Grano v. Sodexo, Inc.
| Decision Date | 06 January 2023 |
| Docket Number | 3:18-cv-1818-RSH-BLM |
| Parties | VINCENT GRANO, Plaintiff, v. SODEXO MANAGEMENT, INC., et al., Defendants, AND RELATED CASES. |
| Court | U.S. District Court — Southern District of California |
ORDER DENYING DEFENDANTS' MOTION TO EXCLUDE THE EPIAID REPORT CASE-CONTROL STUDY, & REFERENCE TO 9 C.F.R. § 417.3(B) [ECF NO. 337] DENYING AS MOOT DEFENDANTS' MOTION TO EXCLUDE THE DECLARATION OF DR. KEATON [ECF NO. 379] DENYING & GRANTING IN PART DEFENDANTS' DAUBERT MOTION REGARDING DR. KIRK SMITH [ECF NO. 338] DENYING DEFENDANTS' DAUBERT MOTION REGARDING SCOTT STILLWELL PH.D. [ECF NO. 339] DENYING DEFENDANTS' DAUBERT MOTION AS TO DR. MICHAEL MONT & DENYING WITHOUT PREJUDICE DEFENDANTS' MOTION AS TO DR. ROBERTO CIVITELLI AS MOOT [ECF NO. 346] DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS' CLAIMS [ECF NO. 341] DENYING CARGILL'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON PUNITIVE DAMAGES [ECF NO. 343] DENYING AS MOOT CARGILL'S MOTION FOR SUMMARY JUDGMENT ON SODEXO'S CROSS CLAIMS [ECF NO 342] DENYING & GRANTING IN PART U.S. FOODS' MOTION FOR SUMMARY JUDGMENT & ORDERING SUPPLEMENTAL BRIEFING WITHIN 14 DAYS OF THIS ORDER [ECF NO. 340]
The Parties have had nine motions pending in this case for over a year: two motions in limine, three Daubert motions, and four motions for summary judgment. The Court addresses each motion separately below.
In October 2017, an outbreak of Shiga toxin-producing Escherichia coli O157:H7 and O26 (“STEC”) at U.S. Marine Corps Base Camp Pendleton (Edson Range) and the Marine Corps Recruit Depot sickened at least 244 Marine Corps recruits. See ECF No. 312 at 3.[1] Fifteen of those recruits developed Hemolytic Uremic Syndrome, a condition where the small blood vessels in a person's kidneys become inflamed and damaged, leading to clots that inhibit the proper filtering system in the kidneys and that can result in potentially life-threatening acute renal failure. Id. at 3.
Epidemiologists and medical professionals from the U.S. Navy and the Centers for Disease Control and Prevention (“CDC”) swarmed to the center of the outbreak to investigate. Id. at 3.[2] On November 19, 2017, the CDC deployed an Epidemiologic Assistance (“Epi-Aid”) Team to San Diego.[3] ECF No. 337-2 at 7. The Epi-Aid conducted an environmental investigation, food and environmental testing, and a case-control study. Id. at 8.[4] The CDC's case-control study included surveying and interviewing 43 STEC patients and 135 healthy controls, as well as inspecting the recruits' sleep quarters, bathroom facilities, and the cafeterias. ECF No. 312 at 3. After concluding its investigation and case-control study, the CDC summarized its findings in a report dated January 23, 2018. Id. at 4.
Plaintiffs are Marine Corps recruits who allege that the ground beef patties (i.e., hamburgers or cheeseburgers) served in the cafeteria on October 21, 2017, were responsible for the outbreak. Id. at 4. Defendant Cargill Meat Solutions Corp. (“Cargill”) allegedly manufactured and produced the patties. Id. at 20. Third-Party Defendant U.S. Foods, Inc. (“US Foods”), allegedly received, stored, refrigerated, distributed, and delivered the beef patties to Defendant Sodexo Management, Inc. (“Sodexo”). ECF No. 128 at 3. Sodexo, which was under contract to provide food service at all Marine garrisons and mess halls during the relevant time, allegedly prepared and served the hamburgers and cheeseburgers on October 21, 2017. ECF No. 312 at 5-6.
