Master Recommends Denying Class Certification Motion in Ground Beef E. Coli Case
A federal magistrate in New York has recommended that the district court deny the class certification motion filed by plaintiffs who allege either personal or economic injury from the purchase of frozen ground beef products purportedly tainted with E. coli. Patton v. Topps Meat Co., No. 07-654 (W.D.N.Y., recommendation entered May 27, 2010). The defendants include the meat processor and a number of retailers, and the claims are based on a 2007 recall involving more than 20 million pounds of ground beef. Forty cases of E. coli infection in eight states were allegedly traced to the product. The plaintiffs sought to certify two nationwide classes of those who consumed the product and have personal injury claims and those who purchased the products subject to the recall and allege economic losses.
Because specific causation, that is, “whether the contaminated meat caused the personal injuries of the individual class members,” would require an individualized assessment of the evidence, the master found that the typicality requirement for class certification could not be met as to the personal injury class. According to the master, each plaintiff will have to prove that the meat caused his or her illness, and just because someone experienced diarrhea is insufficient to establish causation. The master also found that the proposed class members could not fairly and adequately protect the interests of the class because each “will be preoccupied with establishing their own individual claims to the detriment of the other class members. Because none of the proposed class representatives tested positive for E. coli, they will likely have to focus more of their efforts at establishing causation than other potential injury class members who may have tested positive for E. coli.”
The master disagreed with the plaintiffs that the defendants had insufficient assets or insurance to cover the claims of putative class members and thus, determined that they failed to satisfy their burden of establishing a limited fund. And the master disagreed with the plaintiffs that New York law would apply to their claims. According to the master, the argument that defendants should have been expected to be held liable under New York law, “ignores the expectations of the potential plaintiffs—who span 45 states—as to whether New York law would apply to their claims.” The master found that common questions of law and fact did not predominate.
As to certification of the economic injury class, the master noted a split in authority as to whether an out-of-court refund program is a method of adjudication under Federal Rule of Civil Procedure 23 and can be superior to a proposed consumer class. Following authority within the circuit, the master found that the refund program was superior. The parties will have until June 14, 2010, to file any objections to the master’s report and recommendation.
