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Lori Precourt, Administrator of the Estate of Carolyn Black v. Fairbank Reconstruction Corp.

March 5, 2012

LORI PRECOURT, ADMINISTRATOR OF THE ESTATE OF CAROLYN BLACK
v.
FAIRBANK RECONSTRUCTION CORP., D/B/A FAIRBANK FARMS; GREATER OMAHA PACKING COMPANY, INC.; AND SHAW'S SUPERMARKETS, INC.



The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge

ORDER

Lori Precourt, as the administrator of the estate of her mother, Carolyn Black, asserts fourteen claims,*fn1 based on allegations that Black died as a result of eating contaminated beef that was supplied by Greater Omaha Packing Company, Inc. ("GOPAC") to Fairbank Reconstruction Corp. ("Fairbank"), which processed and distributed it, in the form of ground beef, to Shaw's Supermarkets ("Shaw's"), which sold ground beef to Black. Specifically, Precourt asserts claims for: (1) strict products liability, against Fairbank (Count I), GOPAC (Count II), and Shaw's (Count III); (2) breach of warranty, against Fairbank (Count IV), GOPAC (Count V), and Shaw's (Count VI); (3) negligence, against Fairbank (Count VII), GOPAC (Count VIII), and Shaw's (Count IX); (4) violation of the New Hampshire Consumer Protection Act ("CPA"), against Fairbank (Count X), GOPAC (Count XII), and Shaw's (Count XIII); and (5) enhanced compensatory damages, against GOPAC (Count XIV) and Fairbank (Count XV). Fairbank and Shaw's, in turn, assert crossclaims for contribution and indemnity against GOPAC as to all four of Precourt's theories of liability.

Before the court are four motions for summary judgment. In document no. 53, GOPAC seeks summary judgment on Precourt's claims for breach of warranty (Count V), violation of the CPA (Count XII), and enhanced compensatory damages (Count XIV). In document no. 57, Precourt seeks summary judgment on its strict-liability claims against all three defendants (Counts I-III). In document no. 58, Fairbank and Shaw's seek summary judgment on their crossclaims against GOPAC. And, in document no. 73, GOPAC seeks summary judgment on all of Precourt's claims and all of the crossclaims asserted by Fairbank and Shaw's. Each motion is duly opposed.

Summary Judgment Standard

Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). "The object of summary judgment is to 'pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Davila v. Corporacion de P.R. para la Diffusion Publica, 498 F.3d 9, 12 (1st Cir. 2007) (quoting Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir. 2004)). "[T]he court's task is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citations and internal quotation marks omitted).

"Once the moving party avers an absence of evidence to support the non-moving party's case, the non-moving party must offer 'definite, competent evidence to rebut the motion,'" Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009) (citing Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)), and "cannot rest on 'conclusory allegations, improbable inferences, [or] unsupported speculation,'" Meuser, 564 F.3d at 515 (quoting Welch v. Ciampa, 542 F.3d 927, 935 (1st Cir. 2008)). When ruling on a party's motion for summary judgment, a trial court "constru[es] the record in the light most favorable to the non-movant and resolv[es] all reasonable inferences in [that] party's favor." Meuser, 564 F.3d at 515 (citing Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir. 2002)).

Background

Before describing the relevant factual background, the court is compelled to point out one particularly unhelpful aspect of GOPAC's summary-judgment practice. In Precourt's memorandum in support of her motion for summary judgment, document no. 57-1, she "incorporate[s] a short and concise statement of material facts, supported by appropriate record citations, as to which [she] contends there is no genuine issue to be tried," as required by Local Rule 7.2(b)(1). In its objection, GOPAC does not "incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which [it] contends a genuine dispute exists so as to require a trial," LR 7.2(b)(2).

Instead, GOPAC provides its own factual narrative. Then it addresses Precourt's statement of facts in the following way. In response Precourt's statement that "[t]he . . . ground beef purchased by Ms. Black on September 24, 2009 was contaminated with E. coli O157:H7 at the time it left the control of Shaw's," Pl.'s Mem. of Law (doc. no. 57-1), at 5, GOPAC states: "Precourt contends that on September 24, 2009, Ms. Carolyn Black purchased E. coli O157:H7 contaminated ground beef produced by Fairbank at the Shaw's Supermarket in Seabrook, New Hampshire." Def.'s Obj. (doc. no. 83), at 5.

GOPAC can either concede the facts stated by Precourt or contest them, with citations to the record. GOPAC's manner of responding to Precourt's factual allegations, i.e., not addressing the facts directly, but merely reporting what it says the other parties said about the facts, is both inappropriate and ineffective. More to the point, GOPAC needlessly complicates the court's job of ascertaining which facts are disputed and which are not. In any event, all properly supported material facts that GOPAC does not properly oppose shall be deemed admitted. See LR 7.2(b)(2). That said, the court turns to the relevant factual background.

