Blue Buffalo-May 19th, 2015 Legal Update

Case: 4:14-cv-00859-RWS Doc.
#: 271 Filed: 05/19/15 Page: 1 of 85 PageID #: 7007
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NESTL PURINA PETCARE COMPANY,

Plaintiff,
v.
Case No. 4:14-cv-00859-RWS
BLUE BUFFALO COMPANY LTD.,

Defendant.

Counterclaim Plaintiff,
v.
NESTL PURINA PETCARE COMPANY, BLUE
STATE DIGITAL INC., PRCG/HAGGERTY LLC,
ANSWER TO SECOND AMENDED

COMPLAINT, THIRD AMENDED
COUNTERCLAIM, AND THIRDPARTY COMPLAINT
JURY TRIAL DEMANDED
Counterclaim Defendants.

Third-Party Plaintiff,
v.
WILBUR-ELLIS COMPANY and DIVERSIFIED
INGREDIENTS, INC.,
Third-Party Defendants.
Defendant/Counterclaim Plaintiff Blue Buffalo Company Ltd. (Blue Buffalo), for its
Answer to the Second Amended Complaint of Plaintiff/Counterclaim Defendant Nestl Purina
Petcare Company (Nestl Purina), respectfully states as follows:
1.
Blue Buffalo admits that Nestl Purinas Second Amended Complaint purports to
assert claims for false advertising, commercial disparagement and unjust enrichment and seeks a
declaratory judgment.
2.
Blue Buffalo admits that it spends tens of millions of dollars on advertising to
promote the benefits of its products, employs marketing staff, and has built a brand targeted at
ingredient-conscious pet owners. Blue Buffalo denies that the tests conducted by Nestl Purina
provided a basis to draw conclusions about the ingredients in Blue Buffalos products. Indeed,
Blue Buffalo has now unmasked the identity of the highly sophisticated, independent
laboratory that Nestl Purina secretly commissioned to conduct its tests. As it turns out, the
laboratory is an individual working out of his basement who faked his credentials, and whose
methodologywhich consisted of looking at Blue Buffalos pet foods under a low-powered
microscopeis utterly unreliable and contrary to industry standards. (See Exhibit A hereto).
One of Americas leading microscopy experts has executed a declaration detailing the numerous
flaws in Nestl Purinas tests. (See Exhibit B hereto). Blue Buffalo specifically denies that its
product formulas contain chicken or poultry by-product meals, corn, or artificial preservatives, or
that its grain-free product formulas contain grains. Blue Buffalo denies the remaining allegations
of paragraph 2.
3.
Blue Buffalo admits that it emphasizes its ingredients and nutritional claims
throughout its website, product packaging, advertisements, and other promotional materials and
that it spends substantial sums on advertising. Blue Buffalo denies the remaining allegations of
paragraph 3.
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4.
Blue Buffalo denies that the tests conducted by Nestl Purina provided a basis to
draw conclusions about the ingredients in Blue Buffalos products. Blue Buffalo denies the
remaining allegations of paragraph 4.
5.
Blue Buffalo admits that it advertises and promotes its products as made with
only the finest natural ingredients and that it does not use chicken or poultry by-product meal,
corn or artificial preservatives. Blue Buffalo denies the remaining allegations of paragraph 5.
6.
Blue Buffalo denies that it has launched a vicious and false attack on big
name pet foods. Blue Buffalo admits that it spends millions of dollars per year on product
advertising. Blue Buffalo denies that its television commercials are false and unsubstantiated.
Blue Buffalo denies the remaining allegations in paragraph 6.
7.
Blue Buffalo admits the National Advertising Division of the Council of Better
Business Bureaus (NAD) issued a decision in a matter involving Blue Buffalo on March 11,
2014, and states that the decision speaks for itself. To the extent that paragraph 7 pleads legal
conclusions, no answer is required. Blue Buffalo denies the remaining allegations of paragraph 7
and specifically denies Nestl Purinas characterization of the findings of the NAD. Blue
Buffalo further denies the relevance and admissibility of the NAD decision in these proceedings.
8.
Denied.
9.
Blue Buffalo admits that the NAD issued a decision in a matter involving Blue
Buffalo on March 11, 2014, and states that the decision speaks for itself. To the extent that
paragraph 9 pleads legal conclusions, no answer is required. Blue Buffalo denies the remaining
allegations of paragraph 9 and specifically denies Nestl Purinas characterization of the findings
of the NAD. Blue Buffalo further denies the relevance and admissibility of the NAD decision in
these proceedings.
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10.
Blue Buffalo admits that the National Advertising Review Board (NARB)
issued a decision in a matter involving Blue Buffalo on July 9, 2014, and states that the decision
speaks for itself. To the extent that paragraph 10 pleads legal conclusions, no answer is required.
Blue Buffalo denies the remaining allegations of paragraph 10 and specifically denies Nestl
Purinas characterization of the findings of NARB. Blue Buffalo further denies the relevance
and admissibility of the NARB decision in these proceedings.
11.
Denied.
12.
Blue Buffalo admits that Nestl Purina is a Missouri corporation with
headquarters at 901 Chouteau Avenue, St. Louis, Missouri 63102 that makes and sells pet food,
treats, and related products in the United States and worldwide in grocery stores, mass
merchandisers, pet stores, and online. Blue Buffalo is without sufficient knowledge or
information to answer the remaining allegations of paragraph 12, and therefore denies the same.
13.
Blue Buffalo admits that it is a Delaware corporation with headquarters in Wilton,
Connecticut and is in the business of marketing and selling pet food, pet treats and related
products. Blue Buffalo denies the remaining allegations of paragraph 13.
14.
Blue Buffalo admits that the Second Amended Complaint purports to plead
claims under the Lanham Act and the common law of the State of Missouri. To the extent
Paragraph 14 pleads legal conclusions, no answer is required. Blue Buffalo denies the remaining
allegations of paragraph 14.
15.
Paragraph 15 pleads legal conclusions, to which no answer is required.
16.
Blue Buffalo admits that it advertises and sells its products to retailers and
consumers in Missouri, including through television commercials, in-person promotions, print

advertisement and Internet advertisements accessible from Missouri. Blue Buffalo further
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admits that it employs pet detectives in Missouri to promote sales of Blue Buffalo products to
consumers in various retail outlets in Missouri. And Blue Buffalo admits that it has a factory in
Joplin, Missouri, is recruiting employees to work in that factory, and maintains a registered agent
for service of process in Missouri. To the extent Paragraph 16 pleads legal conclusions, no
answer is required.
17.
Paragraph 17 pleads legal conclusions, to which no answer is required.
18.
Blue Buffalo admits that it provides nutritional and ingredient information on its
website, in its product packaging, in print ads, television ads, and in other advertising materials.
Blue Buffalo further admits that its products are sold at a price higher than certain competing
brands. Blue Buffalo denies the remaining allegations in paragraph 18.
19.
Blue Buffalo admits that it spent more than $50 million on product advertising in
2013. Blue Buffalo denies the remaining allegations in paragraph 19.

20.
Blue Buffalo admits that it advertises a TRUE BLUE PROMISE stating that its
products contain NO chicken/poultry by-product meals on its website, labels, and to

consumers. Blue Buffalo further admits that paragraph 20 contains a graphic depicting a version
of the TRUE BLUE PROMISE that has appeared on Blue Buffalos website. Blue Buffalo
denies the remaining allegations in paragraph 20.
21.
Blue Buffalo admits that paragraph 21 contains a graphic that has appeared on its
website. Blue Buffalo denies the remaining allegations in paragraph 21.

22.
Blue Buffalo admits that its products are different from many leading pet food
brands in that Blue Buffalo products do not contain ingredients considered less desirable by pet
parents. Blue Buffalo further admits that, as set forth more fully below, for a period of time
ending May 2014, in violation of Blue Buffalos procurement contracts and ingredient
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specifications, a major supplier of ingredients to Blue Buffalo and many other pet food
companies sent mislabeled ingredients to manufacturing facilities that produce Blue Buffalo dry
pet foods. As a result of this misconduct, which came to light only through discovery in this
action and was not previously known to or detected by Blue Buffalo or any other customer of
this supplier, some Blue Buffalo dry pet food products manufactured using the mislabeled
ingredients contained poultry by-product meal. Blue Buffalo has since stopped doing business
with this supplier, and is confident that none of its pet foods currently contain poultry by-product
meals. Blue Buffalo denies the remaining allegations in paragraph 22.
23.
Blue Buffalo denies that its product formulas contain chicken by-product meal or
poultry by-product meals or that it ever deliberately included those ingredients in its products.
Blue Buffalo further denies that the testing conducted by Nestl Purina provided a basis to draw
conclusions about the ingredients in Blue Buffalos products. Rather, Blue Buffalo has now
exposed Nestl Purinas tests as utterly unreliable junk science.
24.
Blue Buffalo admits that it makes statements that consumers should Choose
BLUE and that it advertises that its products contain the finest natural ingredients for superior
nutrition. Blue Buffalo further admits that paragraph 24 includes graphics that have appeared
on Blue Buffalos website. Blue Buffalo denies the remaining allegations of paragraph 24.
25.
Blue Buffalo admits the NAD issued a decision in a matter involving Blue
Buffalo on March 11, 2014 and states that the decision speaks for itself. To the extent that
paragraph 25 pleads legal conclusions, no answer is required. Blue Buffalo denies the remaining
allegations of paragraph 25 and specifically denies Nestl Purinas characterization of the
findings of the NAD. Blue Buffalo further denies the relevance and admissibility of the NAD
decision in these proceedings.
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26.
Denied.
27.
Blue Buffalo admits that its advertising features comparisons between Blue
Buffalo products and those of its competitors and that Blue Buffalo encourages consumers to
study product ingredient labels. Blue Buffalo further admits that paragraph 27 includes graphics
that have appeared on Blue Buffalos website. Blue Buffalo denies the remaining allegations of
paragraph 27.
28.
Blue Buffalo admits that paragraph 28 sets forth one of its former television
commercials. Blue Buffalo denies that the television commercial described in paragraph 28 is
currently being aired and denies the characterization of this commercial as an attack ad.
29.
Denied.
30.
Blue Buffalo admits that its website has offered a True Blue Test, which
allowed consumers to compare the ingredient contents of Blue Buffalos products with some
products of other leading brands, including some products of Nestl Purina. Blue Buffalo further
admits that paragraph 30 includes graphics that have appeared on Blue Buffalos website. Blue
Buffalo denies the remaining allegations of paragraph 30.
31.
Blue Buffalo admits that certain consumers of pet food are becoming increasingly
ingredient conscious and rely upon ingredient content information. Blue Buffalo denies the
remaining allegations of Paragraph 31.
32.
Blue Buffalo admits that Blue Buffalo products include LifeSource Bits that
include vitamins, minerals and antioxidants and are cold-formed. Blue Buffalo further
admits that LifeSource Bits are a darker color than the kibble that constitutes the majority of the
Blue Buffalo dry pet food products. Blue Buffalo admits that it advertises that its LifeSource
Bits contain a precise blend of vitamins, minerals and antioxidants. Blue Buffalo further
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admits that paragraph 32 includes graphics that have appeared on Blue Buffalos website. Blue
Buffalo denies the remaining allegations of Paragraph 32.
33.
Blue Buffalo admits that it has included LifeSource Bits on the results page of its
True Blue Test. Blue Buffalo further admits that paragraph 33 includes graphics that appeared
on Blue Buffalos website. Blue Buffalo denies the remaining allegations of paragraph 33.
34.
Denied.
35.
Blue Buffalo admits that it advertises that LifeSource Bits contain taurine for
health eyes and heart. Blue Buffalo admits that taurine is an essential amino acid for cats. Blue
Buffalo admits that the kibble in its dry food products contain taurine. Blue Buffalo lacks
knowledge or information concerning the testing alleged in paragraph 35 and on that basis denies
the allegations concerning that testing. Blue Buffalo denies the remaining allegations of
paragraph 35.
36.
Blue Buffalo admits that it advertises that LifeSource Bits contain lysine for
growth and development. Blue Buffalo admits that lysine is an important amino acid. Blue
Buffalo admits that its kibble includes lysine. Blue Buffalo denies the remaining allegations of
paragraph 36.
37.
Blue Buffalo admits that LifeSource Bits and other kibble contain omega 3 and
omega 6 fatty acids. Blue Buffalo lacks knowledge or information concerning the testing alleged
in paragraph 37 and on that basis denies the allegations concerning that testing. Blue Buffalo
denies the remaining allegations of paragraph 37.
38.
Blue Buffalo admits that LifeSource Bits and other kibble contain Vitamin B12.
Blue Buffalo lacks knowledge or information concerning the testing that forms the basis for the
allegation that LifeSource Bits contain 2-3 times less Vitamin B12 than the regular kibble and
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on that basis denies those allegations. Blue Buffalo denies the remaining allegations of
paragraph 38.
39.
Denied.
40.
Blue Buffalo admits that it makes statements that other manufacturers process
their foods with heat as high as 350 [which] can destroy the potency of many vitamins,
minerals, antioxidants and important enzymes. Blue Buffalo further admits that paragraph 40
includes graphics that appeared on Blue Buffalos website. Blue Buffalo denies the remaining
allegations of paragraph 40.
41.
Blue Buffalo admits that it has advertised that Jolly Joints pet treat contain
ingredients that Help[] Promote Health Joints and Hips. Blue Buffalo further admits that
paragraph 41 includes graphics that have appeared on Blue Buffalos website. Blue Buffalo
denies the remaining allegations of paragraph 41.
42.
Blue Buffalo admits that Jolly Joints pet treats contain 300mg/kg of glucosamine.
Blue Buffalo admits that a bag of Jolly Joints contains 92 grams of pet treats. Blue Buffalo
admits that a bag of Jolly Joints contains 27.6 mg of glucosamine. Blue Buffalo denies the
remaining allegations of paragraph 42.
43.
Admitted.
44.
Blue Buffalo admits that its advertising and employees have stated that Blue
Buffalos products contain Only the Finest Natural Ingredients and that they have No
Artificial Preservatives. Blue Buffalo admits that it employs salespeople to inform consumers
about the quality of Blue Buffalos products as compared to competitive products, that its
products do not contain any chicken or poultry by-product meals and that Blue Buffalo honors
the True Blue Promise. Blue Buffalo denies the remaining allegations of paragraph 44.
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45.
Denied.
46.
Admitted
47.
Blue Buffalo admits that certain consumers favor grain-free products for a variety
of reasons. Blue Buffalo further admits that its grain-free products are beneficial to pets with
grain allergies and that paragraph 47 includes graphics that have appeared on Blue Buffalos
website. Blue Buffalo denies the remaining allegations of paragraph 47.
48.
Denied. Blue Buffalo specifically denies that its products contain ground corn,
that rice hulls are a grain, and that its grain free product formulas contain ground corn, rice grain,
or any other grain.
49.
Denied.
50.
Blue Buffalo admits that it has used the slogan Love them like family. Feed
them like family. Blue Buffalo further admits that paragraph 50 includes graphics that have
appeared on Blue Buffalos website. Blue Buffalo denies the remaining allegations of paragraph
50.
51.
Denied.
52.
Blue Buffalo admits that certain Blue Buffalo advertising was challenged by a
competitor before NAD in 2008, and that NAD issued a decision on July 31, 2008. The decision
speaks for itself. To the extent paragraph 52 pleads legal conclusions, no answer is required.
Blue Buffalo denies the remaining allegations of paragraph 52 and specifically denies Nestl
Purinas characterization of the findings of the NAD. Blue Buffalo further denies the relevance
and admissibility of the NAD decision in these proceedings.
53.
Blue Buffalo admits that certain Blue Buffalo advertising was challenged by a
competitor before NAD in 2008, and that NAD issued a decision on July 31, 2008. The decision
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speaks for itself. To the extent paragraph 53 pleads legal conclusions, no answer is required.
Blue Buffalo denies the remaining allegations in paragraph 53 and specifically denies Nestl
Purinas characterization of the findings of the NAD. Blue Buffalo further denies the relevance
and admissibility of the NAD decision in these proceedings.
54.
Denied.
55.
Blue Buffalo admits that Nestl Purina filed its original complaint on May 6, 2014
in conjunction with an advertising campaign that included press releases, a website and
additional related media statements. Blue Buffalo denies the remaining allegations in paragraph
55.
56.
Admitted.
57.
Admitted.
58.
Paragraph 58 pleads a legal conclusion to which no answer is required.
COUNT I
(Alleged False Advertising Under The Lanham Act, 15 U.S.C. 1125(A))
59.
Blue Buffalo restates and incorporates by reference its responses to the allegations
of Paragraphs 1-58, as if fully set forth here.

60.
Denied.
61.
Denied.
62.
Denied.
63.
Denied.
64.
Denied.
65.
Denied.
66.
Denied.
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COUNT II
(Alleged Commercial Disparagement Under The Lanham Act, 15 U.S.C. 1125(A))
67.

68.
Denied.
69.
Denied.
70.
Denied.
71.
Denied.
72.
Denied.
73.
Denied.
74.
Denied.
COUNT III
(Alleged Common Law Unfair Competition)
75.

76.
Denied.
77.
Denied.
78.
Denied.
COUNT IV
(Alleged Common Law Unjust Enrichment)
79.

80.
Denied.
81.
Denied.
82.
Denied.
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83.
Denied.
COUNT V
(Declaratory Judgment)
84.

85.
Paragraph 85 pleads a legal conclusion to which no answer is required.
86.
Blue Buffalo admits that Nestl Purina seeks a declaration by this Court as
detailed in Paragraph 86. Blue Buffalo denies that Purina is entitled to any such declaration.
87.
Denied.
FIRST AFFIRMATIVE DEFENSE
Nestl Purinas complaint fails to state a claim upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
Nestl Purinas complaint is barred by the doctrine of unclean hands.
THIRD AFFIRMATIVE DEFENSE
Nestl Purinas complaint is barred because Blue Buffalo has complied with all
applicable regulations of the federal and state governments.
FOURTH AFFIRMATIVE DEFENSE
Nestl Purinas complaint is preempted or precluded in whole or in part by federal law.
FIFTH AFFIRMATIVE DEFENSE
Nestl Purinas complaint is barred by the doctrine of laches.
WHEREFORE, Blue Buffalo respectfully prays that the Second Amended Complaint be
dismissed in its entirety, that Blue Buffalo be awarded its costs and attorneys fees, and that the
Court order such other and further relief as it deems just and proper.
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THIRD AMENDED COUNTERCLAIM AGAINST NESTL PURINA,

