Case Notes

The First U.S. Circuit Court of Appeals affirmed, rejecting the supplier's arguments that: 1) there was insufficient evidence its meat was contaminated and had been included in the packages purchased by plaintiffs; and 2) the trial court should not have admitted the videotaped deposition of the supplier's former expert witness testifying that the supplier was a “probable” source of the tainted beef. Regarding the deposition testimony, the trial court had previously denied the supplier's motion in limine to preclude the deposition's use at trial so long as defendant could establish it qualified as former testimony of an unavailable witness under Fed. R. Civ. P. 32(a)(4) and Fed. R. Evid. 804(b)(1). The court of appeals held the deposition testimony had been properly admitted at trial, not only because the supplier never objected to its introduction at any time after denial of its motion in limine, but because there was sufficient foundation for the expert's opinion. The court also found ample other evidence supporting the jury's conclusion that the E. coli came from the supplier's meat, including: 1) United States Department of Agriculture records concluding that the supplier's meat was in the packages the defendant shipped to the supermarket in question; 2) testimony of multiple experts who examined the supplier's internal records and reached the same conclusion; 3) circumstantial evidence that the same E. coli strain that sickened the plaintiffs had appeared in the supplier's meat in California; and 4) there were other positive E. coli tests at the supplier's facility on the same date as the shipment to the supermarket in question.

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Malfunctioning Yacht Engines

In Sauvageau v. Detroit Diesel Corp., 82 Mass. App. Ct. 1121 (Mass. App. Ct. Nov. 14, 2012), the plaintiff had purchased an ocean yacht in November 2002 from its original owner, who had taken delivery of the yacht in July 2001. The yacht was powered by two diesel engines manufactured by the defendant; the engines came with a two-year express warranty. In early 2003, the defendant circulated to the plaintiff and others a modification bulletin stating that it had located a potential defect with one of the engines' components, which it would replace free of charge. As instructed by the modification bulletin, the plaintiff contacted the defendant's authorized distributor to request an appointment to perform the repairs.

However, the repairs were never performed, and the component part in one of plaintiff's engines malfunctioned in August 2004, resulting in significant damage to that engine. The plaintiff sued the defendant and the distributor in Massachusetts Superior Court, asserting claims of breach of contract (based on the modification bulletin), breach of express warranty and violation of Mass. Gen. L. ch. 93A (the Massachusetts unfair and deceptive practices statute), and seeking to recover the costs of repairing and rebuilding the engines.

After the court granted the defendant summary judgment on the breach of warranty claim, finding it barred by the two-year term of the express warranty, the remaining claims proceeded to trial. A jury found only the distributor, not the defendant, liable for breach of contract, and the court ruled that the ch. 93A claim against the defendant also must fail, since the plaintiff could not succeed on the underlying breach of warranty and contract claims. Following the trial court's denial of the plaintiff's motion for judgment notwithstanding the verdict on the breach of contract claim, the plaintiff appealed.

The plaintiff first argued that his warranty claim was not time-barred, notwithstanding that the engine failure occurred more than two years after the tender of delivery to the original owner. The plaintiff argued that the warranty was not conditioned on “failure of the engine,” but rather on “any malfunction occurring during the warranty period,” and that the defendant had admitted plaintiff's engine was malfunctioning by circulating the modification bulletin in early 2003. Because nothing in the summary judgment record suggested the plaintiff's particular yacht was malfunctioning at that time, however, the Massachusetts Appeals Court affirmed summary judgment on the warranty claim.

The court also affirmed the judgment for the defendant on the breach of contract and ch. 93A claims. With respect to the contract claim, the court held that the jury could have reasonably found that only the distributor, not the defendant, entered into and breached a contract with the plaintiff to repair the engine. With respect to the ch. 93A claim, the court held that a plaintiff cannot prevail on a ch. 93A claim when he cannot prevail on the individual underlying claims ' here, the contract and warranty claims. Thus the trial court's dismissal of the ch. 93A claim was appropriate. ' David R. Geiger, Foley Hoag LLP

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Tainted Meat

In Long v. Fairbank Reconstruction Corp., 2012 WL 5871043 (1st Cir. Nov. 21, 2012), 32 people in the northeastern United States were sickened by an outbreak of E. coli that was traced to the defendant's meat-processing facility in Ashville, NY. Two of the people infected, both of whom had purchased packages of ground beef from a supermarket in Maine, sued the defendant in the United States District Court for the District of Maine. The defendant then filed a third-party complaint against the slaughtering and processing company that had allegedly supplied the tainted beef.