On September 24, 2009, Carolyn Black purchased a package of ground beef from Shaw's, in Seabrook, New Hampshire. That beef was contaminated with E. coli O157:H7. Black consumed the contaminated beef, and on October 4, was admitted to the hospital. She died on October 30, 2009, from respiratory failure, multisystem failure, and hemolytic uremic syndrome/thrombotic thrombocytopenic purpura, all directly resulting from her exposure to E. coli O157:H7.

The contaminated ground beef Black purchased from Shaw's was processed and distributed to Shaw's by Fairbank on September 16, 2009. In September of 2009, GOPAC supplied Fairbank with raw beef in the form of "beef trim."

The relationship between GOPAC and Fairbank was governed by an agreement known as the Fairbank Guarantee, that includes the following relevant provision:

The Seller [GOPAC] agrees to indemnify and hold harmless American Foodservice Corporation and American Fresh Foods and its' affiliates [including Fairbank], their Officers, Directors, employees and agents (herein referred to as "Buyer") harmless from all claims, damages, causes of action, suits, proceedings, judgments, charges, losses, costs, liabilities and expenses (including attorneys' fees) arising from any products (raw materials) as delivered to Buyer by Seller, that do not comply with the provisions of the Buyers' Raw Material Specifications or that are caused by the negligence or intentional misconduct of Seller, its' Agents and employees.

Stevens Aff., Ex. H. (doc. no. 60-8), at 3. Fairbank's Domestic Beef Raw Material Specifications include an expectation that all of its "beef raw material suppliers [are] to produce the cleanest possible raw materials and to comply with the USDA's 'Zero Tolerance' standards for fecal coliform bacteria." Id. at

6. Those specifications list a target level of "negative" for E. coli O157:H7. See id.

Margaret Long and Alice Smith also purchased ground beef from Shaw's that had been processed by Fairbank, and that was contaminated with E. coli O157:H7.*fn2 Like Black, both Long and Smith were sickened by E. coli O157:H7. The E. coli O157:H7 cultured from Long and Smith was a genetic match for the E. coli cultured from Black and a number of other victims of what the Center for Disease Control ("CDC") has called the "Northeast Outbreak." The CDC traced the Northeast Outbreak to ground beef processed and distributed by Fairbank. On October 31, Fairbank recalled 545,600 pounds of ground beef, including the ground beef that Shaw's had sold to Long, Smith, and Black.

Long and Smith each sued Fairbank in the United States District Court for the District of Maine. They asserted claims for strict products liability, breach of warranty, and negligence. Fairbank brought in GOPAC as a third-party defendant, seeking contribution and indemnification. At some point, Fairbank settled with Long and Smith and went to trial on its indemnification claim against GOPAC. On November 14, 2011, after a jury trial, judgment was entered in favor of Fairbank on its claim that it was entitled to indemnification from GOPAC for Long's and Smith's claims for breach of warranty. In a special verdict form, the jury in the Maine case found that: (1) "GOPAC delivered adulterated raw beef containing E. coli O157:H7 to Fairbank in September 2009," Stevens Aff., Ex. F (doc. no. 60-6), at 2; (2) "Fairbank acted as a reasonable buyer in using the adulterated raw beef delivered by GOPAC in September 2009," id.; and (3) the contaminated beef GOPAC delivered to Fairbank was ground by Fairbank and later consumed by both Long and Smith, thus causing their injuries, see id. at 2-3. Post-trial motions in the Maine case are currently pending.

The court concludes this section with the following recital of admissions by Fairbank and Shaw's. Shaw's admits that "the ground beef purchased by Ms. Black on September 24, 2009 was contaminated with E. coli O157:H7 at the time it left the control of Shaw's Supermarkets, Inc." Pl.'s Mot. Summ. J., Ex. F (doc. no. 57-8), at 2. Fairbank admits that: (1) "the ground beef purchased by Ms. Black on September 24, 2009 was contaminated with E. coli O157:H7 at the time it left the control of Fairbank Reconstruction Corp.," id., Ex. E (doc. no. 57-8), at 3; (2) "the E. coli O157:H7 cultured from Ms. Black on October 6, 2009 was a genetic match to that shared by those within the cluster of E. coli O157:H7 infections in New England," id. at 4; (3) "Ms. Black's E. coli O157:H7 infection in October 2009 resulted from consumption of the ground beef she purchased on September 24, 2009 that had been processed and sold by Fairbank Reconstruction Corp.," id.; and (5) "Fairbank, as a result of GOPAC's acts and omissions, is liable to plaintiff for any injuries to Ms. Black caused by the consumption of contaminated ground beef," id. at 6.

Discussion

As noted, four motions for summary judgment are currently pending. The court discusses each of them below, but not in the order in which they were filed.

