Federal Judge Robert Pitman’s recent scheduling order for a jury trial of Blue Bell Creameries’ Paul Kruse on charges of conspiracy and fraud beginning Jan. 11 is instead likely to be stretched out until next fall.

Kruse, 66, is the retired president of Blue Bell Creameries. His defense attorneys, Chris Flood and John D. Cline want the judge to delay the start of any trial to the fall of 2021, and government attorneys are going along with the delay request. The charges are related to a deadly Listeria outbreak traced to Blue Bell ice cream.

Flood and Cline have asked the judge to amend the scheduling order. They’ve already asked Pitman to dismiss the entire 7-count grand jury indictment because the statute of limitations has expired on each charge. Department of Justice (DOJ) attorneys will offer their first written arguments against dismissal next week.

Flood and Cline say “if the court is inclined to hear oral argument on the motion to dismiss,” that hearing should be set “well in advance of any other deadlines. . .”  They also want the court to extend the deadline for filing other pretrial motions until May 2021.

Flood and Cline cite the “legal issues of the first impression in Kruse’s pending motion to dismiss, the voluminous and ongoing discovery, the need to retain experts, the need to potentially litigate the scope of their testimony, and the complexity of the facts as considerations.  

Government attorneys assigned to the case reportedly do not oppose the more lengthy schedule the defense attorneys are suggesting.

“The government initially sought to charge this case by information filed May 1, 2020. Kruse moved to dismiss the information for lack of subject-matter jurisdiction; the government did not oppose the motion; and the court granted it on July 15, 2020. While the information was pending, the government provided in electronic form hundreds of thousands of pages of discovery.” 

They say the defense had begun the expensive process of uploading those documents to a database when the information was dismissed. It paused that effort until it became clear whether the case could be resolved and whether an indictment would be returned. 

The grand jury returned the indictment on October 20, 2020. The defense promptly filed its motion to dismiss based on the running of the statute of limitations. The government’s opposition is due Nov. 23, and the defense expects to file its reply in early December. 

On Nov. 2 the defense served a comprehensive discovery request on the government. “We understand the government is in the process of gathering and producing responsive documents.” In the meantime, the defense has resumed uploading and reviewing the documents the government previously produced,” it said.

“If the charges, in this case, survive the pending motion to dismiss, the trial will likely involve multiple experts on both sides,” the defense team continued.  “The defense is working on locating and retaining experts.’

Pretrial motions are currently due Nov. 25. The Court’s Scheduling Order sets a hearing on pretrial motions for Dec. 30 and sets trial for Jan. 11, 2021. In light of the circumstances outlined above, the defense is asking that the schedule be amended. 

“First, the defense suggests that if the court is inclined to hear oral argument on the motion to dismiss, the hearing be set before any other dates,” the motion to amend the scheduling order says.,  “That motion, if successful, would end the case pending any potential appeal and could eliminate the need for further proceedings. The motion will be fully briefed by early to mid-December and both sides could be prepared and available for a hearing in early January, after the holidays, if the court deems oral argument necessary.”

“Second,” it adds, “the hundreds of thousands of pages of discovery will take substantial time to review. That review may reveal grounds for additional pretrial motions, including potential motions to suppress and discovery motions. “Accordingly, we suggest that the pretrial motions deadline be set in May 2021.” 

“Third, the volume of discovery, the need to retain experts, and, potentially, to conduct Daubert litigation, and the complexity of the facts suggest that a trial date in January is unrealistic.” They thus ask that the court set a firm trial date in fall 2021. 

The defense team is also asking the court to amend the current pretrial schedule by: 

(1) setting a hearing on the pending motion to dismiss for January 2021 if oral argument is deemed necessary; 

2) setting a May 2021 deadline for other pretrial motions; and 

(3) setting a firm trial date in fall 2021. The defense agrees that all-time between now and a fall 2021 trial date should be excluded under the Speedy Trial Act. 

Kruse is a resident of Brenham, TX, where Blue Bell Creameries is headquartered. It’s about 90 miles east of Austin.

The Blue Bell company pleaded guilty in a related case in May to two counts of distributing adulterated food products in violation of the Federal Food, Drug, and Cosmetic Act. It agreed to pay criminal penalties totaling $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 total $19.35 million in fines, forfeiture, and civil settlement payments was the second-largest amount ever paid in resolution of a food safety matter.

At issue in the criminal charges is Kruse’s role in the 2015 listeria outbreak, in which  Blue Bell brand products were the source. A total of 10 people with listeriosis related to the outbreak were reported from 4 states: Arizona with 1, Kansas with 5, Oklahoma with 1, and Texas with 3. All ill people were hospitalized. 

Three deaths were reported from Kansas.

On April 20, 2015, Blue Bell Creameries voluntarily recalled all of its products on the market at that point that had made at all of its facilities, including ice cream, frozen yogurt, sherbet, and frozen snacks. It also closed its production facilities in four states.

The U.S. Food and Drug Administration released the critical findings from recent inspections at the Blue Bell production facilities on May 7, 2015.

Listeriosis is a life-threatening infection caused by eating food contaminated with the bacterium (germ) Listeria monocytogenes (Listeria). People at high risk for listeriosis include pregnant women and newborns, adults 65 and older, and people with weakened immune systems.

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