IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

IN RE CONAGRA PEANUT

BUTTER PRODUCTS LIABILITY

LITIGATION

MDL DOCKET NO. 1845

1:07-md-1845-TWT

KRYSTINA BRUGH

Individually, et al.,

 Plaintiffs,

 v. CIVIL ACTION FILE

 NO. 1:08-CV-2932-TWT

CON AGRA FOODS INC.,

a Delaware Corporation,

 Defendant.

OPINION AND ORDER

This is a products liability action for injuries allegedly suffered from eating

Salmonella-contaminated peanut butter. 

I. Background

This action arose out of the distribution by ConAgra of peanut butter that was

contaminated by Salmonella bacteria. The contaminated peanut butter was

manufactured at the Defendant’s plant in Sylvester, Georgia. It is undisputed that

hundreds of people got sick after eating the contaminated peanut butter. On February

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14, 2007, the Food and Drug Administration issued a national warning advising

people not to eat from certain jars of ConAgra’s Peter Pan brand or Great Value brand

peanut butter due to a risk of bacteria contamination. At the same time, the FDA

announced a recall of the implicated peanut butter. The FDA specifically identified

the presence in the peanut butter of Salmonella bacteria.

K.B. was diagnosed at birth with dysplastic kidneys. She ate ConAgra peanut

butter approximately 8 times between the last week of January 2007 and February 3,

2007. After eating the peanut butter, she developed symptoms of diarrhea, vomiting,

nausea, fever and stomach cramps. This led to severe dehydration that K.B.’s

dysplastic kidneys could not handle. K.B. went into end-stage renal disease and

eventually underwent a kidney transplant. ConAgra has moved for summary

judgment, arguing that the Plaintiffs cannot prove that the peanut butter was defective

(that it was contaminated with Salmonella) and that K.B.’s injuries were proximately

caused by her consumption of the peanut butter. ConAgra has also moved to exclude

the expert opinions of Dr. Charles Stratton and Dr. Jose Oberholzer, who testify that

the peanut butter was contaminated with Salmonella and that it caused K.B.’s injuries.

II. Legal Standards

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A. Daubert Standard

Federal Rule of Evidence 702 governs the admission of expert opinion

testimony. Pursuant to that rule, before admitting expert testimony a court must

consider: (1) whether the expert is competent to testify regarding the matters he

intends to address; (2) whether the methodology used to reach his conclusions is

sufficiently reliable; and (3) whether the testimony is relevant, in that it assists the jury

to understand the evidence or determine a fact in issue. Fed. R. Evid. 702; Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Furthermore, “the

Court must find that [the expert] used a valid methodology based on reliable data to

reach his opinions.” Clarke v. Schofield, 632 F. Supp. 2d 1350, 1360 (M.D. Ga.

2009) (emphasis added). If the expert predicates his testimony on an assumption that

is belied by the evidence, the expert’s testimony is properly excluded. Ferguson v.

Bombardier Services Corp., 244 Fed Appx. 944, 949 (11th Cir. 2007). The party

offering the expert's testimony has the burden to prove it is admissible by a

preponderance of the evidence. Allison v. McGhan Medical Corp., 184 F.3d 1300,

1306 (11th Cir. 1999). 

B. Summary Judgment Standard

Summary judgment is appropriate only when the pleadings, depositions, and

affidavits submitted by the parties show that no genuine issue of material fact exists

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and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 

The court should view the evidence and any inferences that may be drawn in the light

most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59

(1970). The party seeking summary judgment must first identify grounds that show

the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 323-24 (1986). The burden then shifts to the nonmovant, who must go beyond

the pleadings and present affirmative evidence to show that a genuine issue of material

fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

III. Discussion

A. The Defendant’s Motion to Strike Dr. Stratton’s Affidavit

Dr. Charles Stratton’s affidavit is not untimely. Dr. Stratton was designated as

a global-issue expert by the Plaintiffs’ steering committee and the Plaintiffs’ Liaison

Counsel on behalf of all Plaintiffs in the MDL, on May 1, 2009. (Plaintiffs’ Notice

of Disclosure of Expert Witnesses, 1:07-md-1845, at Doc. 724.) The Plaintiffs were

not required to disclose Dr. Stratton as an expert offering opinions regarding the CDC

Case Definitions in advance of their response to the Defendant’s Motion for Summary

Judgment.

Dr. Stratton is qualified to offer expert testimony on CDC Case Definitions. Dr.

Stratton is a medical doctor with specialized training in infectious diseases and clinical

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microbiology. He is the Director of the Clinical Microbiology Laboratory at the

Vanderbilt University Hospital, and has been a clinical microbiologist for over thirty

years. (Stratton First Aff. ¶ 2.) 