After the defendant settled with the plaintiffs, the third-party indemnification claims proceeded to trial, focusing on the “traceback” analyses that led the defendant's experts to conclude the tainted meat came from the third-party defendant's shipments rather than another supplier's. The jury returned a verdict for the defendant; the district court denied the supplier's post-trial motions for relief and the supplier appealed.

The First U.S. Circuit Court of Appeals affirmed, rejecting the supplier's arguments that: 1) there was insufficient evidence its meat was contaminated and had been included in the packages purchased by plaintiffs; and 2) the trial court should not have admitted the videotaped deposition of the supplier's former expert witness testifying that the supplier was a “probable” source of the tainted beef. Regarding the deposition testimony, the trial court had previously denied the supplier's motion in limine to preclude the deposition's use at trial so long as defendant could establish it qualified as former testimony of an unavailable witness under Fed. R. Civ. P. 32(a)(4) and Fed. R. Evid. 804(b)(1). The court of appeals held the deposition testimony had been properly admitted at trial, not only because the supplier never objected to its introduction at any time after denial of its motion in limine, but because there was sufficient foundation for the expert's opinion. The court also found ample other evidence supporting the jury's conclusion that the E. coli came from the supplier's meat, including: 1) United States Department of Agriculture records concluding that the supplier's meat was in the packages the defendant shipped to the supermarket in question; 2) testimony of multiple experts who examined the supplier's internal records and reached the same conclusion; 3) circumstantial evidence that the same E. coli strain that sickened the plaintiffs had appeared in the supplier's meat in California; and 4) there were other positive E. coli tests at the supplier's facility on the same date as the shipment to the supermarket in question.

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Malfunctioning Yacht Engines

In Sauvageau v. Detroit Diesel Corp. , 82 Mass. App. Ct. 1121 (Mass. App. Ct. Nov. 14, 2012), the plaintiff had purchased an ocean yacht in November 2002 from its original owner, who had taken delivery of the yacht in July 2001. The yacht was powered by two diesel engines manufactured by the defendant; the engines came with a two-year express warranty. In early 2003, the defendant circulated to the plaintiff and others a modification bulletin stating that it had located a potential defect with one of the engines' components, which it would replace free of charge. As instructed by the modification bulletin, the plaintiff contacted the defendant's authorized distributor to request an appointment to perform the repairs.

However, the repairs were never performed, and the component part in one of plaintiff's engines malfunctioned in August 2004, resulting in significant damage to that engine. The plaintiff sued the defendant and the distributor in Massachusetts Superior Court, asserting claims of breach of contract (based on the modification bulletin), breach of express warranty and violation of Mass. Gen. L. ch. 93A (the Massachusetts unfair and deceptive practices statute), and seeking to recover the costs of repairing and rebuilding the engines.

After the court granted the defendant summary judgment on the breach of warranty claim, finding it barred by the two-year term of the express warranty, the remaining claims proceeded to trial. A jury found only the distributor, not the defendant, liable for breach of contract, and the court ruled that the ch. 93A claim against the defendant also must fail, since the plaintiff could not succeed on the underlying breach of warranty and contract claims. Following the trial court's denial of the plaintiff's motion for judgment notwithstanding the verdict on the breach of contract claim, the plaintiff appealed.

The plaintiff first argued that his warranty claim was not time-barred, notwithstanding that the engine failure occurred more than two years after the tender of delivery to the original owner. The plaintiff argued that the warranty was not conditioned on “failure of the engine,” but rather on “any malfunction occurring during the warranty period,” and that the defendant had admitted plaintiff's engine was malfunctioning by circulating the modification bulletin in early 2003. Because nothing in the summary judgment record suggested the plaintiff's particular yacht was malfunctioning at that time, however, the Massachusetts Appeals Court affirmed summary judgment on the warranty claim.

The court also affirmed the judgment for the defendant on the breach of contract and ch. 93A claims. With respect to the contract claim, the court held that the jury could have reasonably found that only the distributor, not the defendant, entered into and breached a contract with the plaintiff to repair the engine. With respect to the ch. 93A claim, the court held that a plaintiff cannot prevail on a ch. 93A claim when he cannot prevail on the individual underlying claims ' here, the contract and warranty claims. Thus the trial court's dismissal of the ch. 93A claim was appropriate. ' David R. Geiger, Foley Hoag LLP

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