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BLOMMER CHOCOLATE CO. v. BONGARDS CRMERIES

June 28, 1985

BLOMMER CHOCOLATE COMPANY, EMPLOYERS INSURANCE OF WAUSAU AND OLD REPUBLIC INSURANCE COMPANY, PLAINTIFFS,
v.
BONGARDS CREAMERIES, INC., AND J.M. SWANK COMPANY, INC., DEFENDANTS. J.M. SWANK COMPANY, INC., THIRD PARTY PLAINTIFF, V. PACEMAKER, LTD., THIRD PARTY DEFENDANT.



The opinion of the court was delivered by: Moran, District Judge.

MEMORANDUM AND ORDER

INTRODUCTION

This case stems from the salmonella contamination of several hundred thousand pounds of plaintiff's chocolate products in early 1982. When ingested by humans salmonella bacteria can cause salmonellosis, commonly known as food poisoning. Salmonellosis on occasion can be fatal.

Blommer's suit has spawned a third party complaint by Swank against Pacemaker, Ltd. Swank ordered the whey from Pacemaker on Blommer's behalf. Pacemaker in turn arranged to have Bongards prepare the whey for Swank, for delivery to Blommer.*fn3 Swank has also filed a cross-claim against Bongards. Before the court are Blommer's motion for partial summary judgment against Swank, Bongards' motions to dismiss Blommer's complaint and Swank's cross-claim, and Pacemaker's motion to dismiss Swank's third party complaint.

FACTS

Linda Wolin, Blommer's purchasing agent, was responsible for purchasing the dry whey powder used by Blommer as an ingredient in its chocolate coatings. During 1980 and 1981 Blommer regularly purchased whey from Swank, a food broker. According to Wolin, in ordering from Swank she stressed that the whey powder supplied Blommer had to be free of salmonella. There is apparently no safe level of salmonella contamination in products destined for human consumption.

In the summer of 1981, Wolin contacted Randy Hill, a Swank employee with whom she had had regular dealings, to arrange a large order of dry whey powder. According to Wolin, Hill recommended Bongards as a supplier of whey powder and assured Wolin that the Bongards whey would meet Blommer's quality standards. The August 11, 1982 purchase order associated with their discussion specified that the whey would be "extra grade," "guaranteed salmonella negative," and "tested salmonella negative before shipment to Blommer." The order also stated that "salmonella statements are to accompany invoices or be written on the invoices."

It is clear from the record that "extra grade" whey denotes whey of the highest quality that is salmonella-free and fit for human consumption. Joseph Blommer, who is in charge of Blommer's Chicago facility, testified to this effect. Larry Pacha, Swank's president, recognized this fact, as did two Bongards officials, Raymond Henchen and Jack Budhan. Neither defendant has submitted any evidence that "extra grade" whey was not understood in the trade as being free of salmonella.

Having accepted Blommer's order, Swank contracted with Pacemaker for the requisite amount of extra grade whey. Pacemaker in turn arranged by phone with Bongards for the preparation of the whey. According to Jack Budhan, who has been Bongards' general manager since 1938, most of Bongards' customers are food processing and manufacturing concerns. Bongards, however, had no direct dealing with either Swank or Blommer, at least not before the whey was ready for delivery. Further, Bongards had no specific knowledge that the whey prepared for Pacemaker was destined for use by Blommer in manufacturing chocolate coatings.

According to Damien Gabis, executive vice-president of Silliker Laboratories, Inc., which acts as a consultant to Blommer on matters pertaining to the detection and control of salmonella, there are two sources of salmonella contamination at a food manufacturing plant like Blommer's. First, salmonella may occur in the raw ingredients; second, salmonella may exist in the processing environment and infiltrate the food products during their preparation.

Between 1967 and early 1982, Silliker had performed several thousand tests of Blommer's raw ingredients, processing environment and finished products. Prior to the contamination at issue here, Silliker never found salmonella in either a finished product or in the processing environment. Well before 1982 Silliker did find salmonella in one dry milk sample. Salmonella also was occasionally found in the dust of raw cocoa beans. Salmonella in cocoa beans is not unexpected and Blommer isolated the beans before roasting them at a temperature high enough to kill the salmonella bacteria.

Silliker regularly tested the whey received by Blommer. Its test of the whey received by Blommer on January 13, 1982 revealed no salmonella contamination. Blommer used all of the January 13, 1982 shipment to manufacture chocolate coatings between February 5, 1982 and February 15, 1982. Silliker also tested the February 2, 1982 shipment soon after it was received and found no salmonella. Blommer used a portion of this shipment before mid-February.

On or about February 13, 1982, Silliker found salmonella in several finished product samples from Blommer. Almost simultaneously one of Blommer's customers found salmonella in a recently delivered shipment of Blommer's chocolate compound. Further tests of Blommer's finished products determined that only those products which contained Bongards' whey were contaminated. As a result of the contamination, Blommer was forced to recall its chocolate coatings, ...


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