BLUE STATE, AND PRCG/HAGGERTY
Blue Buffalo, for its counterclaim against Counterclaim Defendants Nestl Purina, Blue
State Digital Inc. (Blue State), PRCG/Haggerty LLC (PRCG/Haggerty), and John Does 1-8
(collectively with Nestl Purina, Counterclaim Defendants), respectfully alleges as follows:
INTRODUCTION
1.
Blue Buffalo brings this counterclaim to redress a sophisticated and carefully
orchestrated advertising campaign by Nestl Purinaalong with Nestl Purinas marketing and
public relations agencies PRCG/Haggerty LLC and Blue State Digitalthat falsely attacks Blue
Buffalos honesty and the quality of its products. Since May 2014, Nestl Purina has blanketed
the media with ads that claim that Blue Buffalo knowingly includes in its pet foods certain lowcost and unappealing ingredientsthe same ingredients that Nestl Purina admits are mainstays
in many of its own productsand that Blue Buffalo is purposefully deceiving consumers when it
states that it does not use those ingredients. In fact, it is Nestl Purinas fabricated claims about
Blue Buffalos product formulas, and malicious attacks on Blue Buffalos integrity, that are
blatantly false.
2.
Nestl Purina is a subsidiary of Nestl S.A., which is the worlds largest food
company with more than $100 billion in annual sales and $220 billion in market capitalization.
Nestl Purina is itself a corporate behemoth. It is the largest pet food company in the United
States with a 33% market share, which is more than twice that of its next competitor. A primary
ingredient in many of Nestl Purinas pet-food products is poultry by-product meal, which is
defined by industry standards as the ground, rendered, clean parts of the carcass of slaughtered
poultry, such as necks, feet, undeveloped eggs, and intestines, exclusive of feathers, except in
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such amounts as might occur unavoidably in good processing practices. Nestl Purinas
ingredients also include significant amounts of corn and corn derivatives, numerous artificial
color additives, and artificial preservatives.
3.
Blue Buffalo was founded just over a decade ago as a family company, with a
mission to provide consumers with a different choice. Blue Buffalo understands that pet
ownersor pet parents, as Blue Buffalo refers to themdo not want to feed their dogs and
cats ground and rendered poultry necks, feet, undeveloped eggs and intestines. Nor do they want
to feed them foods composed primarily of corn, artificial colors or artificial preservatives.
Instead of these undesirable constituents, Blue Buffalo pet foods contain high-quality natural
ingredients, including deboned chicken, lamb or fish as the first ingredient, wholesome whole
grains, garden vegetables, and antioxidant-rich fruits. Blue Buffalo pet foods also include a
proprietary blend of vitamins, minerals and antioxidants. Blue Buffalo pet food formulas contain
no chicken or poultry by-product meals; no artificial flavors, colors, or preservatives; and no
corn, wheat or soy.
4.
Blue Buffalo is now the fastest-growing major pet food company in the United
States, and has carved a leading position in the burgeoning wholesome natural-foods segment of
the market. The companys brand is built on a commitment to using natural, high-quality
ingredients and on its transparency with consumers. This relationship-building approach has
proven successful with pet owners. In recent years, consumers have flocked to Blue Buffalos
products and away from the engineered, low-cost products manufactured by Nestl Purina and
other major companies.
5.
Unable to compete on the merits of its ingredients or products, or for the hearts
and minds of todays pet food consumers, Nestl Purina has decided to wage a nationwide smear
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campaign against Blue Buffalo and its products. Leveraging its massive advertising and publicrelations apparatus, and accusing Blue Buffalo of a deliberate fraud on the consuming public,
Nestl Purina has set out to destroy Blue Buffalos brand and the core of the strength of that
brand: consumers faith in the integrity of Blue Buffalo as a company. Among other things,
Nestl Purina has set up a website at www.petfoodhonesty.com that accuses Blue Buffalo of not
being honest about the ingredients in their pet food. Nestl Purina has promoted that site and
repeated its attacks on Blue Buffalos honesty in press releases, on social media platforms, on its
brand-specific websites, in search-engine ads, and through direct emails to consumers and
retailers. Nestl Purinas campaign seeks to convince the public that Blue Buffalos dry pet-food
products contain poultry by-product meal and cornthe same ingredients that are the hallmark
of Nestl Purinas own brandsand that Blue Buffalo deliberately makes false representations to
the contrary in order to cultivate the false belief that these ingredients are absent from Blue
Buffalos products. Nestl Purina also claims that products that Blue Buffalo advertises as
grain-free in fact contain grains.
6.
Nestl Purinas claims are false. Blue Buffalo never uses poultry by-product meal
or corn in any of its formulas. Blue Buffalo has never sourced or ordered these ingredients and
its manufacturing facilities are not permitted to use them. And there are no rice grainsor
grains of any kindin any of Blue Buffalos grain free products.
7.
Apparently conscious of the legal risks inherent in its smear campaign, Nestl
Purina has filed in this Court a tactical lawsuit in which it makes many of the same false
accusations. Nestl Purina apparently hopes that its lawsuit will protect it from legal action by
Blue Buffalo, since statements in court papers themselves typically enjoy a litigation privilege.
But Nestl Purinas statements go well beyond its court filings. Nestl Purina has employed a
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systematic advertising and public relations campaign to widely disseminate its false claims in
press statements, emails and social media and on internet websites to consumers in Missouri and
throughout the United States. Nestl Purina cannot shield itself from accountability for its
actions. Nestl Purina implores consumers to Get the facts, and claims as a scientific fact that
Blue Buffalo is being dishonest because its pet food products actually contain substantial
amounts of poultry by-product meal. That is advertising. That is false. And that is a violation
of the law. Bringing a baseless lawsuit that repeats the same false advertising claims is no
defense.
8.
Nestl Purinas position is not helped by its vague assertion that independent
testing detected variable amounts of poultry by-product meal or corn on an inconsistent basis
in several Blue Buffalo product samples, or by its misguided claims regarding grain in grainfree products. Prior to filing this lawsuit, Blue Buffalo asked Nestl Purina to disclose the
laboratory testing it relies upon, but Nestl Purina flatly refused to do so. Nestl Purina
concealed its testing until forced to reveal it publicly. The reasons for Nestl Purinas secrecy
are now apparent: its tests were conducted by a single individual working out of his basement
who faked his credentials, and whose methods and conclusions are utterly unreliable.
9.
Unless curtailed, Nestl Purinas smear campaign will cause irreparable injury to
the value of Blue Buffalos brand. Blue Buffalo seeks injunctive relief, corrective advertising,
and damages occasioned by Counterclaim Defendants false and deceptive advertising campaign.
PARTIES
10.
Counterclaim Plaintiff Blue Buffalo is a Delaware corporation with headquarters
at 11 River Road, Wilton, Connecticut 06897. Blue Buffalo is in the business of developing,
marketing and selling pet food, pet treats, and related products in the United States and Canada.
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11.
Counterclaim Defendant Nestl Purina is a Missouri corporation with
headquarters at 901 Chouteau Avenue, St. Louis, Missouri 63102. Nestl Purina makes and sells
pet food, treats, and related products in the United States and worldwide.
12.
Counterclaim Defendant PRCG/Haggerty is a New York limited liability
company with headquarters at 45 Broadway, Suite 3140 New York, New York 10006. PRCG/
Haggerty is a public relations and communications firm that designed and built the advertising
campaign challenged herein. On information and belief, that campaign was designed with Nestl
Purina in Missouri and was intended to reach consumers throughout the United States.
13.
Counterclaim Defendant Blue State is a Delaware corporation with headquarters
at 101 Avenue of the Americas, New York, New York 10013. Blue State is a digital marketing
agency and a subsidiary of WPP Plc, which upon information and belief is the worlds largest
advertising agency. Blue State developed the content of advertisements challenged herein and
arranged for them to be disseminated to consumers throughout the United States. On
information and belief, these advertisements were developed with Nestl Purina in Missouri.
14.
Upon information and belief, Counterclaim Defendants John Doe 1 through John
Doe 8 are external advertising, marketing, and/or public relations firms, companies or
individuals that orchestrated, designed, assisted, contributed, advised, and/or participated in the
Nestl Purina advertising campaign that is the subject of this counterclaim.
JURISDICTION AND VENUE
15.
This action for false advertising arises under the Lanham Trademark Act of 1946,
15 U.S.C. 1051, et seq. (the Lanham Act), the common law of the states of Missouri and
Connecticut, and the unfair competition or deceptive trade practices statutes of various states as
detailed herein.
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16.
This Court has subject matter jurisdiction over this action pursuant to 15 U.S.C.
1121 and 28 U.S.C. 1331 and 1338. This Court has supplemental jurisdiction over the related
state and common law claims pursuant to 28 U.S.C. 1338(b) and 1367(a).
17.
Venue is proper in this District under 28 U.S.C. 1391(b)(2) because a
substantial part of the events or omissions giving rise to this action have occurred and/or will
occur within this District.
BACKGROUND FACTS
18.
Blue Buffalo was founded in 2002 by Bill Bishop and his two sons. When their
family dog was diagnosed with cancer, the Bishops began researching pet food ingredients and
were disturbed to learn that many well-known brands contained things like chicken by-product
meal and corn gluten meal (the dried residue from corn after the removal of the larger part of the
starch and germ, and the separation of the bran), as well as artificial flavors and colors. Having
discovered what they believed was a major disconnect between what pet owners wanted to feed
their cats and dogs and what they were actually feeding them, the Bishops founded Blue Buffalo
with the mission to bring transparency to the pet food category by educating consumers about the
ingredients in pet foods and offering them a better choice. Blue Buffalo developed and brought
to market foods made with the high-quality wholesome ingredients that many owners desired for
their pets but could not find in the cost-engineered mass-produced products made by major
companies.
19.
Blue Buffalo, like many of its competitors, makes both (1) dry pet food such as
that typically sold in bags, which is known as kibble; and (2) wet pet food such as that
typically sold in cans. The Nestl Purina false advertising at issue in this lawsuit addresses only
the ingredients in Blue Buffalos dry pet food.
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20.
Blue Buffalo products are designed to provide wholesome nutrition through high-
quality natural ingredients, vitamins, minerals, and antioxidants. Blue Buffalos dry food
formulas have four key characteristics. First, all Blue Buffalo products feature deboned chicken,
lamb, fish or other high quality real meats such as bison or venison as the first ingredient, which
means that there is more of that ingredient than any other in each recipe. Second, Blue Buffalo
uses only whole grains, rather than the less expensive fractionated grains used in many pet
foods. Third, each recipe contains garden vegetables and antioxidant-rich fruit. Fourth, all Blue
Buffalo dog and cat dry foods contain LifeSource Bits, which are a precise blend of vitamins,
minerals and antioxidants.
21.
Blue Buffalo foods are also distinguished by what they do not contain. Unlike
many leading brands, Blue Buffalo product formulas contain no chicken or poultry by-product
meals; no corn, wheat, or soy proteins (less expensive grains that are widely used in cheaper pet
foodsoften as a substitute for meat proteinsand that have been associated with allergies in
some pets); and no artificial colors, flavors, or preservatives.
22.
Blue Buffalo has built its strong brand identity by establishing relationships of
trust and transparency with pet owners. Blue Buffalo engages consumers by educating them on
pet nutrition and ingredients, inviting factual comparisons between Blue Buffalos products and
competing products based on ingredient labels, and allowing consumers to make their own
informed decisions about the composition of foods they want to feed their pets. The company
employs this strategy of transparency and education across all of its points of contact with pet
owners, from its website to its advertising to the one-on-one conversations that Blue Buffalos
representatives have each week with consumers at pet specialty stores across the United States
and Canada.
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23.
Nestl Purina takes a very different approach to making and selling its pet foods.
Its products typically use lower-cost ingredients, including chicken and poultry by-product meals
and corn as the primary ingredients; wheat and soy proteins; and artificial colors, flavors, and
preservatives. Most of Nestl Purinas products do not have real meat as a primary ingredient,
and many do not contain any vegetables or fruit.
24.
For example, Nestl Purinas flagship brand, Purina Dog Chow, lists corn as its
first ingredient, along with corn gluten meal, soybean meal, poultry by-product meal, and
numerous artificial color additives and preservatives. (See Exhibit C.)
25.
The first three ingredients in Purina Puppy Chowintended, according to its
label, for Growing Puppiesare whole grain corn, corn gluten meal, and chicken by-product
meal. (See Exhibit D.)
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26.
Notwithstanding the net impression from its packaging to the contrary, the first
four ingredients in Purinas popular Beneful Original dog food are ground yellow corn, chicken
by-product meal, corn gluten meal, and wheat flour; the product also contains propylene glycol
(a preservative that is also a key component in certain types of automotive antifreeze) and
numerous artificial colors. (See Exhibit E.)
- 22 -
27.
Nestl Purina uses the same type of ingredients in its cat foods as well. The first
three ingredients in Purina Friskies Indoor Delights cat food are corn, corn gluten meal, and
chicken by-product meal. (See Exhibit F.)
28.
Similarly, the first three ingredients in Purina Cat Chow Complete are poultry by-
product meal, corn meal, and corn gluten meal. (See Exhibit G.)
- 23 -
29.
The first three ingredients in Purinas gourmet Fancy Feast Filet Mignon Flavor
With Real Seafood & Shrimp cat food are brewers rice, poultry by-product meal, and corn gluten
meal. The product also contains ground corn, soybean meal, and artificial flavors and colors.
(See Exhibit H.)
30.
Given a choice between pet foods made with natural, high-quality ingredients and
those like Nestl Purinas products that are engineered using lower-cost ingredients, consumers
have flocked to Blue Buffalos products in increasing numbers. In the 12 years since its
founding, Blue Buffalo has risen to become the number one natural pet food brand in the United
States and the number one brand in pet specialty stores across the United States. During this
time, the company has gone from having 0% of the overall pet food market to a 5% share of the
U.S. market. Blue Buffalo is now the fastest growing major pet food company in the United
States.
31.
Blue Buffalos market gains have come at the expense of other established
brands, including Nestl Purinas. Blue Buffalos average weekly retail sales now surpass Nestl
- 24 -
Purina brands such as Purina Beneful, Purina Fancy Feast, and Purina ONE. Meanwhile, Nestl
Purinas own attempts to enter the natural pet foods market have largely failed, as sales of its
Purina ONE beyOnd and Purina Cat Chow Naturals product lines have been modest and
essentially flat for the past three years. Additionally, Nestl Purina previously launched and
subsequently discontinued other entries including Purine ONE Natural Blends, Pro Plan Selects,
and Pet Promise. Pet Promise was an especially noteworthy attempt to compete with natural pet
foods, as Nestl Purina concealed its ownership of the brand while providing it with an
aggressive marketing platform with the tagline of let byproducts be bygoneswhile at the
same time remaining one of the largest purveyors of pet foods filled with ingredients it was
encouraging pet owners to stop buying. (See Exhibit I.)
NESTL PURINAS FALSE AND MISLEADING ADVERTISING CAMPAIGN

32.
Having failed to keep pace with Blue Buffalo in the marketplace, Nestl Purina
has now launched an extensive false and disparaging advertising campaign designed to discredit
the claims that stand at the core of the Blue Buffalo brand and its relationship of trust with
- 25 -
consumers. Along with the other Counterclaim Defendants, Nestl Purina is carrying out a
sophisticated, extensive and multi-platform campaign that includes a purpose-built website, press
releases, an aggressive social media presence, unattributed search-engine ads, and emails that,
upon information and belief, have been sent to pet owners and pet food retailers across the
country.
33.
The centerpiece of Nestl Purinas campaign is a website (the Honesty
Website), designed and built by PRCG/Haggerty, that was launched on or about May 6, 2014.
Titled Purina: Where Honesty Is Our First Ingredient, the Honesty Website can be accessed on
the internet at www.petfoodhonesty.com. The masthead for the Honesty Website bears the
Nestl Purina brand name and symbol. Screenshots of the contents of the Honesty Website are
attached hereto as Exhibit J.
34.
The home page of the Honesty Website is styled as an open letter to pet owners
from Nestl Purina, describing supposedly deceptive marketing practices by Blue Buffalo. On
the home page, Counterclaim Defendants make a variety of false or misleading statements
regarding Blue Buffalos products and marketing practices, including the following:
a.
[T]esting conducted by an independent laboratory revealed that several of

Blue Buffalos top-selling Life Protection pet food products actually
contain substantial amounts of poultry by-product meal.
b.
Independent testing also shows that Blue Buffalos LifeSource Bits

contain poultry by-product meal and corn.
c.
[S]everal Blue Buffalo products promoted as grain-free actually contain

rice hulls, despite Blue Buffalo stating on its website that its grain-free
products will free your pet from the grains and glutens that cause allergic
reactions in some dogs.
d.
Blue Buffalo is not being honest about the ingredients in its pet food.
e.
99% of Purina pet food sold in the United States is manufactured at

Purinas own plants in the United States. By contrast, 100% of Blue
Buffalo pet foods is outsourced and made by third-party manufacturers.
- 26 -
35.
Nestl Purina knew these statements were false, or acted with reckless disregard
of the truth, when it launched the Honesty Website. Indeed, a Nestl Purina executive
responsible for Nestl Purinas campaign against Blue Buffalo admitted that she had no basis to
believe that Blue Buffalo had lied about the ingredients in its products at the time Nestl Purina
launched its campaign. And as set forth below, Nestl Purina had no basis to assert that an
independent laboratory had conducted independent testing or to rely on the conclusion of
that purported testing.
36.
PRCG/ Haggerty created the Honesty Website with, at a minimum, reckless
disregard for the truth. On information and belief, PRCG did not conduct any independent
investigation of the matters asserted on the Honesty Website, and therefore can have had no
reason to believe that Blue Buffalo was dishonest about the ingredients in its pet food. And, as
set forth below, if PRCG/Haggerty had actually inquired about the basis of the remaining claims,
it would have learned that they were unfounded. These allegations are made on information and
belief as to PRCG/ Haggerty because both it and Nestl Purina have refused to produce any
documents concerning PRCG/ Haggertys work on the Honesty Website.
37.
Simultaneously with the launch of the Honesty Website, on May 6, 2014, Nestl
Purina filed a false-advertising complaint (the Nestl Purina Complaint) in this Court. The
Nestl Purina Complaint vaguely alleges that undisclosed investigation and scientific testing
by an unnamed laboratory revealed that (1) a handful of Blue Buffalo product samples contained
poultry by-product meal and corn, and (2) samples of certain Blue Buffalo products advertised as
grain free actually contain rice hulls. (See Case No. 4:14-cv-00859, Dkt. No. 1). Upon
information and belief, Nestl Purina filed the Nestl Purina Complaint in an attempt to extend
- 27 -
litigation privilege protection to its advertising smear campaign, so as to shield its false and
misleading statements from liability.
38.
Also on May 6, 2014, Counterclaim Defendants issued a press release (the Press
Release) announcing the filing of the Nestl Purina Complaint that reiterated many of the false
and misleading claims from the Honesty Website. The Press Release repeated Nestl Purinas
claims that independent test results that show that Blue Buffalo is not being honest about the
ingredients in many of their best-selling pet foods, that several of Blue Buffalos top-selling
Life Protection pet food products contained significant percentages of poultry by-product
meal, and that Blue Buffalo LifeSource Bits contain poultry by-product meal and corn. The
Press Release also reiterated that several Blue Buffalo products promoted as grain-free
actually contain rice hulls. (See Exhibit K.)
39.
Nestl Purina has heavily promoted the Honesty Website on its Facebook page at
https://www.facebook.com/purina. For example, on May 6, 2014 Nestl Purina posted a link to

the Honesty Website under the statement: Honesty is the most important ingredient in the
relationship between a pet food company and pet owners. It also posted an image with overlaid
text stating Purina: Where our first ingredient is honesty. Nestl Purina reposted the link to the
Honesty Website on May 7, 2014 under the statement: Purina has always operated with the
highest standardsincluding a commitment to honesty and integrity. Our pets deserve no less.
Nestl Purina then reposted the link yet again on May 8, 2014 under the statement: Not all pet
food companies are honest about the ingredients they use. Get the facts at
www.Puri.na/Honesty. That linktruncated for social media postingtakes readers to the
Honesty Website. Nestl Purina has also engaged in numerous discussions with consumers on
its Facebook page in which it has repeated its false claims. (See Exhibit L.)
- 28 -
40.
Nestl Purina has also promoted the Honesty Website on its Twitter account at
https://twitter.com/Purina. For example, on May 8, 2014, Nestl Purina tweeted a link to the
Honesty Website with the text, Is your pet food company being honest about its ingredients?
Find out at Puri.na/Honesty. The same day, Nestl Purina tweeted another link to the Honesty
Website with the statement, Your pets trust you to feed them right. Shouldnt you be able to
trust the food you give them? Between May 7 and May 13, 2014, Nestl Purina sent 11 tweets
linking to the Honesty Website. (See Exhibit M.)
41.
Blue State developed the content for these advertisements on Nestl Purinas
Facebook and Twitter accounts and arranged for social media posts relating to
PetFoodHonesty.com to be directed to the social media pages of pet food consumers on
Facebook and Twitter.
42.
Blue State acted with, at a minimum, reckless disregard for the truth when it
produced this advertising content for Nestl Purinas Facebook and Twitter accounts. If Blue
State had actually investigated the basis of these statements, it would have learned that they were
false and misleading. Indeed, the Nestl Purina executive responsible for coordinating with Blue
State on the Blue Buffalo campaign testified that she did not have evidence that Blue Buffalo
was lying about the ingredients in its products at the time Nestl Purina launched its campaign.
And, as set forth below, if Blue State had actually inquired about the basis of the remaining
claims, it would have learned that they were unfounded.
43.
Nestl Purina has also advertised the Honesty Website on many of its brand-
specific websites. For example, Nestl Purina has used a masthead advertisement on the website
for its Beneful line of products at www.beneful.com that leads consumers to the Honesty
Website and states: HONESTY IN PET FOOD. Purina believes that honesty is the most
- 29 -
important ingredient in the relationship between pet owners and pet food manufacturers. Please
visit www.petfoodhonesty.com to learn more about actions we are taking to stop false
advertising aimed at pet owners. Nestl Purina has the same masthead advertisement on
www.catchow.com and www.dogchow.com. (See Exhibit N.)
44.
In an attempt to damage Blue Buffalos reputation with veterinarians, Nestl
Purina has similarly advertised the Honesty Website on its website marketing to veterinarians.
Specifically, Nestl Purina has placed an advertisement on the website for its Veterinary Diets
line of products at www.purinaveterinarydiets.com that asks Is your pet food company being
honest? and invites veterinarians to Learn more at petfoodhonesty.com. (See Exhibit O).
45.
On information and belief, on or about May 7, 2014, Counterclaim Defendants
sent out a mass e-mailing (the Direct E-mails) to consumers and pet food retailers nationwide.
An example of one of these e-mails is attached as Exhibit P. The Direct E-mails repeated the
same text, and therefore the same false claims, as the letter to pet owners on the Honesty
Website.
46.
Counterclaim Defendants have also purchased false and misleading
advertisements on Google.com (hereafter, the Google Ads) that are designed to appear when
consumers search for Blue Buffalo or its products. Upon information and belief, Counterclaim
Defendants have spent heavily to ensure that these advertisements appear above the Google
search results for common terms relating to Blue Buffalo. (See Exhibit Q.) For example, the
third result of a May 12, 2014 search for the term Blue Buffalo was a paid advertisement
linking to the Honesty Website. The link was accompanied by unattributed text stating, A dog
food company is lying about its ingredients. Learn the facts. In a search for the terms Blue
Buffalo pet food, the second result was a link to the Honesty Website with the title, Dog food
- 30 -
company honesty. The link was accompanied by text reading, Is your dog food company
being honest about its ingredients? And the third search result for the term Blue Buffalo
natural was another link to the Honesty Website titled, The facts about dog food, again
accompanied by the text, A dog food company is lying about its ingredients. Learn the facts.
(See Exhibit R.) Because these statements appear alongside the search results for Blue Buffalo
and its products, they assert that Blue Buffalo is lying about the ingredients in its products. Blue
State arranged for these links to PetFoodHonesty.com to appear when Google.com users search
for terms related to Blue Buffalo.
47.
As set forth below, the statements made on the Honesty Website and reiterated in
the Press Release, in Facebook and Twitter posts, on the individual product websites, in the
Direct E-Mails, and in the Google Ads are false and misleading.
48.
The Counterclaim Defendants had no basis to make such false and misleading
claims and acted with at least reckless disregard for the truth.
Nestl Purinas False Claim that Blue Buffalo Products Contain Poultry By-Product Meal
49.
Counterclaim Defendants claim on the Honesty Website and in the Direct E-mails
that (1) testing conducted by an independent laboratory revealed that several of Blue Buffalos
top-selling Life Protection pet food products actually contain substantial amounts of poultry
by-product meal, and (2) [i]ndependent testing also shows that Blue Buffalos LifeSource
Bits contain poultry by-product meal.
50.
The Association of American Feed Control Officials, which establishes the
definitions and descriptions of ingredients that are allowed to be used in pet foods, defines
poultry by-product meal as the ground, rendered, clean parts of the carcass of slaughtered
poultry, such as necks, feet, undeveloped eggs and intestines, exclusive of feathers, except in
- 31 -
such amounts as might occur unavoidably in good processing practices. (AAFCO 2014 Official
Publication at 356.)
51.
Nestl Purinas claims are false. Blue Buffalo does not purchase or knowingly
use poultry by-product meal in any of its products, and none of its product formulas include
poultry by-product meal as an ingredient. Moreover, Blue Buffalo provides its manufacturing
contractors with detailed specifications, and often a limited list of approved ingredient suppliers,
for all of the ingredients used in its products. Those specifications never allow for the use of
poultry by-product meal. Blue Buffalo manufacturing contractors are not permitted to vary from
Blue Buffalo recipes and are not authorized to use poultry by-product meal when manufacturing
Blue Buffalo products. Blue Buffalo instead pays for and uses the high quality ingredients
specified in its products formulas.
52.
To the extent that laboratory tests commissioned by Nestl Purina purport to show
poultry by-product meal in Blue Buffalos products, those results are unreliable and false. Nestl
Purina refused to identify the laboratory that conducted the tests it relies upon or the method that
the laboratory used to supposedly differentiate poultry by-product meal from other ingredients
until forced to do so in this litigation.
53.
Shortly after the Honesty Website and related smear campaign were launched,
Blue Buffalo asked Nestl Purina to provide it with copies of the laboratory tests it relies upon.
Nestl Purina refused and said it would provide the results at the appropriate time. (See
Exhibits S and T.) In fact, Nestl Purina refused to turn over or make public its tests until after
Blue Buffalo went to court to force Nestl Purina to do so. The reason for Nestl Purinas
stonewalling is now readily apparent: as detailed below, the tests are bogus and do not support
the false and misleading claims that Nestl Purina is making.
- 32 -
Nestl Purinas False Claim that Blue Buffalos Grain-Free Products Contain Grains
54.
Counterclaim Defendants state in their advertising that several Blue Buffalo
products promoted as grain-free actually contain quantities of rice hulls. The necessary
implication of this claimthat these products contain grainis false.
55.
A rice hull is not a grain and contains no grain. The grain of a plant is its seed. A
rice hull by definition is the hard covering that is left over after the rice grain has been
removed. It is primarily composed of silica and is often used as a quality source of fiber. Rice
hulls are used in Blue Buffalo products as a processing aid to deliver a blend of vitamin and
mineral supplements. The actual inclusion level is typically less than 1/10th of what Nestl
Purina claims, and below the level that AAFCO requires to be listed as an ingredient. In short,
Nestl Purinas assertion that Blue Buffalos use of rice hulls renders its grain-free claims false
is itself a fiction. A rice hull is not a grain, and there is nothing remotely untrue about Blue
Buffalos grain-free advertising.
Nestl Purinas False Claim that Blue Buffalos LifeSource Bits Contain Corn
56.
Counterclaim Defendants state in ads including the Honesty Website and in the
Direct E-mails that Independent testing also shows that Blue Buffalos LifeSource Bits
contain . . . corn. Counterclaim Defendants repeat substantially similar claims in the Press
Release. These claims are false.
57.
Blue Buffalo does not use corn in any of its products. None of Blue Buffalos
product formulas or specifications it provides its manufacturers include corn as an ingredient.

