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From Products Liability Law Daily, May 16, 2013

Pet Owner’s Challenge to Court Evidentiary Orders in Contaminated Pet Food Case Denied

By Pamela C. Maloney, J.D.

A pet food company’s request that the U.S. Supreme Court review a number of evidentiary rulings—including a court-sanctioned destruction of evidence—upheld by the Washington Supreme Court of a products liability action brought by a pet owner to recover for the death of his cat allegedly caused by contaminated food was denied (Earl v. Menu Foods Income Fund, Inc., May 13, 2013). According to the pet owner, the evidentiary rulings violated his due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution.

Background. Donald Earl’s six-year-old cat died of a sudden and inexplicable onset of kidney failure after eating a "loaf" or "cake-style" canned cat food manufactured by Menu Foods and sold by The Kroger Company under its "Pet Pride" brand name. The pet food, which Earl had tested following a recall of the manufacturer’s "cuts and gravy" style canned pet food, came back positive for acetaminophen and cyanuric acid, both substances known to be toxic to cats. The pet food tested by Earl was the subject of a U.S. Food and Drugs Administration investigation of which the manufacturer was aware. Earl filed a product liability action against both companies and challenged a number of evidentiary rulings made by a Washington trial court (and upheld by a Washington appellate court) in granting the manufacturer’s motion for summary judgment. Among these rulings was the appellate court’s finding that the trial court did not commit reversible error in granting the manufacturer’s request to be allowed to destroy all "loaf/cake" style pet food that had been returned to it by the retailer. The decision of the appeals court remains standing.

Questions presented. In his petition for certiorari, Earl had asked the high court to consider the following questions:

  1. Whether a court had a legal authority to authorize the destruction of evidence when destroying such evidence would otherwise be a criminal act under both federal and state laws?
  2. Whether the court, in ordering Earl to pay punitive sanctions of $4,500 to the manufacturer to cover its alleged costs of opposing Earl’s motion to have the destruction order reversed, violate Earl’s due process rights under the Fifth and Fourteen Amendments by not making any findings of fact or conclusions of law as to the legality of the destruction of evidence order or on Earl’s motion challenging that order?
  3. Whether an expert opinion shifted the burden of proof to a non-moving party on summary judgment and did the granting of summary judgment on the weight of an expert’s opinions violate a litigant’s due process and jury trial rights under the Fifth, Seventh, and Fourteenth Amendments?
  4. Do litigants have a due process right under the Fifth and Fourteen Amendments to confront witnesses by way of deposition before summary judgment may be entered against them?
  5. When a declarant’s expert is not available for cross examination on summary judgment, may the party opposing summary judgment present statements from learned treatises which would be admissible at trial, and does barring a litigant from presenting such evidence violate the litigant’s due process and jury trial rights under the Fifth, Seventh, and Fourteenth Amendments?
  6. Did the trial court violate Earl’s due process and jury trial rights under the Fifth, Seventh, and Fourteenth Amendments by settling disputed questions of fact relating to the measure and amount of damages on summary judgment?

The case number is: 12-1083.

Attorneys: Charles Willmes (Merrick, Hofstedt & Lindsey) for The Kroger Company; Stellman Keehnel (DLA Piper) for Menu Foods Income Fund.

Companies: Menu Foods Income Fund, Inc.; The Kroger Company

MainStory: TopStory EvidentiaryNews DamagesNews FoodBeveragesNews

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