Franklin Livestock, Inc. v. Boehringer Ingelheim Vetmedica, Inc.

251 F. Supp. 3d 962, 97 Fed. R. Serv. 3d 642, 2017 U.S. Dist. LEXIS 60803
CourtDistrict Court, E.D. North Carolina
DecidedApril 18, 2017
DocketNO. 5:15-CV-63-BO
StatusPublished
Cited by2 cases

This text of 251 F. Supp. 3d 962 (Franklin Livestock, Inc. v. Boehringer Ingelheim Vetmedica, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Franklin Livestock, Inc. v. Boehringer Ingelheim Vetmedica, Inc., 251 F. Supp. 3d 962, 97 Fed. R. Serv. 3d 642, 2017 U.S. Dist. LEXIS 60803 (E.D.N.C. 2017).

Opinion

ORDER

TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on defendant’s amended motion to dismiss the claims of Franklin Livestock, Inc. and for attorney’s fees and costs. [DE 90]. The matter has been fully briefed and is ripe for disposition. A hearing on the motion was held before the undersigned on January 12, 2017 in Elizabeth City, North Carolina. For the following reasons, defendant’s motion is granted in part and denied in part.

BACKGROUND

Plaintiffs are companies and individuals engaged in the cattle industry. Plaintiff Franklin Livestock’s operation in Franklin County, North Carolina bought and “preconditioned” cattle on behalf of customers located in other states until such customers requested shipment for “finishing.” One such set of customers were plaintiffs J and K Cattle, Kevin Van Beek, and Jay Leloux (“J and K Cattle”) who engaged the services of Franklin Livestock at various times between 2010 and 2013. During this time, Franklin Livestock purchased vaccines which were designed and manufactured by Boehringer Ingelheim Vetmedica, Inc (“defendant”). Plaintiffs jointly alleged in their complaint that, after ad[965]*965ministering these vaccines to their cattle, plaintiffs’ cattle suffered symptoms of en-dotoxemia, leading to death or severely reduced performance. [DE 1-1]. Plaintiffs alleged that they ultimately lost thousands of cattle and suffered diminished value of thousands of additional cattle, and the complaint essentially alleged that high levels of endotoxins within the vaccines manufactured by defendant caused these injuries. Id.

Plaintiffs filed this action in Franklin County Superior Court seeking relief due to breaches of express and implied warranties; ' negligent design and manufacture; failure to warn; failure to comply with federal laws governing the design, manufacture, and sale of animal vaccines; and unfair and deceptive acts or practices. [DE 1-1]. Defendant removed the case to this Court on the basis of federal question and diversity jurisdiction and filed its answer on February 20, 2015. [DE 1, 8]. In its answer defendant raised various affirmative defenses, including defenses asserting independent and superseding causes of damage as well. as sole or contributory negligence on the part of plaintiffs. [DE 8]. Defendant has asserted that plaintiffs did not experience death loss in the magnitude that they have alleged; that if plaintiffs did experience an excessive death loss, it was due to operational problems at Franklin Livestock (including, among other things, improper feed selection, vaccine selection, vaccine administration); and that if Franklin Livestock experienced an excessive death loss, it was due to an outbreak of respiratory disease caused by bacteria for which defendant’s vaccines are neither designed nor labeled to protect against (specifically Histophilus somni or mycoplasma bovis). Id.

On September 26, 2016, defendant was granted leave to amend its answer in order to raise additional affirmative defenses. [DE 86]. In moving to amend, defendant asserted that through discovery it uncovered evidence that plaintiffs Franklin Livestock defrauded plaintiffs J and K Cattle. [DE 53], Defendant alleged that when J and -K Cattle requested shipment of their cattle at various times during the relevant time period, Franklin Livestock was unable to produce all the cattle requested due to misconduct and informed J and K Cattle that its cattle had died. Id. Defendant alleged that the damages claimed by plaintiffs are due not to death loss, but rather to Franklin Livestock’s misrepresentations and wrongful billing practices. Id. As such, defendant amended its answer to raise additional defenses based on Franklin Livestock’s alleged intervening fraudulent acts .and the negligent acts and omissions of all the plaintiffs. [DE 88].

Then, on October 18, 2016, defendant filed the instant amended motion seeking dismissal of the claims of Franklin Livestock. [DE 90]. Defendant contends that Franklin Livestock has abused the discovery process by intentionally withholding information during discovery that exculpates defendants and by producing fabricated documents. Id. According to defendant, Franklin Livestock has only recently produced more than 15,000 pages of documents that should have been produced long ago (“withheld documents”) and additionally has disavowed the authenticity of more than 6,250 pages of documents that were previously produced (“disavowed documents”). Id. Defendant believes that, by disavowing previously produced documents and producing new documents, Franklin Livestock has revealed information that exculpates defendants and shows that Franklin Livestock defrauded the other plaintiffs in. this case. Id. Defendant argues that such violations of the discovery process warrant the severest of sanctions: dismissal of Franklin Livestock’s claims and monetary sanctions. Id.

[966]*966Specifically, defendant asserts that the disavowed documents were fabricated for purposes of this litigation and argues that the withheld documents are exculpatory. In support of these assertions, defendant first demonstrated that there are material differences between vaccination records in the disavowed documents and vaccination records which were withheld. [DE 91]. When the parties initially conducted discovery, Franklin Livestock produced documents that it represented were original, contemporaneous vaccination records. Id. After plaintiff recently disavowed these records and produced the actual vaccination records, defendant identified material differences between the sets of documents which it believes are intentional alterations. Id. Defendant argues that these alterations skewed the results of any statistical analysis of the records against defendant and in favor of Franklin Livestock, for example (1) by listing an animal as having received defendant’s vaccine and then died, when in fact that deceased animal never received, defendants vaccine; (2) by listing a deceased animal, as. having received only defendant’s vaccine when in fact they received both defendant’s and other vaccines before dying; (3) by listing a deceased animal as having received defendant’s vaccine when the actual records showed them never receiving any vaccine; (4) by listing animals who died as having received no vaccines when in fact they received vaccines made, by others; and (5) by sometimes excluding entirely from the records animals who received vaccines made by others. Id.

Defendant also provided examples of how the withheld -documents reveal instances of Franklin Livestock billing multiple customers, including co-plaintiff J and K Cattle, for the same groups of cattle. [DE 91]. According to defendant, this makes it difficult or impossible to determine what are the “missing” animals for which plaintiffs seek recovery against defendant. Id. Third, defendant asserts that the withheld documents demonstrate that the death loss at Franklin Livestock was less than what has been alleged in this lawsuit, and that Franklin Livestock overstated the death loss it experienced while using defendant’s products and understated the death loss that it experienced while using products made by third-parties. Id. Finally, defendant asserts that the withheld docutnents revealed that Franklin Livestock had a recognized Hisophilus somni bacteria (“H. somni”) outbreak that was not mentioned in the disavowed documents. Id.. None of defendant’s products are labeled or designed to protect cattle from H.

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251 F. Supp. 3d 962, 97 Fed. R. Serv. 3d 642, 2017 U.S. Dist. LEXIS 60803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-livestock-inc-v-boehringer-ingelheim-vetmedica-inc-nced-2017.