This Court has previously held that CDC Case Definitions are a reliable

methodology for determining the presence of an infectious agent. (1:07-md-1845,

Doc. No. 2262, at 3.) This Court cited Cruz v. Secretary of Dep’t of Health & Human

Serv., No. 96-820V, 1998 WL 928418 (Fed. Cl. Dec. 21, 1998), and Graham v.

Playtex Products, Inc., 993 F. Supp. 127 (N.D.N.Y. 1998), in support of this holding. 

In Cruz, the court allowed expert testimony of a “probable case” of poliomyelitis

when there was a CDC definition of a “probable case” of poliomyelitis directly on

point. Cruz, 1998 WL 928418, at *5 (“The CDC defines a probable case of

poliomyelitis, for reporting purposes, as one meeting the clinical definition: ‘[a]cute

onset of a flaccid paralysis of one or more limbs with decreased or absent tendon

reflexes in the affected limbs, without other apparent cause, and without sensory or

cognitive loss.’”). In Graham, the court did not discredit expert testimony that stated

that the plaintiff satisfied the CDC definition for toxic shock syndrome. Graham, 993

F. Supp. at 132. In both cases, the expert testified that the plaintiff met the CDC case

definition that was established for that particular pathogen or illness. 

In this case, the CDC has designated a case definition for Salmonella serotype

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Tennessee emanating from ConAgra peanut butter. According to the CDC, “[a] case

was defined as infection with Salmonella Tennessee with a PFGE pattern matching

one of the three outbreak patterns in a person residing in the United States with

symptom onset on or after August 1, 2006 (or, if onset date unknown, Salmonella

Tennessee isolated on or after August 1, 2006).” (MMWR, at 522; Schnaffer Dep. at

238.) The CDC has elsewhere defined August 1, 2006, as the beginning of the

outbreak period. (Pls.’ Br. in Opp’n to Def.’s Mot. to Strike Aff. of Dr. Stratton, at

Ex. 3, at 5-6.) “Production dates [of the contaminated peanut butter] rang[e] from July

2006 to December 2006.” (MMWR, at 523.) The date marking the beginning of the

outbreak period is significant because the Plaintiffs’ peanut butter jar was

manufactured on August 5, 2005. The Court bears in mind that the CDC Case

Definitions are not legal tests, but merely guidelines to assist researchers. Dr. 

Stratton’s application of the CDC guidelines is an acceptable application of a reliable

methodology. 

Even so, the Court could exclude Dr. Stratton’s testimony if “there is simply

too great an analytical gap between the data and the opinion proffered.” General

Electric Co. v. Joiner, 522 U.S. 136, 146 (1997). Dr. Stratton relies upon his

education, training, and experience to conclude that none of the other possible causes

for K.B.’s illness would likely have caused the severe dehydration that she suffered

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and which lead to her end-stage renal disease. Given the well known difficulty in

diagnosing Salmonella infection, negative blood and urine cultures are not dispositive. 

Blood and urine cultures are often unreliable for diagnosing a Salmonella infection,

because those tests will only show a presence of Salmonella if the infection has spread

to the blood or bladder. The Defendant’s motion to exclude Dr. Stratton’s testimony

should be denied.

B. The Defendant’s Motion to Exclude Dr. Oberholzer’s Causation 

Opinion

Dr. Jose Oberholzer is the surgeon who performed K.B.’s kidney transplant. 

Dr. Oberholzer stated unequivocally in his deposition several times that he did not

make an “independent assessment” of whether K.B.’s gastrointestinal illness was

caused by Salmonella:

Q: Did you make an independent medical diagnosis as to the cause of

her gastritis?

A: No, and I had no reason to do that because when I saw her she was

on dialysis and in need of a kidney transplant and had a very clear

medical history.

Q: So you didn’t – as a physician you didn’t diagnose Krystina as

having gastroenteritis from a salmonella infection?

A: I diagnosed her with the consequences out of it, that she had acute

kidney failure on a chronic kidney disease and required a kidney

transplant.

Q: But you didn’t make the independent assessment as to whether her

gastritis was caused by salmonella or not?

A: There was no need for that. The diagnosis was made. It sounded

reasonable; it sounded likely. So for me, my role as a transplant

surgeon was to discuss with her her new life as a transplant patient

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that she will face.

....

Q: Who do you believe made the diagnosis of gastritis as a result of

salmonella bacteria?

A: As I remember and as I see from my document, she had been

hospitalized in Indiana, so I remember there was a document from

some hospital in Indiana. There was a document from a children

hospital, Hope, I think, in Christ Hospital from Advocate system;

and then also the discussion and documentation by Dr. Miller. So

there was a series of doctors who had seen Krystina and diagnosed

her with that.

....

Q: Will you agree that your team, all the doctors here at the

University of Illinois on the transplant team, nobody on the

transplant team made an independent diagnosis or assessment as

to what the cause of Krystina’s gastritis was?