A. Document No. 73

In document no. 73, which is chronologically GOPAC's second motion for summary judgment, GOPAC seeks summary judgment on all five of Precourt's claims against it as well as the four crossclaims asserted by Fairbank and Shaw's. GOPAC argues that:

(1) the only evidence Precourt, Fairbank, and Shaw's (collectively "plaintiffs") have offered linking GOPAC to the contaminated ground beef that Black purchased is an expert report by Thomas Hoffman; (2) the factual basis for Hoffman's report was "wholly discredited" in the Maine trial; and (3) without the discredited Hoffman report, plaintiffs cannot prove the causation elements of any of their claims. GOPAC's basic point is that Hoffman's is the only expert report that analyzes "the bin, lot or Shipping Invoice numbers purporting to trace raw materials from GOPAC through Fairbank to Shaw's and ultimately Ms. Black," Def.'s Mem. of Law (doc. no. 73-1), at 3, and that without such analysis, plaintiffs cannot prove their claims against it.

In response, plaintiffs make a number of points: (1) GOPAC's motion was filed two weeks after the deadline in the scheduling order; (2) Hoffman's report was never entered into evidence in the Maine trial; (3) Hoffman was never called as a witness in the Maine trial; (4) Hoffman's purportedly discredited report was rehabilitated through testimony and exhibits during the Maine trial, and GOPAC's reliance on the alleged error in Hoffman's report was necessarily rejected by the jury in Maine; (5) Hoffman has been withdrawn as an expert witness in this case; and (6) plaintiffs have produced substantial evidence linking GOPAC's beef to Black's death.

Many of plaintiffs' arguments appear to be sound. However, GOPAC's motion must be denied for a more fundamental reason: the "Statement of Material Facts" in GOPAC's memorandum of law does not, in fact, state any facts. It seems axiomatic that for summary-judgment purposes, a statement of facts is a statement about the conduct of the parties on which a legal claim is based. Here, GOPAC's memorandum of law states no such facts. Rather, in its eleven-paragraph "Statement of Material Facts," the first six paragraphs all describe plaintiffs' claims. For example, the first paragraph says: "Precourt, Fairbank and Shaw's all contend that on September 24, 2009, Ms. Carolyn [B]lack purchased ground beef at the Shaw's Supermarket in Seabrook, New Hampshire." Def.'s Mem. of Law (doc. no. 73-1), at 2. That is not a statement about anything Fairbank, Shaw's, or Black did prior to Precourt's filing suit; it is a statement about what plaintiffs are claiming in this case. Similarly, the next two paragraphs describe plaintiffs' disclosure of expert witnesses, while the final three paragraphs consist of GOPAC's characterization and analysis of plaintiffs' expert reports. Those are not facts; they are, if anything, legal arguments. Because GOPAC's memorandum includes no statement of material facts, and the motion it supports is untimely, GOPAC's second motion for summary judgment, document no. 73, is necessarily denied.

If those were not reasons enough to deny GOPAC's motion, granting it would require the court to weigh parties' evidence on causation, and determine the truth of that matter, which is not the proper role of a court considering a motion for summary judgment. See Noonan, 556 F.3d at 25. While GOPAC asserts that plaintiffs have produced no evidence other than the Hoffman report to connect it with the contaminated ground beef that Black purchased from Shaw's, that assertion is manifestly incorrect. Fairbank and Shaw's have produced an expert report containing the following opinion:

To a reasonable degree of scientific certainty, product that GO PAC produced on September 11, 2009 and shipped to Fairbank Farms was the source of the E. coli O157:H7 contamination associated with the plaintiffs' illness and the outbreak resulting in the recall of Fairbank Farms ground beef on October 31, 2009.

Def.'s Obj., Ellenbecker Aff., Ex. I (doc. no. 82-10), at 9. GOPAC has produced contrary evidence, including trial testimony from the Maine case showing that a person in California who had eaten no beef at all was sickened by E. coli O157:H7 that genetically matched the E. coli that sickened Long, Smith, and Black. See id., Ex. B (doc. no. 83-3), at 32-33. Because the court could not grant GOPAC's motion without resolving the factual dispute described above, that motion must be denied.

If there were a rule requiring a plaintiff in Precourt's position to prove the chain of custody of a defective product through expert testimony then, perhaps GOPAC's motion might have merit.*fn3 But GOPAC identifies no such rule. GOPAC is not even arguing about the content of Hoffman's opinion; it is arguing about bin numbers, lot numbers, and/or shipping invoice numbers, factual evidence that appears to have made it into the Maine trial even though Hoffman did not testify. In short, GOPAC's argument for summary judgment misses the mark by a wide margin.

B. Document No. 57

In document no. 57, Precourt moves for summary judgment on Counts I-III, its claims for strict products liability against each of the three defendants. GOPAC objects, while Fairbank and Shaw's have filed a response for the limited purposes of commenting on Precourt's reliance on the Hoffman report and arguing that GOPAC's liability for Black's death was conclusively established in the Maine case.*fn4

New Hampshire has "adopted the doctrine of strict liability of manufacturers for product defects in section 402A (1) of the Restatement (Second) of Torts." Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 831 (2005) (citing Royer v. Catholic Med. Ctr., 144 N.H. 330, 331 (1999); Price v. BIC Corp., 142 N.H. 386, 388 (1997)). The Restatement, in turn, provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer . . . is subject to liability for physical harm thereby ...


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