United States v. 2,116 Boxes of Boned Beef

• Decision Date: 07 May 1981
• Docket Number: Civ. A. No. 80-1360.
• Citation: 516 F. Supp. 321
• Parties: UNITED STATES of America, Plaintiff, v. 2,116 BOXES OF BONED BEEF WEIGHING APPROXIMATELY 154,121 POUNDS, and 541 Boxes of Offal Weighing Approximately 17,732 Pounds, Defendant.
• Court: U.S. District Court — District of Kansas

516 F. Supp. 321

UNITED STATES of America, Plaintiff, v. 2,116 BOXES OF BONED BEEF WEIGHING APPROXIMATELY 154,121 POUNDS, and 541 Boxes of Offal Weighing Approximately 17,732 Pounds, Defendant.

Civ. A. No. 80-1360.

United States District Court, D. Kansas.

May 7, 1981.

Robert R. Donlan, Dept. of Justice, Washington, D. C., Robert Spiller, Food & Drug Admin., Rockville, Md., Anthony Buccitelli, Dept. of Agriculture, Washington, D. C., for plaintiff.

Charles D. McAtee, Edison, Lewis, Porter & Haynes, Wilbur G. Leonard, Topeka, Kan., for defendant.

MEMORANDUM AND DECISION

KELLY, District Judge.

This is a statutory seizure action filed by the United States of America, plaintiff, pursuant to Section 673 of the Meat Inspection Act. This relates to the boned beef and offal of a lot of 273 animals, which were implanted with an illegal drug. The drug in question is diethylstilbestrol (DES), a drug allegedly known to cause cancer and other toxic effects, and which drug was implanted in the cattle (steers) after the last legal implant date as established by the Food and Drug Administration. The implants of DES were still present and were detected at the time of slaughter of the cattle and the carcasses and offal were officially held by the United States Department of Agriculture. Jarboe-Lackey Feedlots, Inc. is the owner of the beef in question and because this is an in rem action against the food, this party is not a defendant but only a claimant, intervening in behalf of the seized beef. The government alleges that the meat and offal of these animals is adulterated pursuant to 21 U.S.C. ? 601(m)(1), M2A and M3. In this, if the food is adulterated in any of these ways, the law requires that it be condemned and disposed of by destruction or sale, pursuant to order of this Court in conformance with the Act and the laws of the jurisdiction in which the beef was sold.

Initially the matter came to the Court's attention by way of the government's motion for summary judgment and claimant's motion for judgment on the pleadings. Each provided considerable affidavits and other authoritative material accompanied with briefs and arguments. Upon full review and reflection, it was apparent to the Court that considerable disparity of the material facts and law existed and the government's motion was overruled. The thrust of claimant's motion was based on the Secretary of Agriculture's alleged unlawful retention of the seized meat and offal in excess of a 20-day statutory period prior to the filing of the seizure action and in violation of 21 U.S.C. ? 672. The timely relevancy of this procedure was not clear to the Court and as a consequence the matter was taken under advisement, pending further evidence and argument. In light of the findings of this Court, as hereinafter set forth, further consideration of defendant's motion appears redundant and is now overruled.

Having reviewed the Court's finding as it relates to the plaintiff's motion for summary judgment, the parties were advised that as a finder of fact, the Court, on the strength of affidavits and other exhibits at hand, probably had sufficient factual data to adduce significant findings of fact and reach an ultimate decision. The parties agreed to this format, subject to the privilege to amend, polish, or otherwise "embellish" their respective data and positions. This proposal was acceptable, assuming then, that each would respond and comply within the week, and the matter would then be ready for final argument and submission. It developed that as each side pondered their respective position, and the Court surmises the strength or weaknesses of the other, each began to add and detract, significantly, and to the point that ultimately ?€” neither would agree to the other's contentions or proffers, each finding fault with the other's case, and at which time the Court resolved the impasse by scheduling the matter for full evidentiary hearing. In retrospect, save the learning process garnered in the course of those proceedings, a full evidentiary hearing probably should have been anticipated and scheduled from the outset, but which, ironically, has changed nothing as it relates to the Court's ultimate decision. It has only served to enhance it! As it relates to trial preparation, an orderly discovery calendar was set, the Court available for status conferences and a pretrial conference, at which time certain admissions, stipulations and ultimate orders were entered. In the final analysis, as the case commenced to trial, both sides were fully prepared, each at liberty to exhaust every facet of this most provocative issue.