Blue Buffalo manufacturing contractors are not permitted to vary from Blue Buffalo recipes and
do not use corn when manufacturing Blue Buffalo products.
- 33 -
Nestl Purinas False Claim that Blue Buffalos Products Are Subject to Quality Control
Problems Because They are Outsourced
58.
Counterclaim Defendants state on the Honesty Website and in the Press Release
that 99% of Purina pet food sold in the United States is manufactured at Purinas own plants in
the United States. By contrast, 100% of Blue Buffalo pet foods is outsourced and made by thirdparty manufacturers. This statement necessarily implies that Blue Buffalos pet foods are not
made in the United States. Furthermore, the statement is likely to be understood by consumers to
mean that Blue Buffalos pet foods are subject to the types of highly publicized quality control
problems that have impacted other pet food manufacturers that have outsourced production to
offshore manufacturers.
59.
The claim that Blue Buffalos products are manufactured outside of the United
States is categorically false. One hundred percent of Blue Buffalos products are manufactured
in facilities in the continental United States.
60.
Not only is Nestl Purinas statement false, it is intended to play on consumers
concerns about recent incidents involving Chinese-manufactured pet foods that were found to
contain unapproved and potentially harmful ingredients. Nestl Purina itself was at the center of
these incidents. On January 9, 2013, Nestl Purina withdrew two of its pet food product lines
after New York state agricultural officials discovered that the products, manufactured in China,
contained residues of prohibited antibiotics that are not approved for use in animal feeds in the
United States. Several months later, in August 2013, Nestl Purina voluntarily recalled bags of
Purina ONE beyOnd Our White Meat Chicken & Whole Barley Recipe Adult Dry Dog Food,
which is Purinas natural line of adult dry dog food. The product was found to be
contaminated with salmonella. These incidents were widely publicized both in the general press
and in publications aimed at pet owners.
- 34 -
61.
Counterclaim Defendants statement also makes the false representation that,
because Blue Buffalo products are manufactured at third-party manufacturing facilities (referred
to in the industry as co-packers), they are inherently susceptible to quality control problems. In
fact, Blue Buffalo utilizes industry best Quality Assurance and Quality Control protocols in the
formulation and manufacturing of its products, and demands that each of its co-packers strictly
adhere to these protocols. The use of co-packers is a common industry practice, and the notion
that their use entails quality control problems is baseless and false. Co-packers are similarly
used by numerous industry participants, including major pet food retailers for the manufacture of
pet food sold under their store brands. Indeed, Nestl Purinas parent company, Nestl, itself
makes extensive use of co-packers to manufacture foods for human consumption.
Nestl Purinas False Claim that Blue Buffalo Is Dishonest About its Ingredients
62.
The Honesty Website and the Direct E-mails state that Blue Buffalo is not being
honest about the ingredients in its pet food. The Google Ads similarly claim that Blue Buffalo
is lying about its ingredients. These and similar statements are false. As detailed above,
Counterclaim Defendants have not reliably identified a single false statement in Blue Buffalos
advertising. Moreover, Defendants have not identified a scintilla of evidence to suggest Blue
Buffalo intentionally misled consumers about the ingredients of any of its products.
63.
Counterclaim Defendants claim is particularly pernicious because it is intended
to attack not merely the truth of Blue Buffalos advertising claims, but the integrity and brand
identity of the company, which has been central to its success.
64.
In addition to attacking Blue Buffalos credibility, in connection with many of its
links to the petfoodhonesty.com website, Nestl Purina has claimed that For 85 years, we have
been committed to honesty and that Honesty has been our first ingredient for 85 years. (See
- 35 -
Exhibits L, M, N, O.). These claims necessarily imply that Nestl Purina is more honest with
consumers than is Blue Buffalo, or that Nestl Purina is honest while Blue Buffalo is not. These
claims are false. As set forth above, Nestl Purinas claims about Blue Buffalos alleged lack of
honesty are baseless. Meanwhile, Nestl Purina has a long track record of dishonesty with
consumers. In fact, on multiple occasions, Nestl Purina and its predecessors have been found to
have engaged in false and deceptive advertising. See, e.g., ALPO Petfoods v. Ralston Purina
Co., 913 F.2d 958, 962 (D.C. Cir. 1990); Gillette Co. v. Ralston Purina Co., 99 Civ. 3373, 1999
U.S. Dist. LEXIS 7718 (S.D.N.Y. May 14, 1999). More recently, Nestl Purinas parent
corporation received an award from a consumer group for notable false advertising in relation
to its baby food products. (See Exhibit U).
NESTL PURINAS INDEPENDENT TESTING HAS BEEN EXPOSED AS A SHAM
65.
On May 9, 2014, days after Counterclaim Defendants launched the Honesty
Website and related smear campaign, Blue Buffalo asked Nestl Purina to provide it with copies
of the laboratory tests that Nestl Purina relies upon for its claims that certain Blue Buffalo
products contain poultry by-product meal and/or other ingredients not reflected on Blue
Buffalos product labels. Nestl Purina refused, stating that it would provide the test results
later, at the appropriate time. (See Exhibits S and T.)
66.
On June 2, 2014, Blue Buffalo filed in this Court a motion to force Nestl Purina
to turn over the testing on which its smear campaign is based. Nestl Purina opposed that
motion, accusing Blue Buffalo of seeking an unwarranted tactical advantage through onesided discovery. (See Case No. 4:14-cv-00920, Dkt. Nos. 15, 16; Case No. 4:14-cv-00859, Dkt.
No. 27).
- 36 -
67.
On July 23, 2014, after months of stonewalling, Nestl Purina finally provided
Blue Buffalo with a summary of its testing. At that time, Nestl Purina designated the test report
confidential and insisted that its distribution be limited to Blue Buffalos outside counsel and
retained experts.
68.
Blue Buffalos representatives reviewed the report and concluded that Nestl
Purinas testing was scientifically unreliable. Blue Buffalo asked Nestl Purina to voluntarily
remove its confidentiality designation, but Nestl Purina refused. Blue Buffalo also requested an
opportunity to conduct a sworn deposition of Dr. James Makowskithe individual who carried
out Nestl Purinas testsbut Nestl Purina refused that request as well.
69.
Blue Buffalo therefore returned to Court and sought an order requiring Nestl
Purina to produce Dr. Makowski for deposition, and to make his test results public. The Court
ruled in Blue Buffalos favor on both issues. Nestl Purina finally removed the veil of
confidentiality and made its test results available to the public on September 22, 2014.
70.
On November 13, 2014, one day prior to the deadline ordered by the Court,
Nestl Purina produced Dr. Makowski for deposition. That examination exposed Dr.
Makowskis lack of credibility and confirmed that his testing is utterly unreliable. (See Exhibit
A). Counterclaim Defendants knew or should have known these facts relating to Dr. Makowski
and his testing before they launched their smear campaign based upon his work.
Dr. Makowski Has Fabricated His Credentials
71.
Dr. Makowskis deposition revealed a pattern of misrepresentation regarding his
credentials. For example, Dr. Makowskis manual Microscopic Analysis of Agricultural

Products includes a biography stating that James Makowski received his Ph.D. from the
University of Delaware in Genetics in 1991. (Exhibit A hereto (November 13, 2014 Deposition
- 37 -
of James V. Makowski) at 59:2-8). At deposition, however, Dr. Makowski admitted that his
Ph.D. is in Curriculum and Instruction, not genetics. (Exhibit A at 54:11-14).
72.
Dr. Makowski has also misrepresented his Ph.D. on social media. On Facebook,
for example, Dr. Makowski described his education by stating that he studied Ph.D. genetics at
the University of Delaware. (Exhibit A at 72:3-25). But Dr. Makowski changed his Facebook
profile between June and August 2014at the very same time that Blue Buffalo was pressing for
disclosure of his identityto state that he Studied Ph.D. curriculum and instruction at the
University of Delaware. (Exhibit A at 77:7-13).
73.
In addition to misrepresenting his academic credentials, Dr. Makowski has
fabricated publications. Dr. Makowskis curriculum vitae (C.V.) lists 12 purported

Publications. Only one entry on the C.V. describes a publication in a peer-reviewed journal.
That entry states (Exhibit A to Nestl Purinas Second Amended Complaint Dkt. # 104-1, Ex. 1
thereto at PUR_000243):
74.
Under cross-examination, however, Dr. Makowski admitted that this article was
in fact rejected for publication in the cited journal because it did not pass the peer review
process. (Exhibit A at 15:8-16). Dr. Makowski claimed that it was open to debate whether it
was appropriate for him to list this rejected article as a publication. (Exhibit A at 16:15-17:4).
Dr. Makowski similarly claimed on his C.V. at least two other publications that were also
fabricated. (Exhibit A at 28:7-29:24).
75.
Dr. Makowskis misrepresentations have played a direct role in his academic
advancement. Dr. Makowski testified that Messiah College, where he is a professor of biology,
- 38 -
reevaluates tenure determinations every five years and that he submits his C.V. and publications
list as part of that process. (Exhibit A at 18:20-19:23). Dr. Makowski noted, however, that
Messiah College is a Christian school that places ethics at the center of its ethos and that
concerns about integrity would be very important to Messiah. (Exhibit A at 20:18-21:20,
30:19-23).
Dr. Makowski Does Not Run a Highly Sophisticated, Independent Laboratory
76.
Contrary to Nestl Purinas assertion that its testing was conducted by a highly
sophisticated, independent laboratory,(see Exhibit L) Dr. Makowski undertook the testing

underlying his report by himself, in his basement. (Exhibit A at 86:18-23). Dr. Makowskis lab
consists of three rudimentary microscopes. (Exhibit A at 90:2-4). Dr. Makowskis lab did not
even have a camera until Nestl Purina purchased one for him. (Exhibit A at 125:11-126:11).
77.
Moreover, Dr. Makowski is far from independent. Nestl Purina has been one
of Dr. Makowskis largest clients for nearly three decades, and it purchased much of the
equipment in his lab for him. (Exhibit A at 90:18-22, 95:8-10, 97:21-98:5, 125:11-126:11).
Dr. Makowskis Findings Are Unreliable
78.
Dr. Makowskis attempts to defend his substantive findings fared no better. In his
test report, Dr. Makowski purported to have identified poultry by-product meal in varying
amounts in three out of 20 samples of Blue Buffalo kibble, and in 15 out of 20 samples of Blue
Buffalo dark bits tested. (Exhibit A to Nestl Purinas Second Amended Complaint, Dkt. # 1041, at PUR_000211).
79.
Dr. Makowski admitted, however, that his report identified the bases for his
conclusions with regard to only two of the kibble samples that he tested (both from the same
product). With regard to all other purported identifications, Dr. Makowski could not recall what
- 39 -
specifically he had seen that led him to conclude that any sample included poultry by-product
meal. (Exhibit A at 292:5-293:8). He further admitted that there was nothing in his report,
photographs, or any other documentation that identified what he saw in any particular sample
that led him to his conclusions. (Exhibit A at 151:20-152:10). Dr. Makowski thus agreed that
there was no way for any other scientist to validate his conclusions. (Exhibit A at 117:11-17,
152:11-22, 241:9-14).
80.
As to the two samples of kibble for which Dr. Makowskis report did identify the
purported basis for his conclusions, Dr. Makowski stated that he found small fragments of egg
shell, raw feather and leg scale in those samples. (Exhibit A to Nestl Purinas Second
Amended Complaint Dkt. # 104-1, at PUR_000211). Those assertions, however, are entirely
unreliable. For example:
As to feathers, Dr. Makowski did not record and could not recall how many feathers
he saw in each sample, or whether there was more than one. (Exhibit A at 249:21250:7). Dr. Makowski admitted that the presence of feathers is consistent with both
poultry meal and poultry by-product meal. (Exhibit A at 260:5-18). While Dr.
Makowskis own manual states that suspected feather identifications must be
confirmed using a compound microscope or a chemical staining test, Dr. Makowski
made no effort to perform such confirmatory analysis. (Exhibit A at 245:2-246:3,
272:18-277:7, 280:2-282:10). The only evidence Dr. Makowski could point to in
support of his conclusiona picture of what he claimed was a featheris, in Dr.
Makowskis own words, a terrible picture. Ill stipulate to that. The background
isits dark, and there is not sufficient lighting for this. (Exhibit A at 269:2-14).
As to egg shells, Dr. Makowski claimed to have seen just one fragment in each
sample. (Exhibit A at 248:10-21). Dr. Makowski admitted, however, that his own
manual does not identify egg shell as a marker of poultry by-product meal. (Exhibit
A at 283:20-284:2). He further admitted that he was not familiar enough with the
rendering process to know if an egg shell could make its way into poultry meal.
(Exhibit A at 284:20-286:8). Dr. Makowski also acknowledged that there was some
potential for disagreement among microscopists as to whether his identification of
egg shell was accurate in the first place. (Exhibit A at 288:3-9). Dr. Makowski also
did not perform any analysis to confirm whether what he saw was an egg shell as
opposed to a calcium carbonate deposit. (Exhibit A at 289:9-25). Indeed, Dr.
Makowski did not even consult an egg-shell reference standard because he did not
have one. (Exhibit A at 290:7-17).
- 40 -
81.
As to leg scale, Dr. Makowski similarly failed to take any secondary steps to confirm
his purported visual analysis through further testing, e.g. to confirm the animal
origins of the particle in question. (Exhibit A at 298:24-299:14). Dr. Makowski
claimed to have seen just two or three leg scale fragments in each sample. (Exhibit
A at 250:8-12). Based on these limited findings he concluded that the samples
contained substantial amounts of poultry by-product meal, even though on a typical
poultry by-product meal, we might expect to find somewhere between 1 and 2 percent
leg scale. (Exhibit A at 252:22-253:3). Dr. Makowski identified these two or
three fragments based solely on the fact that they were irregular clear to opaque
material. (Exhibit A at 295:21-25). According to Dr. Makowski, if we were to
look at it [leg scale] in a higher magnification, we would see almost layers. (Exhibit
A at 295:9-20). However, Dr. Makowski failed to inspect the irregular clear to
opaque material he observed to determine if it had this characteristic. (Exhibit A at
295:9-20). Dr. Makowski admitted that his one photograph of the supposed leg scale
was amber rather than clear to whitish because the photo was taken under poor
lighting. (Exhibit A at 296:4-18). Dr. Makowski also admitted that the fragments
he observed in Blue Buffalos products were darker in color than his leg scale
reference, an unverified particle Dr. Makowski pulled from his poultry by-product
meal standard. (Exhibit A at 297:8-298:5).
Notably, whenever Dr. Makowski believed he saw any of these markers, his
report indicated that all of the meal contained within a sample was poultry by-product meal and
not poultry meal. For example, where a product seemingly contained 27% poultry meal and 1%
poultry by-product meal, Dr. Makowski classified it as containing 28% poultry by-product meal.
(Exhibit A at 259:5-20). Dr. Makowskis report employed this methodology even though, at an
earlier stage in his investigations, Dr. Makowski would have categorized the sample as
containing 1% by-product meal. (Exhibit A at 252:16-253:10).
82.
Dr. Makowskis conclusions are also inconsistent with his own lab notebook. In
many instances, Dr. Makowskis contemporaneous notes stated that he had identified poultry
meal or chicken meal in a sample. In Dr. Makowskis final report, however, the corresponding
entries state that he identified poultry or chicken by-product meal in those samples. Dr.
Makowskis only explanation was that he sometimes altered his conclusions later in his analysis.
(Exhibit A at 153:6-157:7). But in no instance could Dr. Makowski identify any basis for the
- 41 -
specific changes he made. Notably, his lab notes contradict his findings as to two out of three
identifications of poultry by-product meal in Blue Buffalo kibble, and the lab notes on the third
entry reflect numerous changes to his conclusions. (Exhibit A at 153:6-157:7).
83.
Dr. Makowskis lab notes similarly contradict the conclusions stated in his report
concerning the presence of poultry by-product meal in Blue Buffalo dark bits. (Exhibit A at
142:6-143:24, 146:6-20). In fact, Dr. Makowski admitted that he had simply assumed that
poultry by-product meal was present in 11 of the 15 dark bit samples in which he purported to
identify iteven though he saw no markers for poultry by-product meal in those samples.
(Exhibit A at 320:13-322:6). Dr. Makowski could not identify the basis for his conclusion that
poultry by-product meal was present in any sample of the Blue Buffalo dark bits that he tested.
(Exhibit A at 146:1-16, 324:13-16).
Dr. Makowskis Purported Identification of Corn Is Undocumented and Unverifiable
84.
Dr. Makowski admitted that he took no photographs and did not otherwise
document the basis for his conclusion that corn was present in any Blue Buffalo products. He
agreed that there was no way for any other scientist to validate his claims regarding corn.
(Exhibit A at 231:22-232:23).
Dr. Makowskis Agrees that Blue Buffalo Products Do Not Contain Rice Grains
85.
Dr. Makowski testified that that he did not identify any rice grain or rice starch in
any Blue Buffalo grain-free products. While he claimed to have identified rice hulls, Dr.
Makowski further testified that a rice hull is distinct from the rice grain. (Exhibit A at 235:25236:6, 236:21-237:17).
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Dr. Makowskis Testing Methodologies Are Contrary To Industry Standards

86.
At each step of the way, Dr. Makowskis work was riddled with methodological
errors contrary to sound scientific practices. For example:
Contrary to accepted practices, Dr. Makowski did not retain an independent thirdparty service to purchase or otherwise procure the products at issue, or to select the
samples for analysis. Rather, all of the samples were delivered to Dr. Makowski by
Nestl Purina. Dr. Makowski claimed to have no knowledge as to how those samples
or lots were selected. (Exhibit A at 175:10-19).
Dr. Makowski did not follow an appropriate blinding protocol. Dr. Makowski
prepared samples for testing on his own, removing them from branded packaging.
Dr. Makowskis only explanation for how this was a scientifically sound blinding
methodology was because at the time I began the analysis, I had no recollection of
what any one particular bag represented. (Exhibit A at 168:6-169:21). In other
words, Dr. Makowski relied on a lapse in memory to blind the experiment, which is
contrary to standard scientific procedures.
Dr. Makowski failed to preserve, photograph or document the samples he studied,

and instead threw them in the trash. (Exhibit A at 113:24-114:3, 117:11-17, 123:24124:2, 215:12-15).
Dr. Makowskis Reference Standards Are Unreliable

87.
Dr. Makowski purports to have based his conclusions on comparisons of what he
saw under the microscope to his library of reference standards. Dr. Makowskis reference
standards, however, are of unknown provenance. For example, Dr. Makowski testified that he
obtained his samples of chicken meal and poultry by-product meal more than 15 years ago. He
does not know how they were used prior to his acquisition of them and does not remember where
he got them. He does not even refrigerate them. (Exhibit A at 348:11-349:5, 351:14-353:7). Dr.
Makowskis poultry meal reference standards are also contaminated, including with plant tissue
and fiber. Dr. Makowskis only explanation for this contamination was that chickens like to eat
different things and perhaps a chicken ate cotton fibers that thereby made their way into his
reference standard. (Exhibit A at 343:24-344:16). Dr. Makowski could not explain, however,
- 43 -
why his reference standard for poultry meal included a white human hair similar to his own.
(Exhibit A at 347:19-349:12).
Dr. Makowskis Quantification Methodologies Are Unreliable
88.
In his report, Dr. Makowski purported to make remarkably accurate
quantifications of ingredient inclusion down to tenths of percentages, such as ground yellow corn
at 0.2%. (Exhibit A to Nestl Purinas Second Amended Complaint Dkt. No. 104-1 at
PUR_000212). Dr. Makowski testified that he made these determinations purely on the basis of
visual observation and estimation. (Exhibit A at 368:25-369:17). To the extent he performed
any mathematical calculations, Dr. Makowski testified that he did them either in my head or
on a calculator, but did not document the computations. (Exhibit A at 204:18-205:23, 207:23208:11, 209:10-17, 365:11-14). Notably, when asked to perform calculations during the
deposition, Dr. Makowskis computations were entirely wrong, and he admitted that my math is
terrible. (Exhibit A at 96:23-97:20, 371:13-372:22). Dr. Makowski acknowledged that there
are other, more scientific quantification methodologies, such as weighing particles, but testified
that he did not perform such an analysis here because it is very laborious. (Exhibit A at 382:620)
Conclusions Regarding Dr. Makowskis Tests
89.
Blue Buffalo has retained a world-renowned expert in microscopy, Dr. Vinayak
Dravid, to review and comment on the reliability of Dr. Makowskis tests. Dr. Dravid is the
Abraham Harris Chaired Professor in the Department of Materials Science and Engineering in
the McCormick School of Engineering and Applied Science at Northwestern University. In
contrast to Dr. Makowski, Dr. Dravid has authored more than 350 articles that have been
published in peer-reviewed academic journals. He serves as an Editor of Microscopy &
- 44 -
Microanalysis, the flagship journal of the Microscopy Society of America, the oldest
professional society for microscopy in the United States, of which Dr. Dravid is a fellow.
90.
Dr. Dravid has reviewed Dr. Makowskis test report and lab notes, and he
attended Dr. Makowskis deposition. Based upon his review, Dr. Dravid has concluded that
there are serious questions about the accuracy, reliability and overall validity of Dr.
Makowskis work, and that Dr. Makowskis method of analysis simply does not provide an
adequate foundation for definitive statements about the presence or absence of particular
ingredients in Blue Buffalos pet foods. (See Exhibit B hereto). In short, Dr. Makowskis tests
are the epitome of junk science. They are unlikely to be admissible as expert opinion in any
legal proceeding, and certainly do not support the categorical assertions in Nestl Purinas smear
campaign against Blue Buffalo.
91.
As set forth above, Nestl Purina and the other Counterclaim Defendants either
knew or should have known the serious flaws relating to Dr. Makowksis tests before they
launched their smear campaign. Counterclaim Defendants never had, and certainly do not
currently have, a scientific basis on which to continue to disseminate their false claims about the
alleged inclusion of certain ingredients in Blue Buffalo pet foods. Because Dr. Makowskis tests
did not provide a reasonable basis to support the false and misleading claims in Nestl Purinas
campaign, the Counterclaim Defendants acted with, at the very least, reckless disregard for the
truth.
INJURY TO BLUE BUFFALO AND THE PUBLIC
92.
Counterclaim Defendants smear campaign is calculated to destroy the reputation
and goodwill of the Blue Buffalo brand. By spreading false claims about product ingredients and
maligning the credibility of the brand, Counterclaim Defendants seek to curtail the rapid growth
- 45 -
of Blue Buffalos business in the hope that this will stem the exodus of Nestl Purina customers
to Blue Buffalo, and divert sales toward Nestl Purinas products.
93.
Blue Buffalo and its owners have invested large sums of money to launch and
grow the Blue Buffalo brand. Blue Buffalo is now the number one natural pet food and the
number one specialty brand in pet specialty stores across the United States, as well as the fastestgrowing major pet food company in the United States. The companys success and brand
identity rest on its reputation for transparency and honesty, as well as its refusal to use the same
type of low-cost, low-quality ingredients used by competitors such as Nestl Purina. If
Counterclaim Defendants false advertising campaign continues unchecked, Blue Buffalo will
lose sales and profits and will suffer a loss of reputation and goodwill that will destroy the
considerable value of the companys brand equity and will not be fully compensable through
monetary damages.
94.
In addition to generating substantial sales and profits, Blue Buffalos products
currently provide American pet owners with healthy, natural, high-quality alternatives to the
engineered, low-cost pet foods that constitute the majority of the market. Unless curtailed by
this Court, Counterclaim Defendants false advertising campaign will induce consumers to make
purchasing decisions and potentially incur costs based on Counterclaim Defendants false and
misleading representations about the composition and sourcing of Blue Buffalos products.
FIRST CLAIM FOR RELIEF
Violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a) against all Counterclaim
Defendants
95.
Blue Buffalo repeats and realleges each and every allegation contained above as if
the same were set forth fully herein.
- 46 -
96.
In connection with Blue Buffalos products, which are offered in interstate
commerce, Counterclaim Defendants have made false and misleading descriptions or

representations of fact. These false or misleading statements misrepresent the nature,
characteristics, or qualities of Blue Buffalos products, manufacturing processes, and/or
marketing practices. Counterclaim Defendants statements are expressly false, impliedly false,
or both.
97.
Counterclaim Defendants false and misleading statements have deceived, or have
the tendency to deceive, a substantial portion of the intended audience about matters that are
material to purchasing decisions.
98.
Counterclaim Defendants false and misleading statements are made in
commercial advertising and promotion in interstate commerce and violate Section 43(a) of the
Lanham Act, 15 U.S.C. 1125(a).
99.
Blue Buffalo is likely to suffer, has suffered, and will continue to suffer damages
and irreparable injuries as a result of Counterclaim Defendants wrongful acts.

