Moyer Packing Co. v. U.S.
| Decision Date | 08 July 2008 |
| Docket Number | Civil Action No. 07-00974. |
| Citation | 567 F.Supp.2d 737 |
| Parties | MOYER PACKING COMPANY, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Shannon Elise McClure, Reed Smith LLP, Philadelphia, PA, Wendy H. Schwartz, Reed Smith LLP, New York, NY, for Plaintiff.
Viveca D. Parker, US Attorney's Office, Philadelphia, PA, for Defendant.
Before the court is Defendant United States of America's Motion to Dismiss Plaintiff Moyer Packing Company's Complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)1 of the Federal Rules of Civil Procedure and Plaintiffs Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs claims arise from a government inspector's alleged release into production of a beef carcass, the tissue of which had been sent for testing, before the test results were obtained and returned. The carcass was permitted to be commingled and processed. The test results showed the carcass to be contaminated. Promptly thereafter, all meat that was so processed was successfully recalled from public sale and destroyed along with all other contaminated product not shipped.
Plaintiff brings suit pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), alleging negligent inspection (Count I), negligent performance of undertaking to render services to Plaintiff (Count II), and negligent performance of undertaking of services to the general public causing harm to Plaintiff (Count III).
Issues raised by the parties' motions are whether: (1) Plaintiffs claims for Good Samaritan liability satisfy the private analogue requirement under the FTCA so as to permit the exercise of jurisdiction; (2) Plaintiffs FTCA claims are barred by the misrepresentation defense so as to preclude jurisdiction; and (3) genuine issues of material fact exist as to actual negligence.
For the reasons that follow, Defendant's Motion to Dismiss is GRANTED, IN PART, and DENIED, IN PART, and Plaintiffs Motion for Summary Judgment is DENIED, in its entirety.
In summary, after determining that Defendant brings a factual challenge under Rule 12(b)(1), the court finds that Plaintiff cannot satisfy the private analogue requirement under the FTCA for its Good Samaritan claim for liability for negligently performing services Defendant undertook to provide to Plaintiff, applying the Restatement (Second) of Torts § 323. Plaintiff was not the direct intended beneficiary of Defendant's conduct. Therefore, Count II will be dismissed for lack of jurisdiction. However, the court finds that Plaintiff could conceivably satisfy the private analogue requirement as to its negligent inspection and Good Samaritan claims for negligently performing services that Defendant undertook to render to the general public, thereby causing harm to Plaintiff, applying Restatement (Second) of Torts § 324A. Therefore, Counts I and III cannot be dismissed. The court also concludes that Plaintiffs FTCA claims are not barred by the misrepresentation defense inasmuch as they are not for negligent misrepresentation, but rather negligent conduct. Finally, as to Plaintiffs summary judgment motion, the court concludes that genuine issues of material fact exist as to whether Defendant failed to exercise reasonable care in releasing or permitting the release of carcass No. 05125274 and whether Plaintiffs reliance on the government inspector's alleged negligent conduct was reasonable under the circumstances presented.
Assertions of fact are derived from memoranda submitted in support of and in opposition to Defendant's motion to dismiss pursuant to Rule 12(b)(1) and Plaintiffs motion for summary judgment pursuant to Rule 56(c), and all exhibits attached thereto.2 Undisputed facts follow. Disputed issues of fact are duly noted.
Plaintiff is a beef processing and rendering company located in Souderton, Pennsylvania. (Pl.'s Mot. for Summ. J., Ex. 1, Raspaldo Decl. (hereinafter "Raspaldo Decl.") ¶ 1; Def.'s Resp. to Statement of Undisputed Facts in Supp. of Pl.'s Mot. for Summ. J. (hereinafter "Def.'s Resp. to SUF" ¶ 1.) It is agreed that Plaintiff operates under the oversight of the United States Department of Agriculture's ("USDA") Food Safety and Inspection Service ("FSIS"), but the oversight level is in dispute. (Raspaldo Decl. ¶ 3; Def.'s Resp. to SUF ¶ 2.) The FSIS conducts testing of the beef carcasses at Plaintiffs plant.
The FSIS performs two types of tests on beef carcasses: (1) a Fast Antimicrobial Screen Test ("FAST test"), which is performed in-plant and is designed to detect anti-microbial drug residues, and (2) a laboratory test ("LAB test"), which is performed at an FSIS laboratory and is designed to diagnose a pathological condition and/or confirm the results of a FAST test. FSIS Directive 10,230.6 (Jan. 6, 2006), available at http://www.fsis.usda.gov/ OPPDE/rdad/FSISDirectives/10230-6.pdf; FSIS Directive 10,220.3 (Aug. 23, 2006), available at http://www.fsis.usda.gov/ OPPDE/rdad/FSISDirectives/10220-3.pdf. At Plaintiffs plant in February 2006, FAST test results were generally processed for the FSIS within forty-eight hours. (Raspaldo Decl. ¶ 4; Def.'s Resp. to SUF ¶ 3.) LAB test results usually took at least five to seven days to process. (Raspaldo Decl. ¶ 4; Def.'s Resp. to SUF ¶ 4; Pl.'s Mot. for Summ. J., Ex. 5, FSIS Pathology Report (hereinafter "FSIS Pathology Report"); Pl.'s Reply Mem. of Law in Supp. of Pl.'s Mot. for Summ. J. 2.) FSIS personnel decided which tissue samples needed to be sent for LAB tests and which tissue samples needed FAST tests. (Raspaldo Decl. ¶ 5; Def.'s Resp. to SUF ¶ 5.)