In the course of three weeks' time, the very nature of the issues in controversy, as developed and expounded by both parties, exposed the trial court to the intricacies of varied scientific and technical discipline. In part, it has engaged the expertise and learning of outstanding and dedicated authorities, both private and public, both sides. For the Court, a layman in the truest sense, it has been a learning process throughout. It has required an appreciation and perception in such fields as the sensitivity of chromatography; infra-red spectro-photometry; animal studies of varied character and its relationship to man; biostatistics, i. e., risk assessment or extrapolation of data as it might affect the consuming public; biochemistry, including the course of estrogenic hormones and the protein receptor principle; epidemiology; toxicology, including molecular breakdown of chemicals involved; pharmacology; the functions of certain organs, i. e., livers, kidneys, and the significance thereof; and, of course, cancer, other effects and the implications of DES.

While these and others, as brought to the Court's attention, are complex subjects and probably to the experts only the "tip" was explored, thanks to their most candid and objective presentations, hopefully, the thrust of their respective presentations were perceived and retained.

The Court is frank to acknowledge, that while all of the foregoing appeared complicated and foreign to the Court's experience from the outset, a most serious problem in the perception of testimony and its relationship to the "real world," as so often addressed by claimant's counsel, was an appreciation of the metric system, i. e., conversion of grams, milligrams, nanograms, to something common to the Court's own experience. The record is replete with the Court's inquiry, i. e., request to convert into factors readily understood. In the scientific world the quantum of the remnants of the drug in question is measured against the weight of the beef in question in parts per billion (ppb). In this, one nanogram per gram equals one ppb. A grasp of the significance of such findings, in the interest of the Court's realistic perspective, has been exasperating. For example, understanding a resume of the following evidence:

The government, in part, contends that a finding of 6.25 ppb has been established in certain mice studies to affect a carcinogenic response. As this converts to the human's average consumption of beef, it represents 0.002 ppb or 0.002 mcg/kg (Claimant's ZZ). In the real world, this converts to a consumption of approximately 18,940 pounds of beef per day.

Such an example is only intended to express the complicated nature of this case, but, it is to say such an ultimate finding is also an example of the very kind of factual findings and conclusions as a consequence with which the Court has been required to deal. Simply stated, to adopt claimant's view ?€” a quest of a few grains in a massive field of sand. The Court concurs, the significance of this quantum being the ultimate issue.

In addition, the mass of exhibits, including considerable authoritative references, articles, not the least of which include reams of the Federal Register, have been read and digested. While only referenced in a cursory way, considerable portions of the "Congressional Record," tracing the history and intent of Congress as it relates to the act in question, has been reviewed. While not necessarily helpful, it has satisfied the Court's attempt to more fully appreciate the propriety of that which is at hand. To capsule:

The Federal Meat Inspection Act was enacted to provide additional legislation which in the view of Congress was "urgently needed for truly adequate protection of consumers, legitimate operators in the affected industries and others associated therewith.... The object of the proposed bill is to eliminate numerous opportunities now present to defraud consumers and endanger public health." Letter from the Department of Agriculture requesting the legislation, U.S.Code and Administrative News, p. 2209 (1967). Likewise 21 U.S.C. ? 602, Congressional Statements of Findings, states, "It is essential in the public interest that the health and welfare of consumers be protected." Seizure and condemnation is a means to protect the public from adulterated food. The Secretary is not required to bring a condemnation action when adulteration is only suspected; 21 U.S.C. ? 676(b) states, "Nothing in this chapter shall be construed as requiring a Secretary to report for prosecution or for the institution of libel or injunction proceedings, minor violations of this chapter whenever he believes that the public interest will be adequately served by a suitable written notice of warning."

Indeed, the rationale for the reduced governmental burden of proof in this seizure action is the purpose of suppression of a public wrong. See C. C. Co. v. United States, 147 F.2d 820, 824 (5th Cir. 1945).

Each witness, the substance of his testimony, the thrust of cross-examination, both sides, the witness's demeanor, his qualifications, experience, his ultimate reliability, believability, has been weighed and perceived. In the recent past, the entire transcript of approximately 4,000 pages has been reviewed by the Court. This review has been most helpful,...