SECOND CLAIM FOR RELIEF
Unfair Competition Under Missouri Common Law Against All Counterclaim Defendants
100.

101.
By reason of the foregoing, Counterclaim Defendants have engaged in unfair
competition and product disparagement in violation of the common law of the State of Missouri.
102.
Counterclaim Defendants have engaged in deceptive marketing practices,
including advertising their goods in a way likely to deceive or mislead prospective patrons to the
detriment of Blue Buffalo. Such deceptive practices have caused harm to the commercial
relations of Blue Buffalo.
- 47 -
THIRD CLAIM FOR RELIEF

Injurious Falsehood Under Missouri Common Law Against All Counterclaim Defendants
103.

104.
Counterclaim Defendants have published false statements that are harmful to Blue
Buffalos commercial and reputational interests.

105.
Counterclaim Defendants intended for the publication of these false statements to
result in pecuniary harm to Blue Buffalo. Alternatively, Counterclaim Defendants recognized or

should have recognized that publication of these false statements was likely to result in pecuniary
harm to Blue Buffalo.
106.
Counterclaim Defendants knew that their published statements were false, or
acted in reckless disregard of the truth or falsity of the statements.

107.

FOURTH CLAIM FOR RELIEF
Defamation Under Missouri Common Law Against All Counterclaim Defendants
108.

109.
Counterclaim Defendants have published false statements identifying Blue
Buffalo that are harmful to Blue Buffalo's commercial and reputational interests.
110.
result in reputational harm to Blue Buffalo. Alternatively, Counterclaim Defendants recognized

or should have recognized that the publication of these false statements was likely to result in
reputational harm to Blue Buffalo.
- 48 -
111.
acted in reckless disregard or negligence of the truth or falsity of the statements.

112.
Counterclaim Defendants acted with actual malice by publishing these false
statements by acting with at least reckless disregard of the truth or falsity of the statements.
113.
and irreparable injuries, including injuries to Blue Buffalo's reputation, as a result of

Counterclaim Defendant's wrongful acts.
FIFTH CLAIM FOR RELIEF
Unjust Enrichment Under Missouri Common Law Against All Counterclaim Defendants
114.

115.
Counterclaim Defendants have benefited by their false and misleading statements
at Blue Buffalos expense.

116.
Counterclaim Defendants unjustly have not compensated or paid Blue Buffalo for
the benefits of those false and misleading statements.

117.
Counterclaim Defendants benefited from their failure to pay or compensate Blue
Buffalo.
SIXTH CLAIM FOR RELIEF
Unfair Competition Under Connecticut Common Law Against Nestl Purina
118.

119.
In connection with Blue Buffalos products, which are offered in the State of
Connecticut, Counterclaim Defendants have made false and misleading descriptions or

- 49 -

or both.
120.
Counterclaim Defendants false and misleading statements have deceived, or have
the tendency to deceive, a substantial portion of the intended audience about matters that are
material to purchasing decisions.
121.
Counterclaim Defendants false and misleading statements are made in
commercial advertising and promotion in the State of Connecticut.

122.

SEVENTH CLAIM FOR RELIEF
Defamation Under Connecticut Common Law Against All Counterclaim Defendants
123.

124.
Counterclaim Defendants have published false and defamatory statements
regarding Blue Buffalo and its products to third persons throughout the United States, including
Connecticut. Those statements identified Blue Buffalo to third persons.
125.
result in reputational harm to Blue Buffalo. Alternatively, Counterclaim Defendants recognized

or should have recognized that the publication of these false statements was likely to result in
reputational harm to Blue Buffalo.
126.
acted in reckless disregard or negligence of the truth or falsity of the statements.
- 50 -
127.
Counterclaim Defendants acted with actual malice by publishing these false
statements with, at a minimum, reckless disregard for the truth or falsity of the publication.
128.
Blue Buffalo is likely to suffer, has suffered, and will continue to suffer
reputational injuries as a result of Counterclaim Defendants wrongful acts.

EIGHTH CLAIM FOR RELIEF
Violations of the Connecticut Unfair Trade Practices Act Against All Counterclaim Defendants
129.

130.
Counterclaim Defendants have made false and misleading descriptions or

or both.
131.
Counterclaim Defendants have therefore engaged in misleading, unfair or
deceptive acts or practices in the conduct of trade or commerce throughout the United States in
violation of CONN. GEN. STAT. 42-110a et seq.
132.
result in pecuniary harm to Blue Buffalo business or trade interests. Alternatively, Counterclaim
Defendants recognized or should have recognized that publication of these false statements was
likely to result in pecuniary harm to Blue Buffalo.
133.
These wrongful acts have indeed caused Blue Buffalo to suffer ascertainable loss
of money or property within the State of Connecticut.

WHEREFORE, Blue Buffalo demands judgment against Counterclaim Defendants and
requests relief as follows:
- 51 -
A.
That judgment be entered in Blue Buffalos favor on each Claim in
the Counterclaim.
B.
Orders preliminarily and permanently enjoining Counterclaim
Defendants, their officers, agents, servants, employees, attorneys, and all others in active
concert or participation with them, from:
i.
disseminating the Honesty Website (attached as Exhibit J),
the Direct E-mails (an example of which is attached as Exhibit P), the Google Ads
(examples of which are attached as Exhibit R) and any other advertisements
substantially similar thereto;
ii.
claiming, whether directly or by implication, in any
advertising or promotional communication, that (1) any Blue Buffalo products

contain poultry or chicken by-product meal; or (2) any Blue Buffalo products
contain corn; or (3) any Blue Buffalo products promoted as grain-free contain
grain; or (4) any Blue Buffalo products are manufactured outside the United
States; or (5) any Blue Buffalo products are unsafe, less healthy, or otherwise of
lower quality by virtue of having been manufactured by third-party
manufacturers.
iii.
claiming, whether directly or by implication, in any
advertising or promotional communication, that Blue Buffalos advertising or

labeling for its pet food products is false or misleading, or that consumers should
disbelieve Blue Buffalos statements concerning its or its competitors pet food
products.
C.
An order directing an accounting of all gains, profits, savings and

- 52 -
advantages realized by Nestl Purina from its aforesaid acts of false advertising, unfair
competition and other violations of law as detailed above;
D.
An order directing Counterclaim Defendants to disseminate, in a
form to be approved by the Court, advertising designed to correct the false and
misleading claims made by Counterclaim Defendants in their advertising;
E.
An award of Blue Buffalos damages attributable to Counterclaim
Defendants false and deceptive advertising, in an amount to be determined at trial;

F.
An award to Blue Buffalo of all profits earned by Nestl Purina
attributable to its false advertising, in an amount to be determined at trial;

G.
A declaration that this is an exceptional case due to the willful
nature of Counterclaim Defendants false advertising, and awarding enhanced damages

and attorneys fees to Blue Buffalo pursuant to 15 U.S.C. 1117, and punitive damages
and attorneys fees to the full extent allowable under state statutory and common law;
H.
An order pursuant to Section 34(a) of the Lanham Act, 15 U.S.C.
1116(a) requiring Counterclaim Defendants to serve upon Blue Buffalo, within thirty (30)
days after service on Counterclaim Defendants of an injunction or such extended period
as the Court may direct, a report in writing under oath setting forth in detail the manner
and form in which Counterclaim Defendants have complied with the injunction;
I.
Awarding Blue Buffalo prejudgment and post-judgment interest on
any monetary award in this action;

J.
An award of the costs and disbursements of this action; and
K.
Such other and further relief as the Court may deem just and
proper.
- 53 -
THIRD-PARTY COMPLAINT AGAINST WILBUR-ELLIS AND DIVERSIFIED

Blue Buffalo, for its third-party complaint against Wilbur-Ellis Company (WilburEllis) and Diversified Ingredients, Inc. (Diversified) (together, the Third-Party Defendants),
respectfully alleges as follows:
INTRODUCTION
134.
As set forth above, Nestl Purinas pre-complaint laboratory testing was a
pseudoscientific sham that provided no good-faith basis to make any claims about Blue Buffalos
productslet alone to disparage Blue Buffalos character and honesty.
135.
But even a broken watch is right twice a day. Post-complaint discovery from two
of Blue Buffalos upstream suppliers, Wilbur-Ellis and Diversified, has revealed that one or both
of them were engaged in a years-long pattern of misconduct that resulted in the presence of
poultry by-product meal in some Blue Buffalo products. For a substantial period of time prior to
May 2014, Wilbur-Ellis and Diversified passed off poultry by-product meal and/or feathermeal
as more expensive chicken and turkey meal in numerous shipments sent from Wilbur-Elliss
Rosser, Texas plant to Blue Buffalos manufacturing facilities. The substitution was both
unknown and unknowable to Blue Buffalo at the time it occurred.
136.
This misconduct violated both suppliers binding express contracts. Indeed, on
multiple occasions, both Wilbur-Ellis and Diversified provided written guarantees to Blue
Buffalo that the chicken and turkey meal that they were providing exclu[ded] . . . feathers,
heads, feet, and entrails, except in unavoidable trace amounts.
- 54 -
137.
In October 2014, after its conduct had been revealed through discovery, Wilbur-
Ellis issued a public statement acknowledging that its facility in Rosser, Texas had
mislabel[ed] . . . pet food ingredients that were sold to companies that formulate food for pets.1
138.
Emails produced in discovery put it more bluntly. In those emails, Diversified
recognized that both suppliers have breached [their] contract with Blue Buffalo; that their
misconduct is likely the smoking gun behind Nestl Purinas lawsuit; and that, if Diversified
and Wilbur . . . have to answer . . . in litigation with Blue, [t]he liabilities will be enormous.
(Exhibit V.)
139.
Those liabilities are readily apparent. Because Blue Buffalo paid for a product it
did not receive, Blue Buffalo was deprived of the benefit of its bargain with respect to numerous
ingredient shipments. Third-Party Defendants conduct has also caused, and will continue to
cause, damage to Blue Buffalos consumer goodwill. In addition, it has exposed Blue Buffalo to
potential liability, both in this action and in a number of copycat class actions filed by endconsumers, and has forced Blue Buffalo to incur significant legal expenses in defense of these
actions. Wilbur-Ellis and Diversified must make Blue Buffalo whole for these foreseeable
consequences of their unlawful behavior.
PARTIES
140.
Third-Party Plaintiff Blue Buffalo is a Delaware corporation with headquarters at
11 River Road, Wilton, Connecticut 06897. Blue Buffalo is in the business of developing,
marketing and selling pet food, pet treats, and related products in the United States and Canada.
Lisa Brown, Blue Buffalo says supplier mislabeled some ingredients, St. Louis Post-Dispatch, Oct. 15,
2014, http://www.stltoday.com/business/local/blue-buffalo-says-supplier-mislabeled-someingredients/article_3902b014-e04c-5ae8-90f3-ab601b674bd2.html (accessed May 13, 2015).
- 55 -
141.
Third-Party Defendant Wilbur-Ellis is a California corporation with headquarters
at 345 California Street, Floor 27, San Francisco, California 94104. Wilbur-Ellis is an
international marketer and distributor of agricultural products and animal feed with more than
4,000 employees and annual sales in excess of $3 billion. Its feed division provides ingredients
to many manufacturers in the pet-food industry.
142.
Third-Party Defendant Diversified is a Missouri corporation with headquarters at
870 Woods Mill Road, Ballwin, Missouri 63011. Diversified serves as a broker to pet-food
manufacturers. In that capacity, it sources ingredients; serves as a contractual intermediary
between the ingredient producer and the pet-food manufacturer; and handles the logistics of
ingredient purchases, including shipment.
JURISDICTION AND VENUE
143.
This Court has subject matter jurisdiction over Blue Buffalos third-party claims
against Wilbur-Ellis and Diversified pursuant to 28 U.S.C. 1332(a)(1). There is complete

diversity between Blue Buffalo and the Third-Party Defendants because Blue Buffalo is a citizen
of Delaware and Connecticut, while Wilbur-Ellis is a citizen of California only, and Diversified
is a citizen of Missouri only. The matter in controversy exceeds the sum or value of $75,000.
144.
This court also has subject matter jurisdiction over Blue Buffalos third-party
claims against Wilbur-Ellis and Diversified pursuant to 28 U.S.C. 1367(a).

145.
Venue is proper in this District under 28 U.S.C. 1391(b)(2) because a
substantial part of the events or omissions giving rise to this action have occurred and/or will
occur within this District. Because venue is proper in this District with respect to the underlying
first-party claims, venue over Blue Buffalos third-party claims against Wilbur-Ellis and
Diversified is also proper in this District under the doctrine of ancillary venue.
- 56 -
BLUE BUFFALO AND ITS PRODUCTS

146.
As described above, Blue Buffalo was founded in 2002 with the mission to bring
transparency to the pet food industry by educating consumers about the ingredients in pet foods
and offering them a better choice. Blue Buffalo has built its strong brand identity by establishing
relationships of trust and transparency with pet ownersin particular, with respect to its
ingredients.
147.
A critical element of Blue Buffalos brand identity is the difference between Blue
Buffalos pet food formulas and the formulas of the cost-engineered, mass-produced pet-food
products made by traditional pet-food manufacturers.
148.
For example, unlike many leading brands, all Blue Buffalo products feature
deboned chicken, lamb, fish or other high quality real meats as the first ingredient. Blue Buffalo
uses only whole grains, rather than the less expensive fractionated grains used in many pet
foods. And unlike many leading brands, Blue Buffalo product formulas contain no artificial
colors, flavors, or preservatives.
149.
In addition, unlike many leading brands, Blue Buffalos dry pet food formulas
contain no poultry by-product meals. The Association of American Feed Control Officials
(AAFCO) defines poultry by-product meal as the ground, rendered, clean parts of the carcass
of slaughtered poultry, such as necks, feet, undeveloped eggs and intestines, exclusive of
feathers, except in such amounts as might occur unavoidably in good processing practices.
(AAFCO 2014 Official Publication at 356 (emphasis added).)
150.
Instead of poultry by-product meal, some of Blue Buffalos dry pet food formulas
contain poultry meal (i.e., chicken or turkey meal) in addition to deboned meat and other highquality ingredients. AAFCO defines poultry meal as the dry rendered product from a
- 57 -
combination of clean flesh and skin with or without the accompanying bone, derived from the
parts of whole carcasses of poultry or a combination thereof, exclusive of feathers, heads, feet,
and entrails. (AAFCO 2014 Official Publication at 361 (emphasis added).)
151.
Consistent with its product formulas, Blue Buffalo labels and advertises its dry
pet food products as containing no chicken or poultry by-product meals, and has done so at all
relevant times.
BLUE BUFFALOS CONTRACTS WITH DIVERSIFIED AND WILBUR-ELLIS
152.
To source the chicken and turkey meal needed for its dry pet food products, Blue
Buffalo has depended on several suppliers, including Wilbur-Ellis and Diversified.

153.
Both Wilbur-Ellis and Diversified hold themselves out as experts in pet-food
ingredient production and/or sourcing, and as having first-rate quality control. For example, on
its website, Wilbur-Ellis claims that its expert[ise] in quality control differentiate[s] us from
the rest, and boasts processes . . . [that] closely track products from origin to Wilbur Ellis
operations to customers to monitor[] for quality.2 Diversified similarly states on its website
that quality can never be sacrificed for cost.3 Blue Buffalo reasonably and justifiably trusted
Wilbur-Ellis and Diversified to provide high-quality ingredients consistent with Blue Buffalos
specifications.
154.
Beginning in 2011, Blue Buffalo entered into a series of written purchase orders
with Diversified to procure chicken meal and turkey meal for use in Blue Buffalos pet food
products. These written purchase orders constitute binding and enforceable contracts between
Blue Buffalo and Diversified.
Wilbur-Ellis Company Safety & Regulations, http://www.wilbur-ellisfeed.com/pages/about-us/safetyand-regulations.aspx (accessed May 12, 2015)
2
Diversified Ingredients Our Company, http://www.diversifiedingredients.com/our-company.html

(accessed May 12, 2015).
3
- 58 -
155.
As stated above, AAFCO defines poultry meal and poultry by-product meal as
two very different products. AAFCO is a quasi-regulatory body that sets industry-wide
standards for animal feed and pet food. The terms and definitions published in the [AAFCO]
Official Publication are generally accepted throughout the United States. 2 CSR 70-30.015,
Statement of Purpose. Indeed, many statesincluding Missouriincorporate AAFCOs
ingredient definitions into their regulatory codes or otherwise accord them the force of law. See
2 CSR 70-30.015(1) ([T]he Official Publication of AAFCO[] is written to establish uniform
methods for regulating animal feeds. The feed terms, ingredient names . . . and ingredient
definitions used in the publication are adopted for administration of the Missouri Commercial
Feed Law.).
156.
Thus, when Diversified agreed to source chicken meal or turkey meal for Blue
Buffalo, both parties understood, from the use of those terms alone, that the product in question
was not to include any material amount of feathers, heads, feet, or entrails.
157.
Diversified also had other reasons to know that poultry by-product meals were
unacceptable to Blue Buffalo. Diversified was well aware that Blue Buffalo labeled and
advertised its pet foods to the public as free of poultry by-product meals. Accordingly,
Diversified knew that the absence of feathers, heads, feet and entrails was a sine qua non of Blue
Buffalos willingness to purchase poultry meal from Diversified for use in those pet food
products.
158.
Furthermore, on multiple occasions in connection with these purchases, Blue
Buffalo required Diversified to sign Raw Material Specification sheets that provided that the
chicken and turkey meal sourced by Diversified must exclu[de] . . . feathers, heads, feet and
entrails, except for mere trace amounts that might be unavoidabl[e] notwithstanding good
- 59 -
manufacturing practices. These specification sheets form part of the binding contracts between
Blue Buffalo and Diversified.
159.
Consistent with the parties mutual understanding, Diversified charged Blue
Buffalo the higher prevailing prices associated with chicken and turkey meal, and not the lower
prevailing prices associated with poultry by-product meal.
160.
To fulfill Blue Buffalos purchase orders, Diversified turned to Wilbur-Ellis.
Diversified and Wilbur-Ellis entered into binding written contracts for the purchase of chicken
and turkey meal for Diversifieds subsequent provision to Blue Buffalo.
161.
At all relevant times, Wilbur-Ellis knew that the contracted-for chicken and
turkey meal was intended for use by Blue Buffalo; selected the contracted-for chicken and turkey
meal specifically for Blue Buffalo; and intended its contractual performance to benefit Blue
Buffalo. Blue Buffalo was therefore an intended third-party beneficiary of these contracts.
162.
Like Diversified, Wilbur-Ellis was aware that Blue Buffalo labeled and advertised
its pet foods as free of poultry by-product meals. Accordingly, Wilbur-Ellis, too, knew that the
absence of feathers, heads, feet and entrails was a sine qua non of Blue Buffalos willingness to
purchase the poultry meal in question for use in its pet foods.
163.
Moreover, on information and belief, Diversified expressly specified to Wilbur-
Ellis that the chicken and turkey meal Wilbur-Ellis provided for the benefit of Blue Buffalo must
be free of any material amount of feathers, heads, feet and entrails.
164.
For example, contracts for chicken meal between Diversified and Wilbur Ellis
dated March 6, 2013 expressly provide that the product in question must exclude feathers,
heads, feet and entrails and must comply with Blue Buffalo Specification[s].
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165.
On many occasions, Wilbur-Ellis and Blue Buffalo communicated directly to
arrange orders and/or to discuss Blue Buffalos requirements.