In February 2006, all carcasses which FSIS designated for either a FAST or LAB test were placed under official FSIS retention by FSIS inspectors until the test results were returned. (Raspaldo Decl. ¶ 6; Def.'s Resp. to SUF ¶ 6.) Plaintiff contends that once a test was returned, the FSIS inspector would either sign to release a carcass to Plaintiff if the test result was negative or direct the condemnation of a carcass if the test result was positive. (Raspaldo Decl. ¶ 6.) Defendant asserts that the effect of the FSIS inspector's signature on a document evidencing negative test results was authorization for another FSIS inspector, but only the federal inspector, to retrieve the carcass from the USDA retention area and then turn it over to Plaintiffs employees for production processing. (Def.'s Resp. to SUF ¶ 6; Def.'s Mem. of Points and Authorities in Opp. to Pl.'s Mot. for Summ. J. (hereinafter "Def.'s Mem. Opp. Summ. J."), Ismail Decl. (hereinafter "Ismail Decl.") ¶ 9.)
Plaintiff maintained a Carcass Retained Log ("CRL"). The CRL listed all carcasses that FSIS had designated for a FAST or LAB test and reflected Plaintiffs understanding of the dates that the FSIS took the tissue sample and the type of test FSIS ordered. (Raspaldo Decl. ¶ 7; Def.'s Resp. to SUF ¶ 7.) Plaintiff contends, and Defendant disputes, that in February 2006, the FSIS inspector not only reviewed the test results daily but advised an employee in Plaintiffs Quality Assurance Group of the results of each test. Plaintiff further contends that an FSIS inspector would sign the CRL to release to Plaintiff carcasses that had negative test results. (Raspaldo Decl. ¶ 8; Figueroa Decl. ¶ 3.) Defendant, however, asserts that the effect of the FSIS inspector's signature was only to permit an FSIS inspector to retrieve carcasses with negative test results from the USDA retention area to turn over to Plaintiffs employees. (Def.'s Resp. to SUF ¶ 9; Ismail Decl. ¶ 10.)
It is undisputed that, on February 1, 2006, FSIS inspectors took tissue samples from several carcasses, which were segregated under the control of FSIS and listed on the CRL. (Figueroa Decl. ¶ 4; Pl.'s Mot. for Summ. J., Ex. 3, Carcass Retained Log (hereinafter "Carcass Retained Log"); Def.'s Resp. to SUF ¶ 10.) Most of those tissue samples underwent FAST testing. (Figueroa Decl. ¶ 5; Carcass Retained Log; Def.'s Resp. to SUF ¶ 11.) The CRL originally showed that the tissue sample from one carcass, No. 05125274, was sent for a LAB test. (Figueroa Decl. ¶ 6; Carcass Retained Log; Def.'s Resp. to SUF ¶ 12; Ismail Decl. ¶ 12.)
On February 3, 2006, Sheila Figueroa, an employee in Plaintiffs Quality Assurance Group, met with the FSIS Inspector-in-Charge, Dr. Nader Ismail. (Figueroa Decl. ¶ 7; Raspaldo Decl. ¶ 9; Def.'s Resp. to SUF ¶ 13; Ismail Decl. ¶ 7.) What happened at that meeting is at the core of the liability question. The two participants offer significantly conflicting versions of events.
Figueroa avers that during the meeting she had a discussion with Ismail regarding test results. (Figueroa Decl. ¶¶ 8-12.) She claims that she specifically recalls that she asked Ismail whether he had any carcasses that had been sent for FAST test results and which could be released. (Figueroa Decl. ¶ 8.) She states that Ismail took the CRL arid began signing it to release carcasses. (Figueroa Decl. ¶ 9.) She avers that she saw Ismail sign for release of carcass No. 05125274, which was clearly designated on the CRL for a LAB test. (Figueroa Decl. ¶ 10.) She states that she asked Ismail unequivocally whether carcass No. 05125274 could be released because the CRL listed the carcass as a LAB test and not a FAST test. (Figueroa Decl. ¶ 11.) Figueroa avers that Ismail told her that it was "OK," and continued to sign the CRL. (Figueroa Decl. ¶ 12.)
Figueroa declares that, on that same day, she consulted with her supervisor, Jose Raspaldo, as to the actions of Ismail pertaining to carcass No. 05125274. (Figu...
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