....

A: No, because there was no reason for it. I have said that probably

11 or 12 times by now. By the time we saw Krystina she was in

kidney failure, on dialysis, in need of a transplant. So my role is

totally different. I’m a transplant surgeon.

(Oberholzer Dep. at 94-97.)

Later in his deposition, Dr. Oberholzer completely changed his testimony and

testified that he had in fact performed an independent assessment of K.B.’s illness:

Q: But again, you haven’t made an independent assessment or

medical diagnosis that her illness was –

A: Yes, I did. I did the history of this patient and I saw the patient

and asked the patient was happened; and, you know, I know it

sounds very unlikely in your job, but sometimes 2 and 2 actually

equals 4.

Q: Let me finish my question because I don’t –

A: I did an independent examination of the patient of which you have

documentation.

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(Oberholzer Dep. at 150.)

 Dr. Oberholzer now contends in an affidavit that he did make an independent

assessment of K.B. (Oberholzer Decl. ¶ 3.) “A district court may find an affidavit

which contradicts testimony on deposition a sham when the party merely contradicts

its prior testimony without giving any valid explanation.” Bryant v. U.S. Steel Corp.,

428 Fed. Appx. 895, 896 (11th Cir. 2011), quoting Van T. Junkins and Assocs. v. U.S.

Indus., 736 F.2d 656, 656 (11th Cir. 1984). “[P]arties cannot thwart the purposes of

Rule 56 by creating sham issues of fact with affidavits that contradict their prior

depositions.” Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162,

1168 (7th Cir. 1996); also see Adelman-Tremblay v. Jewel Cos., Inc., 859 F.2d 517,

521 (7th Cir. 1988) (“The purpose of summary judgment motions–to weed out

unfounded claims, specious denials, and sham defenses–is served by a rule that

prevents a party from creating issues of credibility by allowing one of its witnesses

to contradict his own prior testimony.”) (internal citations and quotations omitted). 

Even though Dr. Oberholzer changed his testimony in his deposition, his earlier

testimony that he did not perform an independent assessment of K.B. was so clear and

vigorous, repeated, and supported by reasoning, that the Court cannot determine that

the contradiction was the result of an honest discrepancy. See Bank of Illinois, 75

F.3d at 1169 n.10 (noting that the sham affidavit rule applies when the statements are

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inherently inconsistent and when the contradiction is not the result of an honest

discrepancy or newly discovered evidence). Where a witness affidavit unambiguously

contradicts prior deposition testimony, the affidavit should be disregarded unless the

witness provides a valid explanation. Bryant, 428 Fed. Appx. at 896-97. Neither of

the Plaintiffs’ counsel’s explanations–that it was his first deposition and that there was

a language barrier–are valid in the face of the type of clear, unambiguous and

repetitive statements here. Moreover, counsel’s argument is not evidence. Id. Dr.

Oberholzer himself simply states, “To the extent, if any, there is any uncertainty in my

deposition as to whether I made an independent diagnosis or assessment of K.B., I

now make clear that I did make an independent diagnosis and assessment of K.B.”

(Oberholzer Decl. ¶ 3.) Dr. Oberholzer’s statement is not an explanation at all, much

less a valid one. If Dr. Oberholzer did not perform an independent assessment of

K.B., his causation opinion that she had salmonellosis as a result of eating ConAgra

peanut butter is clearly unreliable. The Court will not consider Dr. Oberholzer’s

affidavit in ruling upon the Defendant’s Motion for Summary Judgment.

C. The Defendant’s Motion for Summary Judgment

“[U]nder the Indiana Strict Product Liability Act a plaintiff may use

circumstantial evidence to establish that a manufacturing defect existed only when the

plaintiff presents evidence by way of expert testimony, by way of negating other

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reasonably possible causes, or by way of some combination of the two.” Whitted v.

General Motors Corp., 58 F.3d 1200, 1209 (7th Cir. 1995). Yet, the evidence relied

upon to overcome summary judgment must be admissible evidence. Id. at 1204. For

the reasons set forth above, Dr. Stratton’s expert testimony on the cause of K.B.’s

illness is admissible under Rule 702. He is a highly qualified expert. He is not a

quack or a hired gun. There is a genuine issue of fact for trial in this case. 

IV. Conclusion

For the reasons set forth above, the Defendant’s Motion to Strike the Affidavit

of Dr. Charles Stratton [Doc. 47] is DENIED. The Defendant’s Motion to Exclude

the Causation Opinion of Dr. Jose Oberholzer [Doc. 58] is GRANTED. The

Defendant’s Motion for Summary Judgment [Doc. 30] is DENIED.

SO ORDERED, this 14 day of August, 2013.

/s/Thomas W. Thrash

THOMAS W. THRASH, JR.

United States District Judge

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