166.
In June 2011, a Wilbur-Ellis marketer emailed Blue Buffalo Procurement
Manager Leonard Brennan, noting Wilbur Elliss ability to supply chicken meal and poultry
meal from its facility at Rosser, Texas, and inquiring into Blues needs.
167.
On January 4, 2012, Brennan sent Wilbur-Ellis Blue Buffalos desired quantities
of chicken meal and a Raw Material Specification sheet that provided that Chicken Meal . . .
exclu[des] . . . feathers, heads, feet and entrails; except i[n] such trace amounts which may
occur unavoidably in good manufacturing practices.
168.
On March 6, 2013, Brennan sent an email to Wilbur-Ellis, stating: Would you
have any volume available for Chicken Meal, Low Ash Chicken [M]eal and Turkey Meal in
2013 that I can contract? Brennan specified Blue Buffalos desired quantities of all three
ingredients and attached Raw Material Specification sheets that provided that each of these
ingredients exclu[des] . . . feathers, heads, feet, and entrails; except in such trace amounts
which may occur unavoidably in good manufacturing practices.
169.
On May 6, 2013, Blue Buffalo procurement analyst Danielle Hemings sent an
email to Wilbur-Ellis attaching the above-mentioned Raw Material Specification sheets and
reminding Wilbur-Ellis to comply [with] the requested criteria.
170.
On June 26, 2013, Wilbur-Ellis Quality Manager Eric Johansen signed a
Supplier Certificate on Blue Buffalo letterhead that acknowledged that Wilbur-Ellis was
providing Chicken Meal and Turkey Meal to Blue Buffalo and taking measures to prevent
contamination dangers. At the same time, Mr. Johansen filled out Blue Buffalo Ingredient
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Information Request Form, affirming that Wilbur-Ellis was providing Blue Buffalo with
chicken meal and Turkey Meal.
171.
On multiple occasionsincluding, most recently, April 24, 2014 and May 2,
2014Mr. Johansen signed, on behalf of Wilbur-Ellis, Blue Buffalos Raw Material

Specification sheets, which expressly stated that the product shipped to Blue Buffalo
exclu[des] . . . feathers, heads, feet, and entrails.
172.
On multiple occasionsincluding, most recently, April 24, 2014 and May 2,
2014Wilbur-Ellis provided Blue Buffalo with Technical Data Sheets for its Chicken Meal
and Turkey Meal. These sheets, printed on Wilbur-Elliss letterhead, expressly described
those products as exclu[ding] . . . feathers, heads, feet, and entrails.
173.
Wilbur-Ellis also provided Blue Buffalo with signed Letter[s] of Continuing
Guaranteemost recently, on May 2, 2014warranting that its Chicken Meal and Turkey
Meal compl[ied] with all applicable local, state, and federal laws, rules, and regulations.
Such rules and regulations include AAFCOs ingredient definitions, which are incorporated into
state law by reference.
174.
In September 2013, employees of Wilbur-Ellis visited Blue Buffalos
headquarters and presented a PowerPoint slide deck titled Blue Buffalo & Wilbur-Ellis
Company: Partners in Pet Nutrition. A slide titled Sourcing Excellence touted Wilbur-Elliss
ability to provide Chicken & Turkey Meals, and the subsequent slide promised AAFCO &
FDA approved Ingredients.
175.
These and other direct communications constitute binding and enforceable
contracts between Blue Buffalo and Wilbur-Ellis.
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176.
As a result of the communications described above, there can be no dispute that
the absence of any material amount of feathers and by-product meals was an essential term of the
parties contracts. As Diversified employee Collin McAtee wrote to Wilbur-Ellis employee
Darwin Rusu on May 15, 2014: if . . . By[-Product] . . . [was] listed as even [a] potential
ingredient[] for the Chicken Meal and/or Turkey Meal [shipped to Blue Buffalo], theres no
way . . . Blue wouldve agreed to it. (Exhibit V.)
THE FRAUDULENT SUBSTITUTION SCHEME
177.
Despite its express assurances, Wilbur-Ellis was engaged in a scheme designed to
bilk Blue Buffalo (and other pet-food manufacturers) out of substantial sums of money by
substituting low-cost by-product meal and/or feathermeal for the high-cost poultry meal that
had been ordered and paid for.
178.
Documents recently produced in discovery in this action show that, for a
substantial period of time up to May 2014, Wilbur-Ellis made more than 1900 shipments of
chicken products from its Rosser, Texas plant to Blue Buffalos co-manufacturing facilities using
Diversified as an intermediary. Although Wilbur-Ellis and Diversified represented those
shipments to be chicken meal, the documents indicate that all of them were in fact chicken byproduct meal, or a mix of chicken by-product meal and so-called feathermeal (i.e., hydrolyzed
poultry feathers).
179.
Documents produced in discovery further show that, for a substantial period of
time up to May 2014, Wilbur-Ellis made more than 600 shipments of turkey products from its
Rosser, Texas plant to Blue Buffalos manufacturing facilities using Diversified as an
intermediary. Although Wilbur-Ellis and Diversified represented those shipments to be turkey
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meal, the documents indicate that a substantial majority of them were a blend of turkey meal and
turkey by-product meal.
180.
As described above, both Wilbur-Ellis and Diversified were fully aware that any
material amount of by-product meal or feathers was completely unacceptable to Blue Buffalo,
and that Blue Buffalo would never have taken delivery of the shipments or paid for them had it
known the truth.
181.
Blue Buffalo had no independent ability to determine that the shipments in
question were not as represented. There is no validated testing method to distinguish poultry
meal from poultry by-product meal. Blue Buffalo, therefore, had no choice but to rely on the
professed expertise of Wilbur-Ellis and Diversified, and on their express representations
concerning the product. That reliance was reasonable and justified, and both Wilbur-Ellis and
Diversified were aware of it.
THE SCHEMES UNRAVELING AND THE ATTEMPTED COVER-UP
182.
Nestl Purina filed its initial complaint in this case on May 6, 2014. Recognizing
that their fraud was about to be unmasked, Wilbur-Ellis personnel immediately began to
exchange panicked emails with one another.
183.
On that date, citing a press release about the complaint, Henry Rychlik, a Wilbur-
Ellis quality manager, emailed Doug Haning, a manager of the Rosser plant: A can of worms
[is] about to be unleashed . . . . Shit [is] gonna hit the fan. How long can we tie this up in
court[?] (Exhibit W.)
184.
That same day, Cory Salter, a business unit manager at Wilbur-Ellis, emailed a
news story about the complaint to Ronald Salter, formerly the president of the Feed Division at
Wilbur-Ellis, with the subject line: yikes. The email itself stated: [I]t[]s going to be bad if
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this gets traction. It will hurt bad. I[]m sure 50% of our [R]osser shit goes to them
indirectly[.] [N]ot good[.] (Exhibit X.)
185.
Also that day, Tomas Belloso, a Wilbur-Ellis regulatory compliance manager,
wrote to a group of Wilbur-Ellis employees: Hopefully this will open some eyes around
here.Especially if Purina ends up winning! (Exhibit Y.)
186.
Over the next few days, Wilbur-Ellis began investigating the potential impact of
the substitution scheme on Blue Buffalo. Quality manager Eric Johansen emailed regulatory
compliance manager Tomas Belloso asking him to run a list/ volumes of ingredients/products
that we sell direct ship AND through our plants to Blue Buffalo. Johansen also emailed
business unit manager Cory Salter, explaining that we want to understand where we are with
ingredients that go into BB products. Re: Purina issue.
187.
Diversified, too, immediately recognized its potential exposure. Beginning on
May 6, 2014the day the complaint was filedDiversified employee Collin McAtee sent a
series of increasingly frantic emails to Wilbur-Ellis.
188.
On May 6, McAtee emailed Wilbur-Ellis employee Aaron Williams, asking
[w]hat sort of Quality Control procedures . . . Wilbur/Rosser ha[s] in place to check that [its]
Chicken Meal and Turkey Meal . . . are exclusive of feathers, heads, feet, and entrails?
McAtee noted the filing of this lawsuit, and stated that he want[ed] to get out ahead of this.
Upon receiving McAtees email, Williams forwarded it to the Rosser plants management,
asking: Any ideas as to how to go about replying to this?
189.
That evening, with no response from Wilbur-Ellis, McAtee wrote again, asking
Are you working on this for me? The next dayMay 7McAtee wrote again, asking:
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Anyone home? Please let me know that you have received this and are making inquiries.
Williams sent a one-sentence reply: Yes, I passed it on and I am waiting for a response.
190.
On the morning of May 8, McAtee wrote back: I need an answer today on this
please. That afternoon, he wrote again: Got these yet? McAtee also emailed Wilbur-Ellis
quality manager Henry Rychlik, asking him to send him a list of all of the poultry, chicken, and
by-product meals processed at the Rosser plant.
191.
While Wilbur-Ellis stalled, questions began to come in from other downstream
customers of Wilbur-Ellis and Diversified. On May 8, 2014, a manager at WellPetwhich

markets Wellness brand pet foods and similarly advertises that it does not use poultry by-product
mealsemailed Wilbur-Ellis and Diversified, seeking to confirm that there is no exposure to
our business related to by-products.
192.
McAtee forwarded the WellPet inquiry to Wilbur Elliss Rosser plant manager,
Doug Haning, stating: They are all coming with the questions . . . I cant stress enough to make
sure we are all on the same page here. (Exhibit Z.) Wilbur-Ellis quality manager Eric
Johansen remarked in an internal email: The fun has begun. WellPet is now asking us
questions. We best be ready as a group. (Exhibit AA.)
193.
That same day, employees of American Nutrition, a contract manufacturer that
produces pet foods for many well-known brands, discussed Purinas lawsuit via email with
Wilbur-Ellis account manager Brent Quintin. One of the American Nutrition employees
remarked that industry adjustment[s] are needed, and Quintin responded that he agreed.
Quintin forwarded the conversation to several high-level Wilbur-Ellis employees, who were
outraged at Quintins willingness to discuss these issues with outsiders. Business unit manager
Cory Salter wrote to manager Darwin Rusu: Brent [Quintin] needs to stop. Wtf. Rusu
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responded: Cant believe this!!! Salter replied: This is not good we need to shut the fck up
and stay clean[.] What was he thinking? Rusu rejoined: He is fucked. (Exhibit BB.)
194.
The following dayMay 9Wilbur-Ellis at last responded to the inquiries of
Collin McAtee at Diversified. In a curt two-sentence e-mail, Darwin Rusu told McAtee: [T]o
the best of our knowledge the products we have supplied to you meet the specifications agreed
upon, as reflected in our contracts.
195.
Three days later, on May 12, McAtee responded to Rusu, emphasizing that [p]er
the spec sheets and documentation provided and agreed upon by Diversified, Wilbur, and Blue
Buffalo, product originating from the Rosser facility for shipment to Blue Buffalo should be
exclusive of feathers, heads, feet, and entrails; except in such trace amounts which may occur
unavoidably in good manufacturing practices. McAtee urged Rusu: Please make sure on your
side, that is whats happening . . . . Shipping material with more than unavoidable trace amounts
of feathers, heads, feet or entrails would be out of specification . . . . Lets make sure were all on
the same page so we can continue this business. (Exhibit V.)
196.
That same day, McAtee emailed Wilbur-Ellis quality manager Eric Johansen,
attaching Blue Buffalos specification sheets and asking him to reconfirm that the chicken and
turkey meals that Wilbur-Ellis produced for Blue Buffalo meet those specifications. Johansen
forwarded the email to Rosser plant manager Doug Haning, who responded: Do not answer
him[.] Johansen responded: That was my thought exactly. (Exhibit CC.)
197.
Meanwhile, Blue Buffalos head of procurement, Phil de Bruyn, had emailed
Diversified asking it to confirm that all shipments of chicken meal (high and low ash) and
turkey meal from Diversified Ingredients against [Blue Buffalo] commitments satisfy the
attached agreed upon specifications. Once again, those attached specifications provided that the
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products must exclu[de] . . . feathers, heads, feet and entrails, except in unavoidable trace
amounts. On May 12, 2014, Collin McAtee responded to de Bruyn, stating that [t]o the best of
our knowledge and belief, all shipments of Chicken Meal (high and low ash) and Turkey Meal
from Diversified Ingredients against Blue Buffalo commitments satisfy the attached, agreed upon
specifications.
198.
The next dayMay 13McAtee reached out to Doug Haning at Wilbur-Ellis,
writing:
Lets make sure were all on the same page as we work together to
continue the Blue Buffalo business well into the future and dont
open ourselves up to any problems.
Blue Buffalos description and specification requirements . . .
[forbid] feathers, heads, feet and entrails; except i[n] such trace
amounts which may occur unavoidably in good manufacturing
practices.
Wilbur has signed off on Blue Buffalos specification sheets as
well as many QA [i.e., quality assurance] forms that Wilburs
material meets Blues required specifications. . . . For now, we
need to make sure we are shipping product that is meeting or
exceeding their specifications we have in hand. That is what they
require of Diversified and thats what I require of you guys.
(Exhibit DD.)
199.
Haning wrote back to McAtee later that day. He acknowledged that the chicken
and turkey products that Wilbur-Ellis had been selling to Blue Buffalo via Diversified contain
some by-product meal, but claimed that McAtee had been aware of that fact all along.
(Exhibit EE.)
200.
McAtee responded, pointing out that Wilbur-Ellis had signed off on Blues spec
requirements each year. (Id.)
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201.
In reply, Haning acknowledged that McAtee was correct [that] Wilbur-Ellis did
sign BB [i.e., Blue Buffalos] specs, but claimed that those specifications were not binding on
Wilbur-Ellis because it d[id] not sell to Blue directly. (Id.)
202.
Neither Mr. McAtee nor anyone else at Diversified informed Blue Buffalo of
Wilbur-Elliss admission. Instead, the following dayMay 14McAtee emailed Haning again,
stating:
After seeing what the blends consist of with byproduct meal and
feather meal, theres no way I can knowingly ship that. . . . Please
get everything hammered out going forward and well get thru this.
. . . We need to work together to keep things going and get it all to
a well oiled machine. This whole situation is brutal with all the
panic everywhere, but lets work together to weather the storm.
(Exhibit FF.)
203.
On May 15, McAtee emailed Wilbur-Elliss Mr. Rusu, recognizing that both
Diversified and Wilbur-Ellis had violated their express obligations to Blue Buffalo:
I think its overdue that you and I talk. . . . We have millions of
dollars at stake here and need to work this out. . . . . Wilbur was
well aware of where these products were being shipped and
signed spec sheets and went through 2 different audits with Blue.
There was no mention of having more than trace amounts of
Byproduct Meal in it and especially no mention of any feathermeal
. . . . [I]f Chicken By[-Product] and Feather were listed as even
potential ingredients for the Chicken Meal and/or Turkey Meal,
theres no way we wouldve bought it and/or Blue wouldve
agreed to that.
(Exhibit V.)
204.
However, instead of alerting Blue Buffalo to the situation, McAtee urged Rusu to
continue shipping product to Blue Buffalo so that Blue Buffalo would not suspect that anything
was wrong:
I think if we work together, we can band-aid this situation. . . . I
have several trucks currently at Rosser waiting to be loaded, and
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we need to move forward with filling out the rest of the contracts
[for Blue Buffalo] . . . to keep things going smoothly.
(Id.)
205.
McAtee described the dire circumstances that would result for both Wilbur-Ellis
and Diversified if the companies did not cooperate in the cover-up:

If you are not going to fill these contracts [for Blue Buffalo] for
any reason, then Im going to have to go to Blue to address the
breach of contract and undoubtedly divulge the details of what
was shipped and the possibility that Rossers material is the
smoking gun for their problems. That I do not want to do. If the
finger is pointed in that direction and then later verified to have
been the cause [of Nestl Purinas lawsuit], then Diversified and
Wilbur will both have to answer to this in litigation with Blue.
The liabilities in this could be enormous . . . . [I]t would
undoubtedly be in the several million dollars range.
(Id.)
206.
On May 20, Diversified and Wilbur-Ellis employees met in person at Wilbur-
Elliss Rosser facility. According to contemporaneous notes from the meeting, Diversified
asked if [Wilbur-Ellis] wanted [Diversified] to tell Blue [Buffalo] of [Wilbur-Elliss] nonperformance on contract. Wilbur-Ellis responded that Blue is your [i.e., Diversifieds]
customer & thus your decision to tell them whatever you want. Consistent with the tenor of
McAtees earlier emails, Diversified replied that it d[idnt] want to dwell on the past and
preferred to look at the future. (Exhibit GG.)
207.
Neither Diversified nor Wilbur-Ellis ever approached Blue Buffalo about the
fraud that had been perpetrated on it. It was only as a result of discovery in this lawsuit that the
true facts came to light.
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208.
Blue Buffalo first became aware of the initial details of Wilbur-Elliss scheme in
the fall of 2014. At that time, Blue Buffalo promptly stopped procuring ingredients from
Wilbur-Elliss Rosser, Texas facility.
209.
On October 14, 2014, Blue Buffalo issued the following public statement:
Blue Buffalo has recently learned from Wilbur-Ellis, a major U.S.
Company that supplies ingredients to us and many other wellknown brands of pet foods, that a Texas pet food ingredient
processing plant they own had mislabeled some of the ingredients
they shipped to their customers. So while their customers were
ordering and paying for 100% chicken meal, at times they were
receiving shipments that contained poultry by-product meal.
Since this Wilbur-Ellis plant was the source of some of our
chicken meal, we may have received some of these mislabeled
shipments, and there likely are numerous other pet food companies
who also received these mislabeled ingredients. The FDA has been
informed of this situation, and you may rest assured that this
mislabeling poses no health, safety or nutrition issue. And while
this is comforting, since the health and well-being of our dogs and
cats comes before anything else, the fact that any Blue Buffalo
food could include a mislabeled ingredient is totally unacceptable.
As a result, we have stopped doing business with this plant.
Although pet food companies are not required to inform consumers
of an incident such as this, where no safety or nutritional issues
exist, the Blue Buffalo way is to be transparent with you. So while
we have now learned that this mislabeling issue was corrected by
the supplier months ago, we believe that you have the right to
know about it.4
Although Wilbur-Ellis also supplied mislabeled ingredients to other pet food companies, no pet
food company aside from Blue Buffalo has come forward to acknowledge that its products were
affected by Wilbur-Elliss misconduct.
210.
The next day, Wilbur-Ellis publicly admitted that its facility in Rosser, Texas
had mislabel[ed] . . . pet food ingredients that were sold to companies that formulate food for
4
Letter to Pet Parents dated October 14, 2014, http://bluebuffalo.com/about-us/whats-new-at-blue/wilburellis-texas-plant/ (accessed May 15, 2015).
- 71 -
pets. At that time, Wilbur-Ellis attributed the problem to poor record-keeping and operational
processes.5
211.
After Wilbur-Ellis produced additional documents that detailed the number of
nonconforming shipments to Blue Buffalos co-manufacturers, Blue Buffalo issued another

statement to consumers explaining that these further disclosures had showed that a substantial
proportion of [Wilbur-Elliss] shipments to [Blue Buffalos] contract manufacturing facilities
prior to May 2014 were, in fact, mislabeled.6
212.
As a result of these events, Blue Buffalo has altogether ceased doing business
with Wilbur-Ellis.
INJURY TO BLUE BUFFALO
213.
At all relevant times, the market price for chicken meal and turkey meal was
significantly higher than the market price for poultry by-product meal. Thus, the Third-Party
Defendants conduct deprived Blue Buffalo of the benefit of its bargain and caused Blue Buffalo
substantial damages.
214.
The Third-Party Defendants conduct has also caused damage to Blue Buffalos
consumer goodwill. As described above, one of the pillars of Blue Buffalos brand identity is its
openness and transparency with consumersin particular, with respect to its ingredients. On
information and belief, the misconduct of Wilbur-Ellis and Diversified has jeopardized Blue
Buffalos relationship of trust with consumers and has injured Blue Buffalos reputation in the
marketplace, causing Blue Buffalo to lose sales and profits. These injuries were foreseeable to
Lisa Brown, Blue Buffalo says supplier mislabeled some ingredients, St. Louis Post-Dispatch, Oct. 15,
2014, http://www.stltoday.com/business/local/blue-buffalo-says-supplier-mislabeled-someingredients/article_3902b014-e04c-5ae8-90f3-ab601b674bd2.html (accessed May 13, 2015).
6
Letter to Pet Parents dated May 9, 2015, http://bluebuffalo.com/about-us/whats-new-at-blue/nestlepurina-lawsuit-response-5/ (accessed May 15, 2015).
- 72 -
Wilbur-Ellis and Diversified. Indeed, as the correspondence between Diversified and WilburEllis reflects, Blue Buffalos injuries were in fact foreseen by them.
215.
The Third-Party Defendants misconduct has exposed Blue Buffalo to potential
liability, both in this action and in a number of copycat false-advertising class actions filed by
end-consumers that are currently pending before this Court. See In re Blue Buffalo Company,
Ltd. Marketing and Sales Practices Litig., No. 4:14-md-02562-RWS (E.D. Mo.) To the extent
any liability is ultimately imposed on Blue Buffalo, this, too, was foreseeable to Wilbur-Ellis and
Diversified, and in fact foreseen by them.
216.
Blue Buffalo has suffered additional damages as a result of the wrongful acts of
Wilbur-Ellis and Diversified, the nature and amount of which will be ascertained through
discovery.
FIRST CLAIM FOR RELIEF
Breach of Contract (Against Wilbur-Ellis and Diversified)
217.

218.
Blue Buffalo entered into binding, enforceable contracts with both Diversified
and Wilbur-Ellis. In the alternative, Blue Buffalo entered into binding, enforceable contracts
with Diversified, and was an intended third-party beneficiary of the binding, enforceable
contracts between Diversified and Wilbur-Ellis.
219.
These contracts specified, among other things, that Wilbur-Ellis and Diversified
would provide chicken meal and turkey meal that comply with AAFCO definitions, and/or
that exclu[de] . . . feathers, heads, feet, and entrails; except in such trace amounts which may
occur unavoidably in good manufacturing practices.
220.
Blue Buffalo fully performed its duties under those contracts.

- 73 -
221.
Both Diversified and Wilbur-Ellis breached those contracts by failing to provide
the promised chicken and turkey meal, and instead providing what was in substantial part poultry
by-product meal and/or feathermeal.
222.
Blue Buffalo has suffered, and will continue to suffer, damages as a result of the
breaches of contract by Diversified and Wilbur-Ellis.

SECOND CLAIM FOR RELIEF
Breach of Express Warranty (Against Wilbur-Ellis and Diversified)
223.

224.
Both Wilbur-Ellis and Diversified made express statements to Blue Buffalo
concerning the nature of the goods they were providing. Among other things, Wilbur-Ellis and
Diversified represented that their chicken meal and turkey meal complied with AAFCO
definitions, and/or exclu[ded] . . . feathers, heads, feet, and entrails; except in such trace
amounts which may occur unavoidably in good manufacturing practices.
225.
These descriptions became part of the basis of the bargain between Blue Buffalo
and the Third-Party Defendants. Blue Buffalo reasonably and justifiably relied on these
descriptions and had no practicable way of independently ascertaining their truth or falsity.
226.
These descriptions were false. As set forth above, the chicken meal and turkey
meal provided by the Third-Party Defendants consisted in substantial part of poultry by-product
meal and/or feathermeal.
227.
breaches of express warranty by Diversified and Wilbur-Ellis.

THIRD CLAIM FOR RELIEF
Breach of Implied Warranty of Fitness for a Particular Purpose
(Against Wilbur-Ellis and Diversified)
- 74 -
228.

229.
At all relevant times, both Diversified and Wilbur-Ellis qualified as merchants
within the meaning of the Uniform Commercial Code and analogous state statutes.
230.
At the time of contracting, both Diversified and Wilbur-Ellis had reason to know,
and in fact knew, the particular purpose for which Blue Buffalo required the chicken and turkey
meal at issue. In particular, Diversified and Wilbur-Ellis had reason to know, and in fact knew,
that Blue Buffalo would be incorporating those ingredients into its pet foods, which Blue Buffalo
labeled and advertised as free of poultry by-product meals.
231.
At the time of contracting, both Diversified and Wilbur-Ellis had reason to know,
and in fact knew, that Blue Buffalo was relying on their skill or judgment to select or furnish
goods suitable for Blue Buffalos particular purposes.
232.
By providing product that consisted substantially of poultry by-product meal
and/or feathermeal, Diversified and Wilbur-Ellis failed to provide goods suitable for Blue
Buffalos purposes.
233.
breaches of the implied warranty of fitness for a particular purpose by Diversified and WilburEllis.
FOURTH CLAIM FOR RELIEF
Intentional/Fraudulent Misrepresentation (Against Wilbur-Ellis)
234.

235.
Wilbur-Ellis falsely represented that the shipments it was providing to Blue
Buffalo, or to Diversified on Blue Buffalos behalf, met Blue Buffalos specifications; that they
- 75 -
complied with AAFCOs definitions of chicken meal and turkey meal; and/or that they
exclu[ded] . . . feathers, heads, feet, and entrails except in unavoidable trace amounts.
236.
Wilbur-Ellis made these false representations directly to Blue Buffalo, and/or
with knowledge that they would reach Blue Buffalo.

