons and Complaint

COPY
BETWEENI

Court Filo No.: 07 2 00250

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THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF JEFFERSON
DONALD R. EARL PLAINTIFF
AND

MENU FOODS INCOME FUND, ET AL THE KROGER CO. DEFENDANTS

AFFIDAVIT OF SERVICE
l. Richard Hoeg, of lhe City of Toronto, in the Province of Onlario, Process Server, make oath and say:
(1)

On July 31,2007, at 4:30 PM, I served MENU FOODS INCOME FUND wilh the SUMMONS AND COMPLAINT by leaving a clpy with MARK WIENS, Chief Financial Officer and pe6on appearing in car and confol and/or management ot MENU FOODS INCOME FUND at 8 Falconer Ddve, Streetsville. Onta.io. LsN 191.
I was able to identify the person by means of: (a) At lhe time and placo of seMce, MARK wlENs idenlified himself to me.

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(3)

I,IARK WIENS is a white-skinned, brown-haired male who is apprcximatly 50 years of age, stands approximately 6 feet 1 inches lall and weighs approximately 165 lbs. MARK WIENS intormed mo and I verily bliove that he is not active in lho United Stiaies Military.

(4)

SWORN BEFORE ME at the City of Toronto, in lhe Province of Ontario, this 13th day ofAugust,

2007.

Stovon Jac* K0vacs, a Commis8ioner, etc.,

Provinco

of ontario, tor 80rg

Procoss

Sorvsrs Inc,,andfor Process Serying and '1997 malors only. Tonam Protciion Acl.

Erpirss Jun 23, 2009.

EXHIBIT B
Declaration of Christopher

Mifflin

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SUPEzuOR COURT OF WASEINGTON
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FOR JBFFBNSON
R. EARL,

COIJNIY

t0 DONAID

Tls HoroIable Clraddock Velse!
No.07-2-00250.1

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Plujltiff,

MM'LIN tr{ SUP}ORT
MEftO FOODS INcoME FUND and T1{B KROGER CO'
Dftodants.

I'NCLARAIION OF

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FOODS' RESPONSE TO PLAINTIFITS (') CR 6O(b) MOTION TO VACATE PRODUCT nITENIION ORDER ENTERED ON 2n3/08, AND (2) CR 26(b) MOTION TO PRODUCE I'ISCOVERY Heiring D.te: Fddf,y, Argpit 22, 2008

STOPNER JOT MENT,I

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Hsdilg TiEe:

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Chlistopher J. Mimin hdcby declaEs rmder pendty of perjury ar follows:

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J am

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l.rr of

Bgq I bdve pcrsonal lqowledge of lhc factg set fortb

i! rhis

De{lr.ratio!, atrd I a8l competcnt to tostify ro rbose facls.
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@r the Exccutive VicePrEsidert of OFentionE of Metu Foods

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Lir4ited C'Metru !rood6"), wNcb js the sdministralor of the DefcDdent Mcnu Foods IItcoEB
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Fund. !n Ely position

as Executive Vic-PresideDt

of oFeratiolr lor Menn Foodr. my duties

iacluded managing and ovorseciog the siorrgc of.taud pet foo4 rdw wheal glute! ald other

product ord Beterials storcd by Menu Foods relating to a Mdch 2007 volwtary recall of
DECT^RATION OF CHX,ISTOPHER J. MTFFLIN
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DLA Pips US
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AEluq Sdtc 7000

SeatU!, \nA 9E104-704.1i Tel: [phone]

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oertain pel food pmdrrcls by Menu Foods and olhcr pt food manufactuaors and reLlilers.

