In the MDL coordinating the litigation stemming from alleged contamination of peanut butter in 2007, the court has ruled that five experts may testify for defendant ConAgra, overruling plaintiffs' Daubert challenge. In re Con Agra Peanut Butter Litigation, No. 07-1845 (N.D. Ga. 3/23/11).
The litigation stems from the company's 2007 recall of Peter Pan and Great Value peanut butter for possible salmonella contamination. Plaintiffs moved to exclude microbiologists Dr. Mansour Samadpour and Dr. Gregory Ma, epidemiology expert Dr. Douglas Weed, medical expert Dr. Samuel Miller, and food safety expert Dr. Linda Harris.
Dr. Mansour Samadpour and Gregory Ma are microbiologists at the Institute for Environmental Health/Molecular Epidemiology, Inc. (“IEH”), an organization retained by ConAgra (and several plaintiffs’ attorneys, interestingly) to test jars of recalled peanut butter for Salmonella. Samadpour and Ma intended to testify about the test methods and results. Plaintiffs complained that Samadpour and Ma "arbitrarily excluded" the results of over 36% of the Salmonella tests that they performed. Samadpour and Ma admitted that they excluded the results of 729 tests from their reported analysis. But they explained that these results were excluded because the tests were performed by IEH for plaintiffs’ attorneys, and were subject to confidentiality agreements that precluded disclosure of the test results to ConAgra. That by itself is not grounds to find their method unreliable.
Also, Plaintiffs argued that Samadpour and Ma included test results of samples that were too old to yield reliable results. The Plaintiffs claimed that 99.99% of Salmonella in peanut butter dies after 24 weeks, rendering Salmonella tests conducted more than 24 weeks after manufacture unreliable. They supposedly based this conclusion on an article co-authored by a defense expert; but that article only stated that Salmonella can be reliably recovered from peanut butter at least up to 24 weeks post manufacture. The CDC thinks it can test well after 24 weeks.
Dr. Douglas Weed intended to testify about the appropriate methodology for determining specific causation in contaminated food cases. Readers will recall the distinction between general causation (can salmonella in food cause the illness) and specific causation (did it cause this plaintiff's illness this time). Dr. Weed is a faculty member in the Department of Epidemiology at Johns Hopkins School of Hygiene and Public Health. He has published numerous articles on topics including causal inference, epidemiological and public health methods, and evidentiary and inferential methods. Even if he had never applied his causation approach to peanut butter, he was more than qualified to do so, said the court.
Dr. Samuel Miller was offered to testify about the causes of gastroenteritis; the rates and sources of salmonellosis; the investigation by the CDC that led to ConAgra’s voluntary recall; and the possible prognoses for patients with salmonellosis. He also proposed to testify about the limitations of patient history and physical exams in determining the actual cause of gastroenteritis and opine that a stool culture is the only method that allows for the identification of the source of a bacterial infection of the gastrointestinal tract. He was found well qualified; he relied in part on the other experts, and because their opinions were independently admissible, his reliance on them was acceptable as well.
Dr. Linda Harris was offered to present several food opinions, including: (1) that there was no industry standard for a specific minimum log reduction or minimum time and temperature parameter for the dry roasting of peanuts; (2) that levels of Salmonella on raw peanuts are likely to be similar to those found on almonds; (3) that ConAgra’s internal safety plan appropriately identified dry roasting as a control measure capable of reducing potential biological hazards; (4) that ConAgra properly evaluated and monitored that control measure; (5) that ConAgra took
appropriate corrective action following detection of Salmonella in an isolated finished
product in October 2004; and (6) that there was no evidence that the outbreak at issue
was attributable to the roaster. Plaintiffs argued that Dr. Harris was an expert in almonds, not peanuts, and her expertise in almonds did not qualify her to testify about peanuts. However, said the court, an expert’s training does not always need to be narrowly tailored to match the exact point of dispute in a case. Instead, an expert with the education or background to permit her to analyze a given set of circumstances can through reading, calculations, and reasoning from known scientific principles make herself very much an expert in regard to the particular product even though she has not had actual experience with the product. Santoro v. Donnelly, 340 F. Supp. 2d 464, 473 (S.D.N.Y. 2004).
Her broad expertise in food-borne Salmonella as well as specific expertise in almonds, a high-fat, low moisture food that has properties similar to peanuts, was sufficient.