237.
Wilbur-Ellis made these false representations with knowledge of their falsity.
238.
Wilbur-Ellis made these false representations with the intent to induce Blue
Buffalos reliance.
239.
Blue Buffalo reasonably and justifiably relied on these false representations in,
inter alia, accepting and paying for the shipments in question and incorporating those raw
materials into its pet-food products.
240.
These false representations proximately caused, and will continue to cause,
damage to Blue Buffalo.

FIFTH CLAIM FOR RELIEF
Negligent Misrepresentation (Against Wilbur-Ellis and Diversified)
241.

242.
Both Wilbur-Ellis and Diversified falsely represented that the shipments that they
were providing to Blue Buffalo met Blue Buffalos specifications; that they complied with
AAFCOs definitions of chicken meal and turkey meal; and/or that they exclu[ded] . . .
feathers, heads, feet, and entrails except in unavoidable trace amounts.
243.
Wilbur-Ellis and Diversified made these false representations directly to Blue
Buffalo, and/or with knowledge that they would reach Blue Buffalo.
244.
Wilbur-Ellis and Diversified made these false representations negligently, without
reasonable ground for believing them to be true.

- 76 -
245.
Wilbur-Ellis and Diversified made these false representations with the intent to
induce Blue Buffalos reliance.

246.
Blue Buffalo reasonably and justifiably relied on these false representations in,
inter alia, accepting and paying for the shipments in question and incorporating those raw
materials into its pet-food products.
247.
These false representations proximately caused, and will continue to cause,
damage to Blue Buffalo.

SIXTH CLAIM FOR RELIEF
Fraud in the Inducement (Against Wilbur-Ellis)
248.

249.
Blue Buffalo entered into binding, enforceable contracts with Wilbur-Ellis. In the
alternative, Blue Buffalo entered into binding, enforceable contracts with Diversified, and was an
intended third-party beneficiary of the binding, enforceable contracts between Diversified and
Wilbur-Ellis.
250.
Prior to entering into those contracts, Wilbur-Ellis made material false
representations with the intention of inducing Blue Buffalo and Diversified to enter into their
respective contracts with Wilbur-Ellis. Among other things, Wilbur-Ellis represented that its
chicken meal and turkey meal would meet Blue Buffalos specifications; that it complied
with AAFCO ingredient definitions; and that it possessed unparalleled expert[ise] in quality
control and processes . . . [that] closely track products from origin to Wilbur Ellis operations to
customers to monitor[] for quality.
251.
Those representations were false when made. At the time Wilbur-Ellis made
them, it knew they were false.

- 77 -
252.
Blue Buffalo and Diversified reasonably and justifiably relied on those
representations in entering into their respective contracts with Wilbur-Ellis. Had Wilbur-Ellis
not made those representations, neither Blue Buffalo nor Diversified would have entered into
those contracts.
253.
At the time Wilbur-Ellis entered into those contracts, Wilbur-Ellis had a present
intent not to perform its contractual obligations.

254.
Blue Buffalo suffered damage, and will continue to suffer damage, as a proximate
result of Wilbur-Elliss fraudulent inducement.

SEVENTH CLAIM FOR RELIEF
Negligence (Against Wilbur-Ellis and Diversified)
255.

256.
Wilbur-Ellis and Diversified owed Blue Buffalo a duty of care in connection with
their provision of chicken and turkey meal.

257.
Wilbur-Ellis and Diversified breached that duty by failing to take commercially
reasonable measures to ensure that the product they provided was free of material amounts of byproducts or feathers.
258.
Blue Buffalo has suffered, and will continue to suffer, damages as a proximate
result of the breaches of duty by Wilbur-Ellis and Diversified.

EIGHTH CLAIM FOR RELIEF
Unjust Enrichment (Against Wilbur-Ellis and Diversified)
(Pleaded In The Alternative)
259.
- 78 -
260.
Wilbur-Ellis and Diversified received, and presently retain, a pecuniary benefit at
the expense of Blue Buffalo.

261.
Under the circumstances herein alleged, it would be inequitable and unjust for
Wilbur-Ellis and Diversified to continue to retain that pecuniary benefit.

262.
As a matter of equity and good conscience, the benefit unjustly retained by
Wilbur-Ellis and Diversified should be disgorged and/or restored to Blue Buffalo.

263.
Blue Buffalo has no adequate remedy at law for the unjust enrichment of Wilbur-
Ellis and Diversified.

NINTH CLAIM FOR RELIEF
Violation of the Connecticut Unfair Trade Practices Act
(Against Wilbur-Ellis)
264.

265.
Wilbur-Ellis has made false and misleading descriptions or representations of
fact. These false or misleading statements misrepresent the nature, characteristics, or qualities of
their products and/or manufacturing processes. Their statements are expressly false, impliedly
false, or both.
266.
Wilbur-Ellis has therefore engaged in misleading, unfair or deceptive acts or
practices in the conduct of trade or commerce in violation of Conn. Gen. Stat. 42-110a et seq.
267.
Wilbur-Ellis intended these misleading, unfair, or deceptive acts and practices to
result in harm to Blue Buffalos business or trade interests. Alternatively, Wilbur-Ellis

recognized or should have recognized that those acts and practices were likely to result in such
harm.
- 79 -
268.
Blue Buffalo reasonably and justifiably relied on those misleading, unfair, and
deceptive acts and practices in conducting its business.

269.
These wrongful acts have proximately caused Blue Buffalo to suffer ascertainable
loss of money or property within the State of Connecticut.

270.
As a result, Wilbur-Ellis is liable to Blue Buffalo for actual damages, punitive
damages, attorneys fees, and any other relief permitted by law.

TENTH CLAIM FOR RELIEF
Violation of the California Unfair Competition Law
(Against Wilbur-Ellis)
271.

272.
Wilbur-Ellis has made false and misleading descriptions or representations of
fact. These false or misleading statements misrepresent the nature, characteristics, or qualities of
its products and/or manufacturing processes. Its statements are expressly false, impliedly false,
or both.
273.
Wilbur-Elliss above-described conduct offends established public policy and is
immoral, unethical, oppressive, unscrupulous, and substantially injurious to Blue Buffalo and to
consumers. The injury caused by Wilbur-Elliss conduct is not outweighed by any
countervailing benefits to consumers or competition.
274.
Wilbur-Ellis has therefore engaged in fraudulent and unfair business acts or
practices in violation of Cal. Bus. & Prof. Code 17200 et seq.

275.
Wilbur-Ellis intended these fraudulent and unfair acts and practices to result in
harm to Blue Buffalos business or trade interests. Alternatively, Wilbur-Ellis recognized or

should have recognized that those acts and practices were likely to result in such harm.
- 80 -
276.
Blue Buffalo reasonably and justifiably relied on those fraudulent and unfair acts
and practices in conducting its business.

277.
These wrongful acts have proximately caused Blue Buffalo to suffer ascertainable
loss of money or property.

278.
As a result, Wilbur-Ellis is liable to Blue Buffalo for restitution, injunctive relief,
and any other relief permitted by law.

ELEVENTH CLAIM FOR RELIEF
Indemnification (Against Wilbur-Ellis and Diversified)
279.

280.
As a result of the wrongful conduct of Wilbur-Ellis and Diversified set forth
herein, Blue Buffalo may be held liable through no fault of its own to Nestl Purina, to
consumers who purchased Blue Buffalos products, and/or to other parties.
281.
Blue Buffalos contracts with Wilbur-Ellis and Diversified entitle Blue Buffalo to
implied-in-fact indemnity. The contracting parties intended that, in such a situation, Wilbur-Ellis
and/or Diversified would be responsible for the loss.
282.
In the alternative, Blue Buffalo is entitled to equitable or implied-in-law
indemnity. Irrespective of the parties contemporaneous intent, as between Blue Buffalo on one
hand, and Wilbur-Ellis and Diversified on the other, any liability to Nestl Purina, to consumers,
or to other parties should be borne by Wilbur-Ellis and Diversified as a matter of equity and
good conscience.
- 81 -
TWELFTH CLAIM FOR RELIEF

Contribution (Against Wilbur-Ellis and Diversified)
(Pleaded in the Alternative)
283.

284.
Blue Buffalo may be held liable in damages to Nestl Purina, to consumers who
purchased Blue Buffalos products, or to other parties, even though Wilbur-Ellis and Diversified
are also partially at fault for those damages.
285.
In the event Blue Buffalo is required to pay such damages, Blue Buffalo is
entitled, as a matter of equity and/or pursuant to any applicable statutes, to contribution from
Wilbur-Ellis and Diversified for any amounts that it is required to pay in excess of its fair and
proportionate share.
WHEREFORE, Blue Buffalo demands judgment against Wilbur-Ellis and Diversified
and requests relief as follows:
A.
Entry of judgment in Blue Buffalos favor on each Claim in Blue
Buffalos Third-Party Complaint.

B.
An order directing an accounting of all gains, profits, savings and
advantages realized by the Third-Party Defendants from their wrongful conduct detailed
above;
C.
An award of Blue Buffalos damages attributable to the Third-
Party Defendants wrongful conduct, in an amount to be determined at trial;

D.
An award to Blue Buffalo of all profits earned by the Third-Party
Defendants attributable to their wrongful conduct, in an amount to be determined at trial;

E.
An award of punitive damages and attorneys fees to the full extent

- 82 -
allowable under state statutory and common law;

F.
An award of prejudgment and post-judgment interest on any
monetary award in this action;

G.
An award of the costs and disbursements of this action; and
H.
Such other and further relief as the Court may deem just and
proper.
Dated:
May 19, 2015

Respectfully submitted,
/s/ Steven A. Zalesin
Steven A. Zalesin (admitted pro hac vice)
Lead Counsel
Adeel A. Mangi (admitted pro hac vice)
Jonah M. Knobler (admitted pro hac vice)
Vivian R.M. Storm (admitted pro hac vice)
PATTERSON BELKNAP WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
Telephone: 212-336-2000
Facsimile: 212-336-2222
Martin Flumenbaum (admitted pro hac vice)
Robert Atkins (admitted pro hac vice)
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
LLP
New York, NY 10019-6064
Telephone: 212-373-3000
Fax: 212-757-3990
Gerard T. Carmody, # 24769
David H. Luce, # 36050
Sarah J. Bettag, # 60849
CARMODY MACDONALD P.C.
120 S. Central Avenue
Suite 1800
- 83 -
St. Louis, MO 63105

Telephone: 314-854-8600
Fax: 314-854-8660
Of counsel:
Richard MacLean, Esq.
Blue Buffalo Company, Ltd.
- 84 -
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 19th day of May, 2015, the forgoing was
served on all counsel of record by operation of this Courts Electronic Filing System.
/s/ Steven A. Zalesin
EXHIBIT A
Page 1
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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NESTLE PURINA PETCARE COMPANY

Plaintiff,
v.
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THE BLUE BUFFALO COMPANY, LTD.

Defendant.
:
:
:
:
:
:
:
:
:
:
CASE No.
14-cv-00859
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Deposition of JAMES V. MAKOWSKI, Ph.D., taken

pursuant to notice before Christine M. Baird, RPR, CRR
and Notary Public, at the law offices of McNees
Wallace & Nurick, LLC, 100 Pine Street, Harrisburg,
PA, 17108 on Thursday, November 13, 2014, beginning
at approximately 8:45 a.m., there being present:
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JOB NO: 86970

TSG Reporting - Worldwide
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APPEARANCES:
MAYER BROWN
By: Carmine R. Zarlenga, Esquire
1999 K Street NW
Washington, DC 20006
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INDEX
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- and Richard M. Assmus, Esquire

71 South Wacker Drive
Chicago, IL 60606
WITNESS:
JAMES V. MAKOWSKI, Ph.D
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412
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PATTERSON BELKNAP WEBB & TYLER

By: Adeel A. Mangi, Esquire
- and Vivian Storm, Esquire
New York, NY 10036
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Representing the Plaintiffs
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CROSS REDIR
NESTLE PURINA PETCARE

By: David Narkiewicz, Esquire
1 Checkerboard Square - 9T
St. Louis, MO 63164
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DIR
v
Representing the Defendant
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ALSO PRESENT:
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PAUL WEISS RIFKIN WHARTON & GARRISON

BY: Pietro J. Signoracci, Esquire (via telephone)
New York, NY 10019
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Professor Vinayak Dravid
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Angelo Delmonte, Legal Video Specialist
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EXHIBITS
PAGE
Exhibit 1 - 7/23/14 Expert Report of
James V. Makowski
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Exhibit 2 - AOCS Inform Archives

April 2000
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Exhibit 3 - A Microscopist's View of
Feed Microscopy
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Exhibit 5 - Objections to Blue

Buffalo's subpoena to
Dr. Makowski
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Exhibit 6 - Google's cache of Facebook

search results for
Jim Makowski
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Exhibit 7 - Facebook search results for

Jim Makowski
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Exhibit 8 - Windsor Laboratory photo 86
Exhibit 9 - Food & Drug Administration,
HHS, Sec. 2.19
100
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Exhibit 10 - 1/6/14 Windsor Laboratories

Microscopic Analysis to
D. Weilbacher
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111
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Exhibit 12 - March 2014 Nestle

PetCare study notebook 121
Exhibit 13 - 4.1.01 AOAC Official
Method 965.16, Sampling
of Animal Feed Procedure,
First Action 1965
179
Exhibit 17 - Analysis of Blue Buffalo

Kibble and Bit
226
Exhibit 18 - Utilizing Light Microscopy
to Identify the Origin
of Rendered Animal Products
in Animal Feeds by James V.
Makowski, Ph.D.
264
Exhibit 19 - Feed Microscopy article
from publication Inform,
Vol. 9/No. 11/November
1998
339
Exhibit 20 - Color copy photo
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347
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358
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Exhibit 11 - 9/11 field notes
Exhibit 15 - Aquaculture Feed Microscopy

Manual
189
Exhibit 16 - Windsor Laboratories
Purina pictures
Ingredient Breakdown
(Rev 11/11/14)
219
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Exhibit 14 - US EPA Guidance for

Obtaining Representative
Laboratory Analytical
Subsamples from Particulate
Laboratory Samples
184
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PAGE
Exhibit 4 - Microscopic Analysis of

Agricultural Products
4th Edition
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EXHIBITS
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Exhibit 27 - Reference Samples
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EXHIBITS
PAGE
Exhibit 28 - Drawing by James Makowski
Exhibit 29 - Identifying Animal Protein
Products by Feed Microscopy
by James V. Makowski
386
Exhibit 30 - Messiah College Department
of Biological Sciences web
page
398
Exhibit 31 - 2014 Official Publication
Association of American Feed
Control Officials Inc.
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JAMES V. MAKOWSKI, Ph.D.

