01/10/2022 - Expert Witness List Could Face 'Daubert' Hearings Before “Blue Bell” Listeriosis Trial

On Oct. 20, 2020, a federal Grand Jury released a criminal indictment, charging retired president of Blue Bell Creameries, Paul Kruse,with conspiracy and six counts of fraud. Responses to any Daubert challenges are due on Jan. 21, 2022.

Daubert challenges are pre-trial opportunities for lawyers to study the testimony before a judge of the opposing side’s experts. The expert’s methodology, reasoning and scientific validity are subject to challenge. Daubert hearings prevent unscientific testimony from being used to convict a person of a criminal offense.

The 2015 listeriosis outbreak led to the removal of all Blue Bell products from all of its production facilities including frozen yogurt, sherbet, ice cream, and other frozen food.
Ten people with listeriosis were associated with the outbreak from Kansas with 5, Oklahoma with 1, Arizona with 1, and Texas with 3 patients. The Kansas patients later died. A Texas grand jury charged the frozen food boss with an alleged scheme to cover up the company’s sales of Listeria-tainted ice cream in 2015.

Paul Kruse allegedly devised a plot to deceive some Blue Bell customers, including directing employees to remove potentially contaminated products from store freezers without indicating to store owners or potential customers for the true purpose of the removal.

Defense lawyers, Chris Flood of Houston and John Cline of San Francisco filed a motion informing the judge that the parties “are in discussion to narrow the breadth and scope of potential expert testimony.”

“The defense needs additional time to determine which experts are needed, and both parties would then need additional time to determine whether Daubert challenges are appropriate,” the defense team wrote.

The government’s prosecution team did not oppose the defense request. Last year they moved forward the exert witness date to December 14th. Judge Pittman then extended the deadline for Daubert motions to January 7th, 2022. Responses to those motions were declared for no later than January 21st 2022.

Blue Bell agreed to pay criminal penalties of $17.5 million and $2,1 million to resolve False Claims Act allegations regarding ice cream products manufactured under insanitary conditions and sold to federal facilities, including the military. The second largest penalty ever paid in regards to a food safety matter was paid by Blue Bell of the sum of $19.35 million (including forfeiture, civil settlement and fines).