This is one of seven related cases filed by Marine recruits.[5] Plaintiff Vincent Grano filed his lawsuit first on August 3, 2018. ECF No. 1.[6] The Court consolidated the seven related cases for all motion practice and designated Grano's action as the Lead Case File on March 9, 2020. ECF No. 88 at 2; see ECF No. 79.
Plaintiffs' lawsuit also triggered a slew of additional claims. Cargill filed a crossclaim against Sodexo on December 5, 2019, for breach of the indemnification provision of an agreement between the Parties. ECF No. 53. Sodexo filed a competing cross-claim against Cargill on December 26, 2019, for breach of indemnification. ECF No. 62. Sodexo also filed a third-party complaint against U.S. Foods on May 7, 2020, asserting one count of equitable indemnity and one count of contribution and apportionment. ECF No. 128 at 56.
Relevant to this Order, the Parties have filed nine motions:
The Court addresses all nine motions in this Order.
A party may move in limine to exclude inadmissible or excludable evidence or testimony before it is introduced at trial. Luce v. United States, 469 U.S. 38, 40 n.2 (1984). Motions in limine “should not be used to resolve factual disputes, weigh evidence, or as a substitute for a motion for summary judgment.” Lo v. United States, No. 2:17-cv-01202, 2022 WL 1014902, at *2 (W.D. Wash. Apr. 5, 2022). Unless the evidence is “inadmissible on all potential grounds[,] . . . evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.” BNSF Ry. Co. v. Quad City Testing Lab'y, Inc., No. 07-cv-170, 2010 WL 4337827, at *1 (D. Mont. Oct. 26, 2010) (quotation marks and citation omitted).
Rulings on motions in limine fall entirely within a court's discretion. United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999) (citing Luce, 469 U.S. at 41-42). “Any ruling on a motion in limine, however, is necessarily tentative in nature; a ‘district court may change its ruling at trial because testimony may bring facts to the district court's attention that it did not anticipate at the time of its initial ruling.'” McNally v. Riis, No. 3:18-cv-1150, 2020 WL 209141, at *1 (S.D. Cal. Jan. 14, 2020) (quoting Bensimon, 172 F.3d at 1127). Denial of a motion in limine does not mean that the evidence contemplated by the motion will be admitted at trial. Bensimon, 172 F.3d at 1127 (). Instead, denial means that the court cannot - or should not - determine if the evidence in question should be excluded before trial. See McSherry v. City of Long Beach, 423 F.3d 1015, 1022 (9th Cir. 2005) ().
Defendants move in limine to exclude three pieces of evidence: (A) the CDC's Report and Case-Control Study, (B) references to 9 C.F.R. § 417.3(b), and (C) the Declaration of Dr. Amelia Keaton. The Court denies all requests as explained below.
Cargill moves to exclude the CDC's investigation and Report, as well as any testimony and documents that rely on the CDC's work. ECF No. 337. Sodexo joins Cargill's Motion. ECF No. 360. The CDC's Report described a statistically significant association between cases of STEC and consumption of “any undercooked beef products,” where “[t]he variable ‘undercooked beef' includes any dishes containing ground beef (such as hamburgers) or other beef products (such as beef stew or Swiss steak).” ECF No. 337-2 at 12. “While the case-control study did identify a statically-significant association with undercooked beef and illness, a specific dish was not found to be associated with illness.” Id. at 14. The Report noted that “[n]o individual beef dishes or other individual food exposures were significantly associated with case status.” Id. at 12.
As explained below, the Court denies Defendants' Motion.
Hearsay is generally not admissible. Fed.R.Evid. 802. However, one exception to the rule against hearsay is “[a] record or statement of a public office [that] sets out . . . in a civil case . . . factual findings from a legally authorized investigation” so long as “the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.” Fed.R.Evid 803(8). “A party opposing the introduction of a public record bears the burden of coming forward with enough negative factors to persuade a court that a report should not be admitted.” Johnson v. City of Pleasanton, 982 F.2d 350, 352 (9th Cir. 1992) (citation omitted). According to the Advisory Committee notes to Federal Rule of Evidence 803(8), factors which “may” assist a court in determining if a report is...
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