THE VIDEOGRAPHER: This is the start of
the tape labeled No. 1 of the video deposition of a
James Makowski in the matter of Nestle Purina PetCare
Company versus Blue Buffalo Company, Ltd.
It is filed in the Court -- the U.S.
District Court for the Eastern District of Missouri,
No. -- Case No. 14-cv-00859 RWS.
This deposition is being held at 100 Pine
Street in Harrisburg, Pennsylvania, on November 13th,
2014. The time on the camera is now 8:44 a.m.
My name is Angelo Delmonte from TSG
Reporting, and I am the Legal Video Specialist. The
court reporter is Chris Baird, in association with
TSG Reporting also.
Will counsel please introduce yourselves?
MR. MANGI: Adeel Mangi from Patterson
Belknap Webb & Tyler, representing Blue Buffalo.
I'm here with my colleague, Vivian Storm, and
with Professor Vinayak Dravid.
MR. ZARLENGA: My name is Carmine
Zarlenga. I'm representing Nestle Purina PetCare
Company. I am from Mayer Brown.
Also here with me is Rich Assmus from
Mayer Brown, and David Narkiewicz, Deputy General
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Counsel for Nestle Purina.
THE VIDEOGRAPHER: The court reporter can
now swear in the witness.
JAMES V. MAKOWSKI, Ph.D.,
the witness herein, having first been duly sworn on
was oath examined and testified as follows:
DIRECT EXAMINATION
BY MR. MANGI:
Q. Dr. Makowski, good morning.
A. Good morning.
Q. I'm sorry for the delayed start.
A. No problem.
Q. Now, Dr. Makowski, I'm going to -- let's begin
by handing you a document that has been marked as
Exhibit 1 to your deposition.
(Deposition Exhibit 1 was marked for
identification.)
THE WITNESS: Thank you.
BY MR. MANGI:
Q. Dr. Makowski, what we've marked as Exhibit 1
is a report that you submitted in this case; is that
correct?
A. That is correct.
Q. Now, let me ask you to turn to the number on
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the bottom right starting with PUR that goes to
PUR 241.
A. Uh-huh.
Q. Those numbers, by the way, we refer to as
Bates numbers.
A. Okay.
Q. I'm going to use that designation.
Now, when we get to Page 241, that is a copy
of your CV; is that correct?
A. That is correct.
Q. Is the summary on the first page with your
addresses, education and teaching experience correct
and accurate?
A. It is.
Q. Now, did you prepare this CV yourself?
A. I did.
Q. Did anyone assist you with that task?
A. No.
Q. Do you have any assistants or helpers that
work with you?
A. In what capacity?
Q. In any capacity. A secretarial assistant,
TAs, things like that.
A. No TAs. We do have a -- a departmental
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secretary, departmental administrative assistant, who
may on occasion give me some help with addressing an
envelope or something like that, but minimal.
Q. Is that one person or two?
A. One person.
Q. Did that person help you in any way with your
CV?
A. No, they did not.
Q. Did they help you at all with the preparation
of your 2011 manual, Microscopic Analysis of -A. No, they did not.
Q. -- Agricultural Products?
Okay. And just to help the court reporter, if
you could please let me finish the questions before
you answer them.
Do those people help you at all with any of
your teaching work?
A. No.
Q. Do they help you with your microscopy work at
Windsor Laboratories at all?
A. No.
Q. Do they help you with any advertising or
online presence or social networking?
A. No.
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Q. Do you use Twitter or LinkedIn, Facebook, any
of those online platforms?
A. Only personally, not for Windsor Laboratories.
Q. And would I be correct in assuming that
anything you do on those sorts of online platforms is
your own work individually, no one helps you with
that?
A. That is correct.
Q. Now, here in your CV, when we go a little
further into it, after your work experience and
awards, there is a section talking about your
publications; is that correct?
A. Yes. Uh-huh. That's correct.
Q. Is it customary for academics like yourself to
list publications in their CVs?
A. It is.
Q. Why is that?
A. Just to show expertise in a particular area.
Quite honestly, for tenure purposes, promotion
purposes, often it's important to indicate the number
of publications or scholarly work that's been done.
Q. Is it considered, broadly speaking, a measure
of academic productivity in scholarship?
A. In some circles.
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Q. Now, at the beginning of your report, you say
that you list in your CV publications for the last
ten years. When I look at this list, it appears to
begin in 1979.
So, just to clarify, is this a list of the
publications you've had throughout your career or is
this some subset?
A. That is correct. Throughout my entire career.
Q. And looking at your degrees, we see that you
started with your bachelor's degree in 1976; is that
correct?
A. No -- well, I graduated in 1976.
Q. Right.
A. I began in 1972.
Q. Correct.
And so over the 38-odd years since you got
your bachelor's degree, this is a comprehensive list
of your publications; is that right?
A. Yes, it is.
Q. Now, when we take a look at this list, we see
that some of the entries, looking, for example, at
the first, the second and the fourth, are all listed
on your CV as being unpublished research articles or
just generally unpublished; is that correct?
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A. That's correct.
Q. Now, why is it, Dr. Makowski, that in your CV
under publications, you are listing what appear to be
unpublished materials?
A. A typical CV, to my understanding, indicated
publications. I simply included those. They were
research -- it was research that I conducted while I
was an undergraduate, or actually in graduate school
at West Chester University. So we simply included
that -- I included that to indicate what some of
these are, some of the works that I have completed.
Q. Are these articles that you sought to have
published?
A. Oh, no. Not at all.
Q. Now, the entry that is a couple down on the
list is High School Teachers' Conceptions of Genetics
and Their -- and then it cuts off. Do you see that?
A. Uh-huh. It looks like that has been -uh-huh.
Q. And I assume that is an inadvertent formatting
error in your CV?
A. It is.
Q. Does that refer, in fact, to your Ph.D.
thesis?
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A. It does. Uh-huh.
Q. And your Ph.D. thesis is also unpublished,
isn't it, Dr. Makowski?
A. That's correct.
Q. So we're clear, then, of the 12 publications
you list, a third of them, that's four, are in fact
unpublished; is that correct?
A. That's correct.
Q. Now, of the others that you list here, how
many of these publications are from entities that you
are affiliated with or a part of, like Messiah, AOCS
or AAFM?
A. The remainder of them are.
Q. Now, one of the articles we have here listed
on that page with the Bates number 243 is from the
Journal of Research in Science Teaching. Do you see
that, sir?
A. Uh-huh. That's correct.
Q. Is that an entity that is also affiliated -A. Oh, no.
Q. -- with one of those groups?
A. No. No.
Q. Is that a journal?
A. Yes, it is.
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Q. Is it a peer-reviewed journal?
A. It is, to my knowledge, yes.
Q. And I note that after your name for that
entry, in parentheses, it says 1992, but the citation
is to February of 1994.
A. That's correct.
Q. So, just so we are clear on the record there,
that publication is, in fact, from February of 1994;
is that correct?
A. No. I actually think it -- well, I'm really
not sure, looking back on this. It may have been
1994. And this -- this actually was submitted -- I'm
not sure that this -- this one actually was not
published either, so it did not -- it did not pass
the peer review. It was part of my dissertation.
Q. Now, we can agree, can't we, Dr. Makowski,
that peer-reviewed articles are considered to have a
certain degree of prestige associated with them?
A. For some, yes.
Q. For you?
A. Not necessarily.
Q. I have heard it said by some academics that it
is easier to publish a book than it is a
peer-reviewed article, because there is no one
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looking over your shoulder and assessing the degree
of scholarship. Would you agree with that
characterization?
A. Not necessarily. Even in publishing a book,
it has to go through an editorial review.
Q. Now, we have seen of late, haven't we, in the
academic world, some scandals related to people
claiming degrees or publications or qualifications
that they didn't have?
A. I suppose.
Q. That's sort of a hot topic in academia today,
isn't it?
A. It may be.
Q. Now, Dr. Makowski, do you think it's improper
to list a publication in a peer-reviewed journal that
was, in fact, rejected for publication from the
peer-review process?
A. I don't know if it is or not. Again, I -- it
was a publica- -- it was an attempt at a publication
that was submitted but was rejected. Whether we
include that or not, I guess that's open to debate.
Q. So to be clear, you think it is open to debate
whether or not it's appropriate for an academic to
list as a publication in a journal with a citation an
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article that was, in fact, rejected for publication?
A. Yes. It was still a work product that I did
complete.
Q. Can you identify anyone, other than yourself,
in the academic community who would take or has taken
the position that it is appropriate to list a
publication with a citation and a title that was, in
fact, rejected for publication?
A. I have never asked anyone that question, so I
can't answer that.
Q. Have you ever heard anyone express that view?
A. I haven't expressed -- heard anyone express
either side of that view.
Q. You've never heard anyone express the view of
the other side, that it is inappropriate to claim a
publication that you, in fact, do not have?
A. No, I haven't heard that.
Q. And in your own personal view -- I understand
you are saying it is open to debate. But in your own
personal view, is it appropriate for you to have
listed this as a publication?
A. Again, I was listing it more so as a work
product. In -- at Messiah, where I teach, these
types of things -- our CVs are reviewed regularly.
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And this was simply to indicate that this was a
work -- research paper that I was attempting to have
published. Again, as we have indicated, it has not
been published.
But I did present it within the department.
We talked about it. But, again, it was rejected. I
simply continued to include that in the CV.
Q. And if the idea was to just reflect work
product rather than publications, why did you include
a volume number and date?
A. This is where we expected it to be published.
Q. How long have you claimed to have this
publication in your CV, Dr. Makowski?
A. To be honest with you, I'm not sure how long
it's been in there. Probably in the late '90s.
Q. So, for approximately 20 years or so, you have
claimed to have this publication in your CV?
A. Yes. Uh-huh.
Q. Now, you say your CV is reviewed or submitted
to Messiah on a regular basis.
A. Uh-huh.
Q. What is the purpose of that submission?
A. Tenure review.
Q. I'm sorry. Tenure review?
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A. Tenure review, uh-huh.
Q. So, in other words, in assessing whether or
not Messiah will give you tenure, they look at your
CV?
A. Yes.
Q. When was the decision made as to whether or
not you would get tenure?
A. We don't have a traditional tenure that you
would find in other universities. We have what's
referred to as rolling tenure. So every five years,
I submit any publications or any presentations that
have occurred within the previous five years. And
that's the basis for promotion and tenure and
continued tenure.
Q. So, tenure is revisited on -A. It is.
Q. -- a periodic basis?
A. Yes. Uh-huh.
Q. And part of your tenure evaluation throughout
this period has been a publication that, in fact,
does not exist, correct?
A. Yes. Uh-huh.
Q. Did you tell anyone at Messiah -A. Oh, yeah.
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Q. -- that this is not published?
A. Yes.
Q. And who did you tell that information?
A. Department chairs.
Q. What are their names?
A. At that point, it was Dr. Noel Falk.
Q. Are there other department chairs you've
communicated that to?
A. No. He was the only one.
Q. Are there other department chairs that have
reviewed your CV and assessed tenure decisions?
A. I don't remember who's reviewed it, to be
honest with you. We have a term-tenure and promotion
committee that examines these types of things. But,
again, scholarship is only one-third of what's
considered for tenure and promotion.
Q. Messiah is a Christian college, correct?
A. It is. Uh-huh.
Q. So, therefore, ethics is at the center or the
heart of the university's -A. Yes.
Q. -- ethos?
A. Yes.
Q. Indeed, there is a handbook for faculty that
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requires faculty to conduct their social and business
lives with the highest standards of integrity and
ethics, correct?
A. That's correct, uh-huh.
Q. In that context, did this entire committee
that was assessing tenure decisions, were they all
individually aware that this publication does not
exist?
MR. ZARLENGA: I object to the form of
that question as calling for speculation.
BY MR. MANGI:
Q. Let me rephrase it.
Did you inform the members of that tenure
committee that this publication does not, in fact,
exist?
A. No, I did not. At that point, it would have
been the responsibility of the department chair in
making a recommendation to indicate something like
this.
Q. So, it is not your responsibility to tell
people that this publication is, in fact, not a
publication?
A. I told the department chair that it wasn't
actually published.
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Q. And when -- when was that person you told the
department chair, in what years?
A. Oh, I -- we've had many department chairs
since then. I would have to go back and consult my
records as to when that was.
Q. Sometime during the '90s, that person was the
chair?
A. Yes. And even into the -- probably as far
back as the '80s as well.
Q. But you didn't tell any subsequent department
chairs that information?
A. No. No. And, again, the reason primarily is,
these early publications have no bearing on
term-tenure or continued -Q. Can we agree, Dr. Makowski, that if someone
were to read your CV, look at the title
"Publications," look at the citation form with a
title, a journal, a volume and a date, they would
think that this is an article that was published in
that journal by you?
MR. ZARLENGA: Same -- same objection.
The question calls for speculation.
BY MR. MANGI:
Q. Go ahead.
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A. I'm not sure.
Q. You are not sure if they would think that?
A. No, I'm not.
Q. So you think it's possible they may look at
that and think, well, maybe that's something that was
rejected for publication?
MR. ZARLENGA: Same objection.
BY MR. MANGI:
Q. Do you think that's possible?
A. I think anything is possible.
Q. Now, your CV then has a number of articles
that are listed as being in a publication called
Inform.
A. Correct.
Q. What is Inform?
A. Inform is a journal, it is more of a news
journal, for the American Association of Feed
Micros- -- I'm sorry -- the American Oil Chemists'
Society.
Q. And that's an organization that you are
affiliated with, correct?
A. Yes. Uh-huh.
Q. Do you play a role in the publication of
Inform?
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A. No, I don't.
Q. Have you ever played such a role?
A. No.
Q. Now, you list three articles, one from 1999
and then one from 2000 and one from 2006, correct?
A. Right.
Q. Now, the 1999 article is one that you produced
with your materials in this case, correct?
A. That's correct, uh-huh.
Q. You did not, in fact, produce the articles
from April of 2000 or September of 2006. Is there a
reason for that?
A. I'm not sure what you mean.
Q. You did not hand them over for production in
this case with the other documents that you produced.
A. Oh. No, I did not.
Q. Do you know why that is?
A. No, I don't.
Q. Now, are the dates and attributions on these
Inform articles correct in your CV?
A. To the best of my knowledge, they are.
Q. Okay. Let me show you what we are going to
mark as Exhibit 2 to your deposition.
A. Uh-huh.
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identification.)
BY MR. MANGI:
Q. Dr. Makowski, Exhibit 2 is a printout
reflecting the contents from Inform -- from the AOCS
website of the April 2000 edition of Inform.
A. Uh-huh.
Q. As I look at this document, Dr. Makowski, and
the articles listed herein, I do not see the article
that you list in your CV. Can you help me understand
why that is the case?
A. It is probably under Snippets. These weren't
full research articles. They are more of a report.
I'm sorry. Where is that? Information Technology
Snippets.
Q. And where is that on this page?
A. The departments on the right-hand side, a few
up from the bottom.
Q. Information Technology Snippets?
A. I think that's where it was located, uh-huh.
Q. And is that also true of the 2006 article that
you cite?
A. Yes.
Q. So, do you have copies of those Snippets?
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A. No, I don't. I'm sorry. I don't.
Q. And if one wanted to check whether or not such
a Snippet in fact were published, how would one do
that?
A. I imagine you would have to get the journal.
I no longer receive the journal. I've elected not
to.
Q. So, Dr. Makowski, in fact, then, these are not
articles in the academic scholarly sense either; is
that correct?
A. Okay. I -- okay.
Q. Would you agree with that?
A. I would agree with that, uh-huh.
Q. In fact, they don't even make -- Inform is -withdraw that.
Inform is not a peer-reviewed publication; is
that correct?
A. Correct.
Q. But it does include some articles, right?
A. It does, uh-huh.
Q. For example, Professional and Home Chefs with
a Taste for Adventure -A. Yes.
Q. -- is one of the ones listed here.
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A. Uh-huh.
Q. Oils to Beat the Bland.
A. Correct.
Q. But what you wrote are not, in fact, even
articles in that sense, correct?
A. No, these two are not.
Q. And if they are published, you think they
would be under a heading called "Snippets"?
A. Perhaps. Uh-huh. Again, it's -- it's been a
few years. Yes, uh-huh.
Q. Is it possible that these articles, in fact,
do not appear in the publications at all?
A. I haven't looked at them recently. I couldn't
tell you that at this point.
Q. Well, you claim these as publications on your
CV, Dr. Makowski -A. I do.
Q. -- isn't that correct?
A. Yes.
Q. And -A. They were also presented at roundtable
discussions within our American Association, at that
point, Feed Microscopists, as a presentation.
Q. And you have a separate section in your CV for
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presentations, correct?
A. I do, uh-huh.
Q. But, in fact, these two Inform pieces you list
as publications, correct?
A. Yes.
Q. And as you list [sic] here today, can you tell
me, Dr. Makowski, with confidence that these are, in
fact, published in Inform?
A. No, I can't. I'd have -- because I haven't
seen them recently.
Q. Now, Dr. Makowski, it strikes me as unusual
for an academic to have publications listed in their
CV but not be able to tell me that yes, in fact, I
published them. Can you help me understand that?
MR. ZARLENGA: I'm going to object to the
form of that question. It is not a question.
BY MR. MANGI:
Q. Go ahead.
A. Could you rephrase the question?
Q. Sure.
In my experience, every time I have spoken to
an expert with publications, they are able to answer
without reservation, yes, I published that, that's
why it's in my CV. You appear not to be able to
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state that yes, this is or isn't a publication, even
though you claim it as a publication.
Can you help me reconcile that fact with the
Messiah College ethos of conducting life with the
highest standards of integrity?
MR. ZARLENGA: Let me just object to the
form of that question as argumentative.
THE WITNESS: Could you restate it in a
less argumentative way?
BY MR. MANGI:
Q. Sure.
Do you think that it is truthful and
consistent with the highest standards of integrity to
claim two more publications here when you are not
even sure whether or not they were published?
A. Perhaps not.
Q. If I were to issue a subpoena to the American
Society -- I'm sorry -- to AOCS, the entity that
published these entries, and call for the full copies
of these journals, do you think I will find anything,
even a Snippet, reflecting the two entries in your
CV?
A. I'm not sure.
Q. These articles are also part of the CVs that
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you have reflect -- submitted over the years to
Messiah for your tenure determination, at least since
the dates reflected thereon?
A. Yes.
Q. Did you inform Messiah that these two
publications may not exist either?
A. No, I did not. These -- not these two.
Q. Why not?
A. Quite honestly, I'm not sure.
Q. As you sit here today, do you think you should
have done that?
A. It didn't have any bearing on my tenure
renewal.
Q. Because you don't view these as relevant to
the academic area that you are pursuing?
A. Because they were only a small portion of the
academic portion of my review.
Q. Can we agree, though, Dr. Makowski, that
leaving aside the academic evaluation, a concern
about integrity, that would be very important to
Messiah, wouldn't it?
A. Yes.
Q. Now, on the basis of the discussion we have
had today so far, do you intend to apprise Messiah,
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the tenure committee, and everyone who has looked at
this CV over the years, that in fact, at least three
of the publications listed here are not, in fact,
publications?
form of that question as stating a fact that has not
been demonstrated.
BY MR. MANGI:
Q. Go ahead, sir.
MR. ZARLENGA: Lacking foundation.
BY MR. MANGI:
Q. Go ahead.
A. I'm willing to do that. I'm willing to also
take these last two down into the presentations
section and revise the CV.
Q. Just so we are clear, I'm asking, do you
intend to do that?
A. Yes.
Q. Now, let's talk, Dr. Makowski, about the
article listed on your CV as A Microbiologist's View
of Feed Microscopy.
A. Okay.
Q. You see that entry on your CV? It is the
second entry --
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A. Yes, I do.
Q. -- from the bottom on the first page.
A. Yes.
Q. Now, this one I do have a copy of. Let me
hand you what I'm going to mark as Exhibit 3 to your
deposition.
A. Okay.
identification.)
BY MR. MANGI:
Q. Is that, in fact, the article that -A. It is.
Q. -- is referred to in your CV?
A. It is.
Q. Now, I will note that the header in the
publication is "A Microscopist's View of Feed
Microscopy" -- "Microscopy," whereas your CV states
"A Microbiologist's View." Do you see that?
A. I do.
Q. And why is there that discrepancy?
A. A microbiologist uses a microscope as their
primary tool, so a microbiologist may, indeed, be
referred to as a microscopist.
Q. Were you aware that the titles don't quite
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match up?
A. No, I wasn't.
Q. Did you change the title -A. No.
Q. -- or did someone else do that?
A. It was inadvertent.
Q. I'm sorry. Just to be clear, did you change
the title that actually went on this article from
"microbiologist" to "microscopist" at some point?
A. Actually, if you look at the first full
paragraph on Page 48 of the document, it says, "I
chose what I thought was a sufficiently vague title,
A Microbiologist's View of Feed Microscopy."
Q. Yeah.
A. So, it -- it's quite possible that since
that's what I intended this to be, that the title may
have been changed by the publisher or the editor of
the proceedings.
Q. Do you think they may have disagreed as to
whether or not it's appropriate for you to refer to
yourself as a -A. I can't answer -Q. -- microbiologist?
A. I'm sorry. I can't answer that.
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Q. Do you, in fact, refer to yourself as a
microbiologist?
A. Yes.
Q. And what's the basis for that particular -A. Undergraduate training in microbiology, but
also, I teach microbiology at Messiah College.
Q. Now, do academics such as yourself,
Dr. Makowski, pay attention to how often their work
is cited?
A. Some do.
Q. Do you?
A. No. It's not important to me, quite honestly.
Q. Do you consider it an important measure in the
academic community, generally, of productivity and
scholarship?
A. Whether a work is cited or not?
Q. Yes.
A. Not necessarily.
Q. You're aware, for example -- you're familiar
with Professor Dravid, who is here in the room and is
a Blue Buffalo expert?
A. Yes.
Q. Are you aware that Dr. Dravid's articles, for
example, have been cited -- peer-reviewed articles
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have been cited in other peer-reviewed articles over
12,000 times?
A. I was not aware of that.
Q. What conclusions, if any, do you draw from
that fact?
A. A lot of people have cited his work.
Q. And what conclusions do you draw from that
fact, if any?
A. I can't draw any other conclusion other than a
lot of people have cited his work.
Q. Do you think that speaks at all to the quality
or importance of the work?
A. It may. Not always.
Q. Do you know, Dr. Makowski, how frequently your
publications have been cited?
A. I do not.
Q. Are you familiar at all with something called
a Hirsch Index or an h-index?
A. No, I am not.
Q. Would it refresh your recollection if I told
you that it is an index that measures how many times
a publication has been cited in the sense that if
your Hirsch Index is 50, that means you have at least
50 articles that have been cited at least 50 times
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each? Have you ever heard of that type of index?
A. No, I haven't.
Q. Now, we can agree, can't we, Dr. Makowski,
that based on the publications we've looked at, you
in fact have no peer-reviewed publications of any
kind on any topic; is that correct?
A. I would say that the book, the manual, is a
peer-reviewed publication.
Q. What is your basis for that?
A. Because, again, it was -- the chapters were
reviewed by other experts in the field, and then it
was reviewed by the editorial board of AOCS prior to
publication.
Q. That is part of a book editorial process,
correct?
A. Yes. Uh-huh.
Q. We can agree, can't we, Dr. Makowski, that the
editorial process leading up to the publication of a
book is, in fact, different from the peer-review
process that an academic journal engages in?
vagueness.
BY MR. MANGI:
Q. Go ahead.
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A. I can't speak to the -- to that. I can't
answer that.
Q. You don't know whether they're the same or
different?
A. I'm not sure how similar or dissimilar they
are.
Q. Who are the peers that reviewed this book
before its publication?
A. The other authors, for one, but then other
experts in the area of microscopy that are a part of
our group.
Q. And who are they?
A. Oh, my goodness. Let me think. Individuals
such as Kim Koch. I think he is at North Dakota
State University.
Glenn Kobata, Patricia Ramsey. They are both
at the California -- they work for the State of
California, in one of their laboratories there.
At least those three, that I'm aware of.
Q. Are these people that you know personally?
A. Oh, I'm aware of them, yes. They are a part
of our organization.
Q. You know them through your professional
circles?
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A. Yes.
Q. And are they people that you asked to have a
look at the book and give you feedback?
A. Yes.
Q. Now, are you aware, Dr. Makowski, that one of
the central hallmarks of the academic peer-review
process is that it is, in fact, anonymous?
A. No, I'm not.
Q. You didn't know that?
A. No.
Q. It does, in fact, impact the type of feedback
one is willing to provide, whether or not you have a
relationship with the author, doesn't it?
vagueness. Also, it calls for speculation.
THE WITNESS: I can't answer that. I'm
not -- I'm not sure.
BY MR. MANGI:
Q. If you knew someone personally, if they were a
friend of yours, they asked you to review something,
would it impact how you reviewed it, versus if you
were doing it anonymously as part of a board?
A. Not at all.
Q. No difference at all?
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A. Not at all.
Q. Now, you list also in your CV the societies to
which you belong -A. Uh-huh.
Q. -- correct?
A. Uh-huh.
Q. You do not mention the Microscopy Society of
America.
A. Uh-huh. That's correct.
Q. Are you familiar with that entity?
A. I am.
Q. It's, in fact, the oldest professional society
in the United States in that area?
A. It is.
Q. And, in fact, it's -- it publishes what many
would consider the most prestigious journal in the
field, Microscopy and Microanalysis; is that correct?
A. I can't speak to whether it is the most
prestigious or not.
Q. But you are familiar with the journal?
A. I have heard of it.
Q. And do you consider it a prestigious journal?
A. I am not that familiar with it.
Q. Is there a reason why, given your field, you
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are not part of this society?
A. Uh-huh. We are given limited funds to join
professional societies, and that's not -- that's one
that I have chosen not to be a part of, primarily for
expense.
Q. Now, I'm going to hand you what we're marking
as Exhibit 4 to your deposition, a copy of your
manual.
identification.)
BY MR. MANGI:
Q. Now, you are listed, Dr. Makowski, as one of
four editors of this manual; is that correct?
A. That's correct.
Q. You describe yourself as the lead editor?
A. Uh-huh.
Q. I'm sorry. You have to answer yes or no so
the reporter can take it down.
A. Yes.
Q. Was it your responsibility ultimately for
ensuring that all the information in this manual was
accurate?
A. As accurate as possible, yes. One can never
be a hundred percent sure if it's completely
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accurate.
Q. But your endeavor was certainly to make sure
that there were no inaccuracies in it?
A. It was.
Q. Now, and this is a manual that is published by
the American Oil Chemists' Society Press?
A. That is correct.
Q. Now, AOCS, as I have read some of your prior
speeches, now has a Feed Microscopy Division, which
was formerly the American Association of Feed
Microscopists; is that correct?
A. That's correct.
Q. And AAFM became a division of AOCS in 1997.
A. That is correct.
Q. And you are active in AOCS and have been over
the years?
A. Yes.
Q. For example, you chair their Microscopy
Division Training Committee?
A. Yes.
Q. Now, did you arrange for AOCS to take on the
publication of this manual?
A. We sought several publishers for this, and
AOCS was the most reasonable in costs and
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efficiencies.
Q. Now, how much did AOCS pay you to take on the
task of editing this manual?
A. They paid me nothing.
Q. Did you have to pay AOCS for the publishing of
this manual?
A. No.
Q. So AOCS took on the costs of publication on
their own?
A. That's correct.
Q. How much did AOCS sell each copy for?
A. I'm not absolutely sure. The price tends to
vary. I think originally it was maybe $300, but I
have seen it as low as $90. And it's a supply and
demand market.
Q. Do you and your fellow editors get money back
from AOCS when copies are sold?
A. Very little.
Q. What proportion of the revenue from sales
comes to you?
A. On a percentage basis or a dollar amount?
Q. Let's do both.
A. Dollar amount, it's $8 per edition.
Q. Per copy sold?
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A. Per copy sold.
