Reynolds v. S & D Foods, Inc.

162 F.R.D. 661, 1995 U.S. Dist. LEXIS 11475, 1995 WL 472764
CourtDistrict Court, D. Kansas
DecidedJuly 24, 1995
DocketNo. 91-1442-JTR
StatusPublished

This text of 162 F.R.D. 661 (Reynolds v. S & D Foods, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reynolds v. S & D Foods, Inc., 162 F.R.D. 661, 1995 U.S. Dist. LEXIS 11475, 1995 WL 472764 (D. Kan. 1995).

Opinion

ORDER

REID, United States Magistrate Judge.

This ease was tried to the court pursuant to 28 U.S.C. § 636(c). Following the trial, the parties have submitted their proposed findings of fact and conclusions of law. Pursuant to Fed.R.Civ.P. 52(a), the court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

Jurisdiction and Venue

1. For the purposes of determining jurisdiction, plaintiffs are residents and citizens of the States of Kansas, California, Massachusetts, Pennsylvania, and Florida.

2. Defendant was incorporated in Colorado and has its principal place of business in Colorado.

3. The matter in controversy, exclusive of interest and costs, exceeds the sum of $50,-000.

4. The transactions and events giving rise to this litigation arose in Kansas.

Consolidated Pet Foods, Inc.

5. At the Amarillo, Texas facility, Consolidated Pet Foods, Inc. (hereinafter “Consolidated”) produced its 4-D meat product.

6. Unlike other companies in the 4-D meat industry, Consolidated told its customers that, unlike other companies in the industry, it tested batches of the 4-D meat (J. Mencin depo. at 15-16; R. at 1115-1116).

7. Larry Green, who sold Consolidated 4-D meat in Abilene, represented to plaintiffs Susanne Reynolds and Harland Olson that Consolidated tested its meat to make sure that the salmonella level was below a level harmful for greyhounds. Mr. Green never represented that the meat was completely free of salmonella (R. at 505-06, 1059-1060, 1115-1117).

8. Consolidated made no representations about its 4-D meat product in writing, and nothing on the labels of the product misrepresented its contents.

9. Consolidated’s pet food product was marketed under the name BBB (Best Bet Brand).

10. Consolidated marketed BBB in Abilene, Kansas through a retail outlet known as The Greyhound Store.

11. Following the sale of Consolidated’s greyhound division in late 1988 to National By-Products, the latter continued to operate The Greyhound Store under the same name.

12. Consolidated’s BBB was sold as “farm meat” and “track meat.” Farm meat [663]*663was sold under a green label and track meat was sold under a black label.

13. Consolidated’s farm and track meat both came from 4-D meat, and both products were manufactured in Consolidated’s Amarillo facility.

4-D Meat

14. 4-D meat is an acronym for dead, dying (also downed), disabled, and diseased cattle. It is usually made from cattle which die in feedlots, during transportation, or in the field. Consolidated also used chilled meats in barrels purchased from a corporate supplier.

15. 4-D meat is widely, if not universally, used in the greyhound industry as the main component in the diet of racing greyhounds. The plaintiffs knew of no one in the greyhound industry that runs dogs that are not fed 4-D meat. 4-D meat is used because of the belief in the industry that dogs run better when fed 4-D meat (R. at 51-53, 1035-1040).

16. Because of the source of 4-D meat, salmonella is commonly found in 4-D meat; only by cooking the meat can salmonella be eliminated (R. at 233-235; def. exh. # 26; F. Love depo. at 30-31, 33; C. Greene depo. at 124-125).

17. Susanne Reynolds .recognized that there is a risk of salmonella by feeding her dogs 4-D meat (R. at 53). However, Ms. Reynolds and other greyhound owners feed 4-D meat to racing greyhounds despite the risk because dogs fed on 4r-D meat run faster (R. at 495^497). Ms. Reynolds knew that 4-D meat may contain salmonella, and testified that the 4-D meat containing salmonella is not defective so long as the salmonella is at a low level (R. at 495, 497).

18. Ms. Reynolds was told by Larry Green that the 4-D meat had been tested for bacteria and salmonella to make sure that they were at a safe level (R. at 104-106).

Quality Control

19. Dr. Fred Love, a veterinarian in Amarillo, Texas, believed that Consolidated operated a very clean and sanitary facility. They had a bacteriologist on duty who collected meat samples throughout the day and tested them for bacterial contamination. He was so impressed with Consolidated’s exemplary operation that he and his wife began buying meat there for their own dogs (R. at 34-35).

20. Consolidated tested its 4r-D meat product for moisture, fat, and protein levels, as well as for the presence and number of colonies of salmonella and other bacteria.

21. Julie Corbin, a lab technician at Consolidated during the relevant time period, could not verify that the meat from Consolidated’s plant did not contain harmful amounts of salmonella or other bacteria (Cor-bin depo. at 21). However, she was not aware of any meat that ever left the plant which she had questions about (Corbin depo. at 38).

Laurence “Larry” Green

22. Larry Green was the salesman for Consolidated who made contact with plaintiffs Reynolds and Olson when Consolidated began selling 4-D meat in Abilene. He is also the individual who allegedly told Ms. Reynolds and Mr. Olson that Consolidated was making a bad product and that Consolidated had received complaints about its 4-D meat product in other parts of the United States.

23. At the time Larry Green approached plaintiffs Reynolds and Olson on behalf of Consolidated, Mr. Reynolds and Mr. Olson had known Mr. Green for a number of years. Mr. Olson established a friendship with Mr. Green. Both Ms. Reynolds and Mr. Olson testified that they do not believe Mr. Green would knowingly sell a bad product to them.

Susanne J. Reynolds

24. At the time Susanne Reynolds began feeding Consolidated’s 4-D meat product in September 1988, she was an experienced greyhound owner, boarder, and trainer, having worked in the greyhound industry for approximately 10 years. Prior to entering [664]*664the greyhound industry, Ms. Reynolds operated a multi-breed AKC kennel.

25. In addition to her experience with canines, Ms. Reynolds has training as a nurse. Through her training as a nurse, Ms. Reynolds knew what Salmonella was, knew that it could cause illness in both humans and animals, and knew that it could be found in raw meat.

26. Ms. Reynolds feeds raw 4-D meat to greyhounds older than 4 months old, despite her knowledge that 4-D meat frequently contains Salmonella and that cooking the meat would kill the Salmonella.

27. In early 1988 when Larry Green stopped by Ms. Reynold’s greyhound farm to market Consolidated’s 4r-D meat, Ms. Reynolds was feeding a 4-D meat produced and sold by Hereford By-Products. She had been feeding Hereford’s 4-D meat off and on since 1985.

28. During Larry Green’s initial visit to Ms. Reynold’s greyhound farm in early 1988, he told Ms. Reynolds that Consolidated tested its 4-D meat product and that the meat was safe. However, he never represented to Susanne Reynolds that Consolidated’s 4-D meat was completely free of Salmonella..

29. Mr. Green left some free samples for Ms. Reynolds during his initial call on her farm in early 1988, and Ms.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Nunez v. Wilson
507 P.2d 329 (Supreme Court of Kansas, 1973)
Savina v. Sterling Drug, Inc.
795 P.2d 915 (Supreme Court of Kansas, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
162 F.R.D. 661, 1995 U.S. Dist. LEXIS 11475, 1995 WL 472764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reynolds-v-s-d-foods-inc-ksd-1995.