This case involves a breach of contract claim and a negligence claim regarding Stahlbush’s sale of black raspberries to Bama. Bama principally manufactures food products for the quick service restaurant industry. The dispute was over whether Stahlbush berries used by Bama in pies it produced were contaminated with stones.
Plaintiff filed a motion in limine to exclude certain opinions of Defendant’s experts, Dr. Siobhan Reilly and Mr. Gregory Gadawski.
Siobhan Reilly tested 10 boxes of berries and 61 boxes of fruit pies “to determine the presence of foreign materials in the product.” Defendant sought to introduce the results of Reilly’s testing. Plaintiff argued that Reilly’s opinions should be excluded because the product that she tested was not randomly sampled or a scientifically representative sample of the products at issue. Defendant argued, in rebuttal, that Reilly did not conclude that no rocks could have been present in Bama’s pies; instead, Reilly would testify that “some of the supposedly contaminated pies may have contained, not rocks, but organic matter common to blackberries.”
Plaintiff also argued that there is “no credible evidence” that it should have ceased producing pies on March 6, 2017 and accordingly, any opinion of Gadawski calculating Plaintiff’s damages based upon the assumption that it should have ceased production on that date is purely speculative and not based in evidence. Defendant argued that Gadawski’s opinions, even if hypothetical, are grounded in the facts and issues in this case and entirely permissible.
Food Science Expert Witness
Dr. Siobhan Reilly has over 25 years of experience in industrial food safety, food microbiology, and probiotic research. Reilly earned her Ph.D. in Food Science and Microbiology from Oklahoma State University. She is a member of the International Association of Food Protection, the Institute of Food Technologists, and the Pet Food Institute.
Accounting Expert Witness
Gregory A. Gadawski, CPA/ABV, CVA, CFE, CIRA is a member of the Oregon Society of Certified Public Accountants (OSCPA), the American Institute of Certified Public Accountants (AICPA), the National Association of Certified Valuation Analysts (NACVA), the Association of Certified Fraud Examiners (ACFE), and the Association of Insolvency and Restructuring Advisors (AIRA). He has served as an expert witness/consultant in a variety of complex litigation matters including breach of contract, business valuation, fraud, alter ego, lost profits, marital dissolution, personal injury, wrongful death, intellectual property infringement, fraudulent conveyance, solvency, and others.
Discussion by the Court
Reilly will not be permitted to testify regarding the condition of any berries or pies that she did not personally test
The Court was not persuaded by Defendant’s arguments that Reilly’s testing need not be of a random, representative sample. In addition, it was unclear to the Court whether Defendant’s reference to “supposedly contaminated pies” referred to the pies that Reilly tested or to the pies that caused Bama to cease production and file suit. Consequently, if Reilly sought only to testify as to the condition of the berries and pies tested (and which are not the subject of the suit), then it would seem her testimony is of limited relevance.
Furthermore, Defendant failed to demonstrate that Reilly tested a random, representative sample of product. From Reilly’s deposition testimony, it did not appear that any kind of methodology was employed to obtain a random, representative sample.
Specifically, Reilly testified that there were “hundreds, for sure, maybe even thousands” of boxes of berries in cold storage. Yet, without any apparent selection criteria, she took only 10 boxes of berries for testing. It was further established that the 10 boxes of berries were all drawn from two of eight lots of berries, and there was confusion on Dr. Reilly’s part regarding the significance of the lot numbers. Although she testified that her selection was “random” in that there was “no design to how the population was presented,” she also admitted there was “no opportunity to position the population and randomize it so that I could strategically pull a random sample.”
Ultimately, Reilly’s testimony and report, and the fact that only berries from two of eight lots were examined, led the Court to believe that no efforts at all were made to obtain a random, representative sample and that, instead, the product was taken in a haphazard manner.
Gadawski’s proposed testimony is admissible
Plaintiff argues that Gadawski’s testimony is hypothetical and not based in fact.
Firstly, there is nothing improper about an expert presenting opinions or testimony based upon hypotheticals, and Plaintiff has cited no authority to the Court suggesting otherwise. Plaintiff’s objection that there is no factual basis for the challenged opinion is similarly unavailing — the factual basis appears to be that this is when Plaintiff first learned that there may have been an issue with the shipment of berries. Whether a jury will credit this testimony or draw the conclusions advocated by Defendant is up to the jury, not the Court.
Held
The Court partly granted and partly denied the Plaintiff’s motion in limine to exclude portions of the expert reports of Siobhan Reilly and Gregory A. Gadawski.
Key Takeaway:
Though Reilly stated that it was not possible to “position the population and randomize it” so that she could pull a random sample, neither she nor Defendant explains why this is so. Defendant failed to demonstrate that Reilly tested a sufficiently random, representative sample and, accordingly, she will be precluded from offering any opinion as to any product that she did not personally test.
Case Details:
| Case Caption: | Bama Companies, Inc., The V. Stahlbush Island Farms, Inc. |
| Docket Number: | 4:18cv45 |
| Court Name: | United States District Court, Oklahoma Northern |
| Order Date: | September 29, 2025 |
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