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As of December 2007, Mernr Foods polsessed apFoximately 647,917 cases of

norBanized product and llEterisl thal was retrded to Menu Foods
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606 telailsls

iD coqnectioq

with lbe March 2007 recall in an unorga.rized haph.zord malner rnd was not well packaged in
most insts[ces (the "Utrolganizcd Laventory'). T[e Unorganized tnveltory comprised various

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itcss, including reralled pet food, mn-rccsllsd pel food, pet food tbat lras not lra.lufachrred by
Mcbu Food5, ro!-pet food iteFs, aDd tash. The Uoorganrzed Lryentory $,ss stored at certait
warehouses locsted itr K3lsse, New Jersly UnorgaDized llxventory ard olbcr products

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ard Cenda" Menu Foods' cost for storiDg the
to lhe

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.rd mntetidt Elating

M.tch 2007 voluotary

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rccall uas dpproximarely $1,032,000 per ycsr.

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O! Dccdrber

18, 200?, lhe United StttE!

Dishict Co||d fo. the District ofN6w

Jersey issued an Order

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lbe Edtidistrict

litigttio!

captioned

Ir

re Pei Food Ptoduclt

Li4bilily

Litigation,No. W-286r, MDL Docket No. 1650 (D,NJ,), which, aoolg o$cr thing!, peroittrd

l4 Me[u foods to
Order").
5.

distrroso

of all of tbe Uoorganiad ltrycotory in irs posrelsioD (the "MDL

A-ffr

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entry ofthe MDL Order, Menu loods irsrtrediately souglt the cntry

of

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subsbltively identical ordrc, cither by coDrcnt or by contested motioa, itr all sts.rd-alone cass
rhat were Fcndbg at lhe time of tlre

MDL Order and in whicL Menu Foods was lalDcd a! a

dcfendnrt. Melu Foods also sought the enEy ofa $$gtsntively idcntical order
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colJrl5.

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the Caradiao

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tbe majority ofthe stard-aloue cEies, Menu Foods oblaiicd

tle consctrt ofthc

plaintifrs 10 $e ency of odss tbai at subslartively ideDtic&l to the MDL
CanadiaD corrts eDterd an order tbst is $rbstantil,Bly identical to the 24

fuer.

Thc

MDL Odet on J6truary

23, 2008. Ordets lhat &e snbnaDtivrly identical to th MDL Ordlr had becr ctrtered in all
the stsnd'alolc csses

of

ff ofMay 9.2008.

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This Colrt is$led ar| mder that is substaalivdy ideDticsl to thc MDL Oder in
DLA PIpeTUSLLP Avauq Sljte 7000
98104-7044

DECLAIIATION OF CHRISTOIHER J, MllTLIN
Slattte,

?01 FlEh

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. Tet: 206.Et9.a800

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this lawsuit on Fetnulry 15,2008. As ofrbruary 15, 200E, Melu Foodj \ras actively skiog

tle estry of ordrrs

substantir,ely ideDticol to

tI MDL

Order in

all ol the rkld-alons

cBses,

Given tLc costs of storiDg the Unorganized Lrvenmry a'd orher o|atcri&ls, it war impwative.ro
MeDu Fqgds to receive ell such conserts and orders s5 quickly a5 possible.
the plaint'rff in

I undlsrand tftst

tlis laqsuit solght

aFpellale rvicw

oftrls Co]rn's February 15,2008 Or&t,

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8.

Menu Foods codplcted its disposa.l

of tbe Unorgaoized LNeDtory in

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posse$iotr oD July 30, ?008. Melu foods Do loDger posscs.ses @y Ulolgaiized Inverrtory. I declare under peralty ofpcrjdry that
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foregoilg is tru. dld conect

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/' h Ltch^oeu\ Execuled at-thbll

l( ,day

ofAugun, 2008-

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Sworo to and subscribcd l6

beforepe this
day

ot/l,'"a/ ,2ggX
M, SNYDER

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worrrv ruouc orxw rmsev
CoDnission Brpirr! 4n5n3

DNffA

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9ltritrsoo

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DECLANATION Of C}IN STOPHER J, MIFFLIN
Scartte.

DLA
701

PiPeT US

LLP
7000
9.4

Fith Avcnuc, Suit

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98104"70,14. Tcl: 206.63

800