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TASA ID: 646

Case #1: SOMETIMES SEVERAL WORDS ARE WORTH A THOUSAND PICTURES…

 

I was hired through TASA to assist the defendant company against the claim by the plaintiff that the defendant’s action had caused him (his farm) to lose a customer representing nearly 80% of his annual business. At issue was the fact that the plaintiff’s crop had lost its post-harvest shelf life and; therefore, had become unsuitable for distribution.

Was the defendant to blame or was there another responsible party?

My understanding of the case came about as the result of a sizable packet of information supplied by the defendant’s attorney along with a personal visit to the plaintiff’s farm.

It was a single entry on the defendant’s several year old schedule F federal tax return that gave me a clue. That clue led to a theory. My theory necessitated a key word search conducted by a technical information service (Internet search capability was not yet robust enough). 

As the result of that key word search, I came upon a poster presentation made at a horticultural science conference.  Research summarized in this presentation seemed to conclusively rule out any action by the defendant while strongly implicating an action (a product that had been used by the plaintiff) that caused the loss of the crop’s shelf life. A telephone conversation with the senior author of the poster presentation confirmed my understanding of the true cause of loss of shelf life. 

My final report to defendant’s attorney included the poster presentation, contact information for its senior author, and why I believe I had found the “smoking gun.” 

Had the plaintiff’s income tax information not been included in the packet of information sent to me for review, or if I had chosen not to peruse it, I most likely would have been far less likely to uncover the actual cause of the plaintiff’s crop malfunction. 

And yes, sometimes a word or two can be worth a thousand pictures!

Case #2: SOMETIMES REVERTING TO THE PRINTED WORD IS PREFERABLE

I was hired through TASA to assist the plaintiff company against the defendant company. At issue was whether or not the defendant had known that its product would cause non-target plant injury at any time before it released its product for commercial sale.

My review of discovery information, as provided by the defendant to plaintiff attorneys, consisted of a 500 gb hard drive containing field research studies along with various other information. The information was provided in what I considered to be a much disorganized fashion.

I decided my review of this information had to key in on two issues: (1) were there any field research studies indicating that the subject product, while in development, had caused non-target plant injury in field studies? (2) The identity of defendant company employee responsible for the collection and evaluation of all data developed on possible non-target plant injury.

Rather than view provided information on a computer screen I found it preferable to print out all information and then organize into “stacks” of like content. 

My specific information goals were achieved; several field studies did indeed indicate non-target plant injury and I was able to identify the defendant employee responsible for non-target plant injury issues. Additionally there was a meeting convened by the non-target plant injury employee; a time and place identified but no meeting specifics given.

 

Case #3: SOMETIMES A PICTURE IS WORTH A THOUSAND WORDS!

I was hired through TASA to assist the plaintiff farmer against the defendant company having provided a product used by the plaintiff. At issue was the plaintiff’s contention that the defendant’s product had not performed as advertised, thereby causing the plaintiff a substantial loss of yield.
As the product was a living organism, its titer could be adversely impacted if maintained at either too low or too high a temperature. 

The product was manufactured outside the US and brought in by an ocean going shipping container to be offloaded at a US port. The container containing the product was loaded directly onto a common carrier and delivered to the defendant’s company located in the Midwest. At the defendant’s facility, the product was relabeled and placed on pallets (each pallet containing multiple product containers). Pallets of product containers would be eventually shipped to distributors via common carrier; distributors warehousing the product until purchased by local farmers.  

At issue was whether or not during the product’s life from being manufactured (grown) in a foreign country to being purchased by the plaintiff, was the product titer lowered to an unacceptable level due to exposure to an improper temperature?

Often, when information meets my review the actual event (in this case loss of yield) is several years old. In this case, much of the most relevant background information dealing with actual crop condition was presented as photos.

One of the photos viewed was of a field of the crop showing a distinct area of anemic growth that would eventually lead to a much reduced (over the non-anemic areas) yield. On either side of the anemic growth area the plants appeared normal and would eventually produce what was considered a normal yield. 

In my discussion with the plaintiff farmer, he maintained that the anemic area corresponded with a loading of an unopened container of the defendant’s product and its use at the time of planting. There were also other anemic like areas found throughout other planted fields.

So what was causing this good crop/poor crop observation? One possibility was that individual containers of defendant’s product varied in potency (titer). How could this be?  

One possibility was that at some time during the product shipment process, while multiple product containers were loaded on pallets, that the containers on the outside of pallet had experienced an adverse (most likely low) temperature. Product containers more interior in the pallet would have been somewhat protected from any temperature extreme. 

Following this theory, when the farmer picked up product from his local distributor, it would be the luck of the draw as to whether or not he purchased product containers that had been located on the outside or in the interior of the shipping pallets.

Another issue became when and to what extent titer analysis (QA) was performed on the product from the time it left the foreign manufacturing operation, upon arrival at a US port, upon arrival at the defendant facility, and finally before being shipped to distributors. 

Once the pallets of QA approved product departed the defendant’s facility, was it possible that shipment via common carrier (assumed on an LTL basis) might have been exposed to an unusually low temperature in transit? Could part of the transit process have inadvertently been via a low temperature refrigerated trailer? 

There are temperature recording devices that are used when shipping temperature sensitive products. Were such devices used in this instance?

Would it be possible to go back through bill(s) of lading and other records to determine whether or not the defendant product had been exposed to an inappropriate temperature at some time between its leaving the defendant facility and arriving at the plaintiff farmer’s distributor?

And yes, sometimes a picture can be worth a thousand words!

NOTE: I hope I have cleared up the issue as to what happened to the ocean going container when it was offloaded at a US port. Defendant product was not transferred to a standard tractor/trailer but remained in the container and placed on a truck specially designed to carry ocean going containers. The ocean going container was unloaded at the defendant’s facility. 


These articles discuss issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA. Contact marketing@tasanet.com for any questions.





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