September 2014

Cargill Obtains Jury Verdict, Judgment and Dismissal of Counterclaim

Our firm served as lead trial and appellate counsel for the plaintiff Cargill in obtaining a $9 million jury verdict and judgment, and dismissal of a $16.3 million counterclaim. The lawsuit arose out of an E. coli O157:H7 outbreak that occurred in 2007. A public health investigation traced the E. coli O157:H7 back to ground beef patties sold by Cargill, triggering a recall. The ground beef had been manufactured using beef trim from four suppliers and a further nationwide epidemiological investigation connected the contamination to the beef supplied by the defendant Greater Omaha Packing Company Inc. Cargill filed suit for breach of warranty against Greater Omaha, and Greater Omaha responded with a counterclaim for tortious interference. The impetus for Greater Omaha’s counterclaim was an article in which an attorney initially retained by Cargill allegedly commented to reporter Michael Moss of The New York Times on aspects of this case before it was filed. On October 3, 2009, Mr. Moss published a 10-page, Pulitzer-prize winning story regarding the E. coli outbreak titled “The Burger That Shattered Her Life.” Shortly before the scheduled trial date, the Court denied Cargill’s Daubert motion to exclude Greater Omaha’s damages expert, who had calculated damages of $16.3 million flowing from The New York Times article (2014 WL 1333746). Later, however, the Court granted Cargill’s motion for summary judgment as to the counterclaim (2014 WL 1344487). The trial centered upon (a) food safety processes and controls within the Greater Omaha and Cargill plants and (b) epidemiological evidence, including testimony from public health officials involved in the outbreak from around the country. The trial also included testimony from Greater Omaha’s primary expert, the Nebraska state epidemiologist, who testified that Greater Omaha was not responsible for the outbreak. Following the three-week trial, the jury rejected Great Omaha’s defenses and Cargill obtained a $9 million verdict. The post-trial order is available at 2014 WL 6815628. The affirming opinion from the U.S. Court of Appeals for the 8th Circuit is available at 819 F.3d 417. American Home Assurance Co., et al. v. Greater Omaha Packing Company, Inc., No. 8:11CV270 (D. Nebraska 2014).

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