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Eckrich v. Selected Meat Co.

decided: March 27, 1975.

PETER ECKRICH AND SONS, INC., PLAINTIFF-APPELLANT,
v.
THE SELECTED MEAT COMPANY, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 71 C 2876 Thomas R. McMillen, Judge.

Swygert and Cummings, Circuit Judges, and Wyzanski, Senior District Judge.*fn*

Author: Per Curiam

In March 1973, plaintiff, a meat processor with its principal place of business in Fort Wayne, Indiana, filed its second amended complaint, consisting of seven counts, against four corporate defendants.*fn1 One of the defendants, Waldock Packing Company, was subsequently dismissed on motion of plaintiff. The lawsuit was predicated on the delivery to plaintiff of allegedly rancid pork cheeks sold by defendant Selected Meat Company to defendant Beacon Food Products Corporation and, in turn, sold by Beacon through its agent, defendant Great Lakes Brokerage Company, to plaintiff. $226,782.51 in damages were sought because plaintiff assertedly had to destroy other meat with which the defective pork cheeks were mixed in processing luncheon meats and frankfurters at its plants in Fort Wayne, Indiana, Fremont, Ohio, and Kalamazoo, Michigan.

At the close of plaintiff's case, the court granted defendants' motions for a directed verdict. On appeal, plaintiff complains of evidentiary rulings of the trial court that "improperly excluded the guts of the plaintiff's case" (Plaintiff's Br. 18). We reverse.

Exclusion of Batching Records

Plaintiff sought to introduce batching records from its Fort Wayne, Indiana, Fremont, Ohio, and Kalamazoo, Michigan, plants to show that its Chicago preblend,*fn2 allegedly containing defendants' meat, was mixed into plaintiff's finished product at those three plants. As the trial judge noted, their absence from evidence would "short-circuit" plaintiff's case, for without them plaintiff could not show that its finished product had been contaminated by the incorporation of defendants' allegedly rancid pork cheeks.

These batching exhibits were excluded under the Business Records Act (28 U.S.C. ยง 1732) for lack of foundation. This was an over-narrow construction of the Act.

The records were identified by witness Walter E. Suever, corporate manager of technical standards and procedures for plaintiff in Fort Wayne at the time of the transactions in question. He testified that his department prepared these forms which were filled in by batching operators in the regular course of plaintiff's business. They were routinely kept as regular business records and were completed at batching time. Suever set up the procedure for maintaining those records and obtained them and kept them in his possession since September 1971. The district judge ruled that this was insufficient foundation under the Business Records Act. We disagree.

Suever's testimony was sufficient to attest to the authenticity of the records. As we held in United States v. Teague, 445 F.2d 114, 119 (7th Cir. 1971), the person who makes the records need not testify. The Act "was intended to eliminate the technical requirement of proving the authenticity of records and memoranda by the testimony of the maker." United States v. Olivo, 278 F.2d 415, 417 (3d Cir. 1960). In accord with the liberal interpretation required for this statute (Palmer v. Hoffman, 318 U.S. 109, 115, 87 L. Ed. 645, 63 S. Ct. 477), it is apparent that these records were made pursuant to established company procedures, so that adequate hallmarks of their authenticity are present. They should have been received in evidence.

If the batching records had been in evidence, defendants have not denied that the documentary results of the rancidity tests conducted by plaintiff should have been admitted, nor have they denied the admissibility of plaintiff's exhibits purportedly showing that pork cheeks emanating from defendants were mixed at plaintiff's Chicago Plant 3 to produce 2XL preblend on September 7, 8 and 9, 1971. Indeed with the tie-in shown by the batching records, defendants concede the relevancy of the rancidity and preblend records, so that their exclusion need not be discussed herein.

Exclusion of Plaintiff's Expert Witnesses

On the fourth day of the trial, the court sustained an objection to the testimony of plaintiff's expert, Professor Sinnhuber of Oregon State University. Similar rulings were made with respect to proffered testimony of George Nischan, an instructor at the United States Army Medical Division Veterinarian School at Fort Sheridan, Illinois, and of George E. Brissey, a Californian who had been in charge of quality assurance for Swift & Company Meat Packers. The reason for excluding their testimony was plaintiff's failure to comply with the May 17, 1973, pretrial order requiring counsel for the parties to file with the clerk ten days before the scheduled trial date a list of names and addresses of all expected witnesses. When the case was finally called for trial on October 1, 1973, none of the parties had filed a list of witnesses.

Defendants argue in this Court that "if the [district] court ruled correctly with regard to the exclusion of the experts' testimony for the reason that plaintiff failed to comply with the pretrial order, an independent reason exists for the direction of a verdict in defendants' favor at the close of plaintiff's evidence." (Appellee's brief at 5.) In order to establish causation, plaintiff was required to prove that the product which it received from defendants was tainted at the time that defendants delivered it to plaintiff's control. Plaintiff intended to prove that the meat was defective when it left defendants' control through expert testimony.*fn3 Since our review of the record confirms that there was no ...


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