You can calculate what the percentage might
be. I don't have a calculator with me.
Q. But it would be -- if it was sold for 250, you
are saying it is eight -A. $8.
Q. -- by 250 -A. Yes.
Q. -- whatever that comes out to -A. Yes. That's correct.
Q. -- about three and a half percent.
Okay. And do you know, Dr. Makowski, how many
copies of this manual's fourth edition have, in fact,
been sold?
A. No, I don't.
Q. Do you have a general sense, based on how much
money you have received?
A. It may be several hundred copies.
Q. To ballpark it, would you say, is it more than
100?
A. I think it might be between two and three
hundred.
Q. Now, you launched quite a PR effort to try and
promote this book with your fellow editors, correct?
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A. I didn't launch any PR efforts at all.
Q. Well, you appear, for example, on YouTube in
videos promoting the book for sale; isn't that
correct?
A. AOCS set that up. That was their doing, asked
us if we would be willing to sit and have that done.
Q. Now, when I look at that video, it appears
that this book -- this manual or book was published
as a spiral-bound document. Is that correct?
A. I think so, yes.
Q. So it is not published in the form of a
hard-copy book such as one you'd -A. That's correct.
Q. -- conventionally buy?
And just to help the reporter -THE REPORTER: So, "a hard-copy book" -BY MR. MANGI:
Q. -- such as one would typically purchase in a
store; is that correct?
A. That is correct.
Q. Now, did AOCS publish a certain number of
these in a first run?
A. I have no idea.
Q. Do you know whether AOCS was printing copies
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on demand when they were ordered versus preparing a
big set?
A. I have no idea.
Q. Do you know whether there have been subsequent
printings?
A. I have no idea.
Q. Do you know whether this book is available in
any stores?
A. I think it's available on Amazon, if you
consider that to be a store.
Q. Anywhere else?
A. Not that I'm aware of, but I haven't checked
to see.
Q. Now, what were -- how did you and your fellow
editors divide up your responsibilities here?
A. We sat down at one of our meetings and looked
at the chapters of previous manuals and decided how
we might divide those up, and also if there were
additional chapters that we should add.
Q. And, in fact, this is based on a third edition
that was edited by Dr. Lynn Bates and others?
A. Yes. And a second edition and a first
edition.
Q. Are you familiar with Dr. Bates?
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A. I am.
Q. Do you know Dr. Bates -A. I do.
Q. -- personally?
Do you consider Dr. Bates to be an authority
in the microscopy field?
A. I do.
Q. Do you consider Dr. Bates' publications to be
reliable and accurate sources of information?
A. I don't know if I have ever read any of his
publications.
Q. But you think highly of his abilities?
A. I do.
Q. Now, Chapter 5 in this book, which is
Detecting Animal Products in Feed and Feed
Ingredients, that was a new chapter that you added in
the fourth edition; is that correct?
A. That's correct.
Q. And this is based in part on the BSE issues in
Europe and things like that?
A. That is correct.
Q. The other chapters in this book were in the
prior edition, correct?
A. That's correct.
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Q. But in some instances, you updated them and
added some sections?
A. Yes.
Q. Who was responsible for writing the new
Chapter 5?
A. Neil Vary.
Q. And you didn't write Chapter 5, correct?
A. I did not.
Q. Now, Chapter 3, which is Feed Ingredients of
Animal Origin, that is one of the chapters that was
substantially carried over from the third edition; is
that correct?
A. That's correct.
THE REPORTER: Sir, you're still
interrupting. You have to just give a little bit of
a beat after his question. I'm sorry.
MR. MANGI: That's fine.
THE REPORTER: "Was substantially carried
over from the third edition" -BY MR. MANGI:
Q. From the third edition; is that correct?
A. That's correct.
Q. Who among your editors was responsible for
editing Chapter 3?
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A. I believe that was also Neil Vary.
Q. Now, how much of this manual did you
personally author?
A. I did Chapter 1, much of Chapter 2, all of
Chapter 6, and I consulted on Chapter 4 and 9.
Q. And to be clear, when you say you did those
chapters, you mean that you updated them, correct?
A. That's correct.
Q. You did not in fact write them?
A. Some -- some language may have been added or
revised.
Q. But the majority of the language was carried
over from the third edition, correct?
A. Much of it.
Q. Now, you state in your report that "this book
is the leading manual for the microscopic analysis of
agricultural products, including animal protein
products, in the United States and worldwide."
A. Correct.
Q. Do you recall saying that?
A. Uh-huh.
Q. What is your basis for that claim?
A. Neil Vary and Pascal Veys are both
international. One is Canadian, and one is Belgian.
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And from -- that's anecdotal, indicating from them
that this is considered to be the manual that's used
by their regulatory agencies.
Q. So do I understand correctly that the only
basis for that claim, then, is you or your fellow
co-editors' views of whether or not this is used by
certain agencies?
A. The other reason is, at least within the
United States, it is the only agricultural microscopy
manual that we are aware of.
Q. So when -A. And AO -Q. I'm sorry. Go ahead.
A. AOCS also indicates it as being the leading,
because, again, they were not able to compare it to
anything of like publication.
Q. Do you know anything personally about whether
or not this is the leading manual in the rest of the
world, leaving aside America?
A. In Canada, my understanding is that it is. I
can't speak as -- as well about Europe.
Q. What's your basis for Canada?
A. Neil Vary and working with the Canadian Food
Inspection Agency.
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Q. So, for, let's say, Japan or China or India,
you don't know one way or the other -A. I do not.
Q. -- do you -A. I'm sorry.
Q. I'm sorry. Let me finish the question.
You don't know one way or the other whether or
not it is the leading manual in those countries?
A. I do not.
Q. You haven't engaged in any foreign language
publication review process?
A. Not in publication. I have been asked,
though, as a result of the manual, to teach a short
course in India.
Q. And with regard to the United States
specifically, where you work, your basis for saying
it's the leading manual for the microscopic analysis
of agricultural products is the fact that, as far as
you know, it is the only manual on this topic; is
that correct?
A. In addition to that, it has been purchased by
all of the state regulatory laboratories, and also
the FDA and other regulatory agencies.
Q. Has it been published by all 50 states?
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A. To my -- published by all 50 states?
Q. Purchased by all 50 states.
A. Oh, thank you.
To my understanding, it has been, but I don't
have a -- any kind of an accounting of who it is
that's purchased these.
Q. So, how do you know that?
A. Just, again, anecdotally.
Q. And how did you come to that information
anecdotally?
A. From speaking with individuals who are part of
some of the regulatory laboratories.
Q. And have you spoken to people in all 50
states?
A. No, I have not.
Q. How many states have you spoken to?
A. Three.
Q. And what other bases do you have for saying
that -A. That's the only basis.
Q. -- people in all states -- I'm sorry -- that
people in all states have used this manual and are
using this manual?
A. That's the only basis.
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Q. Well, I just want to make sure I understand
your testimony. A moment ago you testified,
Dr. Makowski, that one basis for saying this is the
leading manual in the United States is that it is
being used by all 50 states.
A. Uh-huh.
Q. Do I understand correctly that your only basis
for that claim is that it is being used by three
states?
A. It's my understanding, as a result of speaking
with individuals in those three states, that all
regulatory laboratories have a copy of this and are
using it.
Q. And who are those three people that you spoke
to?
A. Again, Patricia Ramsey and Glenn Kobata in
California, Kim Koch in North Dakota, and Marjorie
McCutcheon in West Virginia.
Q. And Ms. McCutcheon is one of your editors,
correct?
A. She is.
Q. And if I were to subpoena those three people,
would they tell me under oath that they told you this
manual is being used by all 50 states' regulatory
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agencies?
MR. ZARLENGA: Let me just object to that
question as calling for speculation.
BY MR. MANGI:
Q. Go ahead.
A. They may.
Q. They may?
A. I have no reason to believe that they
wouldn't.
Q. Did one of them in particular tell you that,
or did all three tell you the same thing?
A. No. We have been in conversation in our
meetings as to the sales of the manual, and during
those conversations, it had been relayed to me that
this had been picked up by the regulatory labs
throughout the United States.
Q. Do you remember who specifically told you
that?
A. I do not.
Q. Is there another edition planned?
A. Not at present.
Q. Now, going back to your CV, your Ph.D. is in
curriculum and instruction/science education; is that
correct?
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A. That's correct.
Q. That's from the University of Delaware in
1991?
A. That's correct.
Q. Did you obtain a hard-copy physical
certificate when you completed that degree?
A. Do you mean a diploma?
Q. Yes.
A. Yes, I have that.
Q. And if I were to look at that diploma, what
would it say on it about what your Ph.D. is in?
A. It would be a Doctor of Philosophy in
Curriculum and Instruction.
Q. So it does not, in fact, include the "/science
education" that appears on your CV?
A. It would not. Most -- most diplomas do not
include that. That would be considered to be a
concentration or a minor.
It would be on the transcript, but it would
not be on the diploma.
Q. So would the most accurate way of describing
your degree be a Ph.D. in curriculum and instruction
with a concentration in science education?
A. And genetics.
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Q. Now, you have a concentration in genetics; is
that your -A. Yes.
Q. -- position?
A. Uh-huh.
Q. Now, Dr. Makowski, your Ph.D. dissertation was
about -- was titled "High School Teachers'
Conceptions of Genetics and Their Influence on
Genetics Instruction"; is that correct?
A. That is correct.
Q. And your dissertation consisted of
interviewing high school teachers about how they
teach, and the subject area they were teaching was
genetics; is that correct?
A. That's part of it, yes.
Q. So, in fact, am I correct in understanding
that the subject of your Ph.D., and indeed your
thesis, was teaching, and the subject area of the
teaching was genetics?
A. That's correct.
Q. But you were not, in fact, studying genetics
per se; is that correct?
A. I'm studying others' understandings of genetic
concepts as they're being presented in the classroom.
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Q. And how they teach them.
A. Correct.
Q. Now, let me ask you to turn to the next
document. We are going to mark this as Exhibit 5 to
your deposition.
identification.)
BY MR. MANGI:
Q. All right. Dr. Makowski, I have handed you
what I have marked as Exhibit 5 to your deposition,
and you will see this is a written response in the
case by Nestle Purina's lawyers. Have you ever seen
this document before?
A. I have not.
Q. Let me ask you to turn to Page 12 of the
document.
And you will see at the bottom there, the last
response paragraph, at the bottom of Page 12.
A. Yes.
Q. Let me ask you to look at the second sentence
there, which says, "Dr. Makowski does not hold
himself out as having a Ph.D. in genetics."
Do you agree with that statement?
A. I do.
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Q. Is that truthful and accurate?
A. It is.
Q. Now, let me ask you to turn back to your
manual.
A. Uh-huh.
Q. And let's have a look at the page with the
Bates number PUR 190.
Do you have that page, sir?
A. Yes.
Q. That is your bio, correct?
A. Yes.
Q. Did you prepare that bio?
A. Ooh, I did not.
Q. Who prepared this bio?
A. I'm actually not quite sure. I think this
actually was the editors from AOCS when they did the
publication.
Q. And who were those editors?
A. I'm really not sure at this point who it was
that actually prepared it. Hmm.
Q. So if we were to look back -- if we were to
send a subpoena to AOCS for the time period 2010-2011
to find out who the editors were and ask them about
this bio, their testimony would be that they prepared
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this without any input or review from you?
A. I'm wondering if this came from a truncated
version of Facebook or something like that, where
it's the University of Delaware,
curriculum/instruction in genetic -- science
education and genetics. And sometimes those things
are truncated, and so this may have been lifted, if
you will, from portions of Facebook.
That's the only reason I would -- could see
why it would actually be listed as a Ph.D. in
genetics.
Q. What does Facebook say?
A. At one point, it -- I think what they do
sometimes is truncate a title, and I think Facebook
at one point had me down as University of Delaware in
genetics, but I think it's been corrected since then.
I think it's actually been updated.
But it's University of Delaware in curriculum
and instruction/science education/genetics.
Q. All right. Well, let's talk about that in a
moment, but -A. Okay.
Q. -- let's focus here.
A. Okay.
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Q. So, the bio in your book says, "James Makowski
received his Ph.D. from" -A. Yes.
Q. -- "the University of Delaware in genetics" -A. Yes, that's incorrect.
Q. -- "in 1991."
A. That's correct.
Q. Now, as you were looking at this a moment ago,
Dr. Makowski, my impression was you seemed to be
registering surprise; is that correct?
A. I actually was surprised, yeah.
Q. Have you ever seen this before?
A. I have. I just didn't realize it was there.
I probably was just taken by the picture more than
anything.
Q. I'm sorry. Could you help me understand? You
said you have seen it before but didn't realize it
was there?
A. Yeah. I either didn't recognize it or -either that or it didn't make it through the editing
process. But it certainly wasn't an intent on my
part to indicate that I have a Ph.D. in genetics.
Q. Dr. Makowski, when you wrote this book and it
was first published by AOCS, that must have been an
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important date for you. A memorable day?
A. I was glad to have it finished. It was a
project that I was glad to have over.
Q. It's nice to have -- when you have written a
book, it is nice to finally get a printed copy in
your hands, isn't it?
A. Yes, especially the pictures and all that we
had for this. This was the -- that was the main
achievement of this new edition, were all the
different photos that we were able to include in it.
Q. And when you got that printed copy,
Dr. Makowski, is it your testimony that you did not
look at or read your bio that was published in it?
A. I may have. Again, that was a few years ago,
but I may have read that.
Q. And did you notice that you were claiming in
your bio to have a Ph.D. in genetics?
A. Uh-huh. I also noted several other errors
throughout this that I asked them to change that had
not -- that still have not been changed.
Q. Let's start with the Ph.D. in genetics.
A. Uh-huh.
Q. So, when did you first become aware that the
bio for this book listed you as having a Ph.D. in
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genetics?
A. Probably soon after it was actually published,
because we had put final editing proofs out. And it
would have been included in that.
Q. Now, when you -- I'm sorry. Did you say you
put out final editing proofs after the book was
published?
A. No, no, no. Just prior to it being published.
Q. So let me ask my question again, then, so the
record is clear.
A. Uh-huh.
Q. When did you first notice that this bio was
listing you as having a Ph.D. in genetics? Was it
before or after publication?
A. It would have been in the final galleys.
Q. Now, let's back up, and we'll talk about that
in a minute.
Before we got to the final galleys, is it your
testimony that you did not write this bio yourself?
A. Not completely.
Q. Did you write the portion of this bio stating
you have a Ph.D. in genetics?
A. I do not think so. I do not remember writing
"Ph.D. in genetics," because I don't have a Ph.D. in
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genetics.
Q. Well, can you tell me, Dr. Makowski, with
certainty, that you did not write the language here
saying that you have a Ph.D. in genetics?
A. To the best of my knowledge, I did not
indicate that I have a Ph.D. in genetics.
Q. Is there any reason why you appear to be
qualifying your answer?
A. Because, again, this was back in two
thousand -- I don't even remember when it was
published at this point -- 2010? 2009? So it's five
years ago. And I'm just not remembering how it
actually was listed in those final galleys.
Q. Well, let me clarify my question. If you were
to ask me, Dr. Makowski, have I ever claimed to have
a Ph.D. in genetics, my answer would be no, because I
don't have a Ph.D. in genetics.
Are you able to give me a similarly
unqualified answer as to whether or not you wrote
this language claiming you have a Ph.D. in genetics?
A. I do not recollect writing that part of the
document indicating that I have a Ph.D. in genetics.
Q. But it is possible that you wrote it?
A. I don't remember writing it in that form.
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Q. My question is, is it possible that you wrote
it?
MR. ZARLENGA: I'll object to the form of
the question. Asked and answered. Argumentative.
BY MR. MANGI:
Q. Let me rephrase it to satisfy counsel.
Are you able to exclude the possibility that
you wrote this sentence?
A. I believe so, yes.
Q. Okay. So to be clear, you are able to state
categorically that you did not write this; is that
your testimony?
A. I think I have answered it already.
Q. Well, you answered it a couple of different
ways, so I'm giving you an opportunity to clarify -A. To the best of -MR. ZARLENGA: Let me just -- let me state
an objection here. This is getting very
argumentative. I do believe the question has been
asked and answered.
BY MR. MANGI:
Q. Go ahead, sir.
A. I believe I have answered the question.
Q. And would you do me the courtesy of answering
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it once more so I know your answer?
A. I do not believe that I wrote it in that form,
that response.
Q. In what form do you think you wrote it?
A. I think I indicated that I had a Ph.D. in
curriculum and instruction/science
education/genetics.
Q. So you think that the editors, then, changed
that to Ph.D. in genetics?
A. Whether it was changed, truncated, I can't
speak to that. Again, there were other errors that
we asked to have corrected that were not corrected
throughout the manual.
Q. Now, you said that you would have asked for
this to be corrected in the final galleys?
A. Uh-huh.
Q. And that's the final proof before publication?
A. Uh-huh.
Q. You have to answer verbally.
A. Yes.
Q. And how did you make that request?
A. These were submitted electronically, and then
we tried to make strikeouts or whatever, or simply by
e-mail, indicating that there were discrepancies and
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we'd like to have those changed.
Q. So, do you have a record of that
correspondence?
A. I do not.
Q. Was it sent by e-mail?
A. It was.
Q. You don't recall -- do you recall who sent it?
A. I do not.
Q. Do you know whether it was you or one of your
co-editors?
A. It may have been all of us with different
edits that needed to be performed.
Q. And do you recall who you sent it to?
A. It was to the publications department. I
don't know if it was to a particular person or if it
was simply to AOCS's editorial address.
Q. And when the book was then published, did you
check to see whether or not your corrections had been
made?
A. I did.
Q. And what was your reaction upon becoming aware
that this correction had not been made?
A. This and several other things had not been
changed, and we had asked them to be changed. And if
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I remember correctly, they said that if there -- if
there was an additional publication, they would
attempt to make those changes.
Q. In fact, the book is being published on an
ongoing basis as copies are ordered, isn't it,
Dr. Makowski?
A. I have no idea if that's the case or not.
Q. Have you asked AOCS that information?
A. No, I have not.
Q. Have you asked them to correct this anytime
they make a new print?
A. Only the initial time when I asked them to do
so.
Q. Are you troubled by the fact that what you
claim is your lead qualification in this field, this
manual, is out there in the marketplace reflecting a
qualification that you, in fact, do not have?
A. I am right now, but I wasn't previously,
because, quite honestly, I tend not to look toward
the back of the book. My using this manual is
primarily to look at the chapters. And so this is
supplemental, that I really don't even bother to look
at. So it is not something that's in the forefront
of my thinking.
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Q. We can agree, can't we, though, that bios can
be important to people that are considering
purchasing or that have purchased a book?
A. I'm not sure it is in this case.
Q. In a scientific field, Dr. Makowski, do you
think people -- purchasers of a technical scientific
book like this one are interested in knowing the
qualifications of the authors?
A. I can't speak for everyone, so, it's possible,
but it may not also be the case.
Q. Are you troubled by the fact that people may
have purchased this book thinking that you have a
Ph.D. in genetics, which in fact you do not?
A. I don't think my degree in any way adds or
subtracts to the actual content of the manual.
Q. But it may matter to a purchaser, mightn't it?
A. I'm not sure that it would.
Q. Are you aware of recent instances in which
book authors have run into substantial difficulties
after representing facts as true, or part of their
life story, that were not in fact true?
A. The only one I can think of was the one that
Oprah Winfrey had on her show, someone who did a
biography and concocted some information. But I have
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a feeling that many of those individuals take license
with much of their writing.
Q. What do you mean by that? You mean they -A. Embellishment.
Q. Would you consider this an embellishment?
A. No. I consider this to be an error.
Q. Let me ask you to answer this question on a
yes-or-no basis. Have you sought any legal advice
regarding the implications of having sold a book on
the basis of a false credential?
A. No, I have not.
Q. Have you reported to Messiah that your book is
being sold out there with a misrepresented
credential?
A. No.
Q. Did you insist to AOCS that they halt sales of
this book until this error is corrected?
A. No.
Q. Why not?
A. Again, I didn't think it was that important.
I had asked for it to be fixed, along with some of
the other things, and they -- their response again
was, when we would republish, they would attempt to
make those corrections.
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I haven't seen anything recently. I think
even the most recent ones that have been purchased,
those corrections still have not been made.
Q. Now, you're aware, aren't you, Dr. Makowski,
that in academia, in particular, misrepresentation of
academic credentials is considered a very serious
matter?
A. Yes.
Q. Nonetheless, you were not troubled enough by
this to seek some immediate remedy from AOCS?
A. Only in that I asked them to correct it.
Q. Are there any written documents that you have,
Dr. Makowski, confirming the fact that you asked for
this to be corrected at any time?
A. Not that I'm aware of.
Q. Are there any written documents you have
reflecting that you received an assurance that this
would be corrected?
A. No, I don't.
Q. Can you identify a single person by name who
you told that this should be corrected?
A. Not by individual name, no.
Q. Is there anything you can point to,
Dr. Makowski, other than your testimony here today,
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that would verify your account that you did not write
this and that you asked for it to be corrected in the
galleys version?
A. No.
Q. Are you aware of any information that would
contradict the account you have just given?
A. I am not. I do not have anything.
Q. Now, do you think, Dr. Makowski, that it would
be accurate to claim you have a Ph.D. with a genetics
emphasis?
A. I don't know if that would be wrong or not, as
long as the science education and
curriculum/instruction were initial -- initially
listed.
Q. By the way, Dr. Makowski, isn't it true that
for publications like books, certainly after the
mid-2000s, galleys are archived?
A. I have no idea.
Q. Do you know whether AOCS archives its galleys?
A. I have no idea.
Q. Now, do you think it would be accurate to
claim that you have a Ph.D. in science education,
genetics emphasis?
A. Yes.
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MR. ZARLENGA: Object to the form of that
question as asked and answered.
Go ahead.
THE WITNESS: I would not have any problem
with that.
BY MR. MANGI:
Q. You have, in fact, claimed that, haven't you?
A. I may have.
Q. Do you think that anyone looking at that sort
of a claim may think that you studied genetics?
A. I did study genetics.
Q. Well, you studied genetics in the context of
someone else teaching genetics?
A. No. That was my dissertation. I studied
genetics by taking graduate-level genetics courses at
the University of Delaware.
Q. But it was not, in fact, the subject of your
Ph.D., correct?
MR. ZARLENGA: Object to the vagueness.
BY MR. MANGI:
Q. Put another way, you don't have a Ph.D. in
genetics.
A. I do not have a Ph.D. in genetics.
Q. Now, you mentioned your Facebook profile.
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A. Uh-huh.
Q. Let's have a look at that. I'm going to hand
you a document that we're marking as Exhibit 6 to
your deposition.
identification.)
BY MR. MANGI:
Q. Now, Dr. Makowski, do you recognize Exhibit 6
as a Facebook version of your profile, among other
James Makowskis?
A. I see mine in there, yes.
Q. And did you in fact -- I'm sorry, withdraw
that.
Have you seen this prior to today?
A. Yes.
Q. Now, if you have a look at the top of the
page, you will see this is a Google cache version of
the page as it appeared on June 4, 2014. Do you see
that?
A. Yes.
Q. And here it states that you studied Ph.D.
genetics at the University of Delaware. You see
that, sir?
A. I do, uh-huh.
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Q. And that's the fourth Jim Makowski from the
top, correct?
A. That is correct.
Q. And that is in fact you, correct?
A. It is.
Q. And -A. I'm glad I'm not the one above that.
Q. Yes.
And is it your testimony, Dr. Makowski, that
this does not reflect information that you inputted
on Facebook?
A. No. That's actually an accurate statement. I
did study Ph.D. genetics at the University of
Delaware.
Q. So this is your -- in fact, the claim you are
making on Facebook?
A. Again, I'm not sure how that was listed. It's
an accurate statement, though.
Q. Now, Dr. Makowski, do you think that someone
looking at this claim would think that, in fact, your
Ph.D. is in genetics?
MR. ZARLENGA: Same objection. Calls for
speculation.
THE WITNESS: I couldn't answer that.
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BY MR. MANGI:
Q. Do you think this -- it is misleading to
present your Ph.D. in this way?
A. Not at all. I'm not presenting my Ph.D. that
way. While I was studying -- while I was completing
my Ph.D., I studied genetics at the University of
Delaware.
Q. Okay. Now, let's say I have a Ph.D. in
literature, and as part of that Ph.D., I studied an
author that wrote about architecture.
A. Uh-huh.
Q. Do you think it would be appropriate for me to
represent my Ph.D. as saying I studied architecture?
A. I think you said you studied an author of
architecture.
Q. Right. While I got a Ph.D. in literature.
A. It would depend on the extent to which you
studied that particular author and that particular
genre.
Q. Let me refine the hypothetical. Let's say I
have a Ph.D. in literature, but I took a course in
architecture while I was doing that Ph.D. because I
wanted to understand some literature about
architecture. Do you think it would be appropriate
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for me to say I studied Ph.D. architecture?
A. I think that would be up to you, whether you
wanted to include that or not. It is certainly not a
false statement.
Q. Would you agree with me, Dr. Makowski, that
even if this is technically true, that you did in
fact study genetics courses while doing your Ph.D.,
nonetheless, this gives the misleading impression
that your predominant field of study was genetics?
form of the question. Calls for speculation.
BY MR. MANGI:
Q. Go ahead.
A. Again, it simply indicates that I studied
Ph.D. genetics. I also studied Ph.D. science
education, and I also studied Ph.D. curriculum and
instruction.
Q. But in fact, curriculum/instruction is what
your Ph.D. is in, correct?
A. My Ph.D. is in -- yes. But I took Ph.D.-level
courses, graduate-level courses in genetics.
Q. Do you think it would be more accurate for you
to claim that you studied curriculum development at
the University of Delaware?
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A. I think it would be more accurate to say my
Ph.D. is in curriculum and development -- curriculum
and instruction.
Q. Then why didn't you say that?
A. Because I wanted people to know that I studied
genetics as well. I teach genetics. And all of my
hard sciences -- all the hard science courses I took
at the University of Delaware were in genetics, and
that's the basis for allowing me to teach genetics at
Messiah College.
Q. So you think this is an entirely appropriate
way to describe your degree?
A. I have no difficulty with it at all.
Q. No qualms about it?
A. None whatsoever.
Q. Let me show you what I am marking as Exhibit 7
to your deposition.
identification.)
BY MR. MANGI:
Q. Dr. Makowski, this is an updated version of
your Facebook profile, and we printed this one on
August 26th.
A. Uh-huh.
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Q. You recall the previous version we looked at
was cached from June of 2014.
A. Yes.
Q. Do you have that in front of you, sir?
A. Uh-huh.
Q. And we see now that sometime between June 4th
and August 26th, you changed your profile on
Facebook, didn't you, sir?
A. I did, uh-huh.
Q. And now it says, "Studied Ph.D. curriculum and
instruction at the University of Delaware," correct?
A. That is correct.
Q. Now, Dr. Makowski, why did you make that
change, given that, as you just testified, you view
your prior description as entirely accurate and
appropriate?
A. Facebook notations change all the time. I was
simply updating my Facebook account. I'm more
involved today or at times more involved in
curricular issues at Messiah, and also being a part
of NSTA and NARS, that I felt that at this point, I
would like to list myself as -- with an emphasis in
curriculum and instruction. It is simply an update
of my Facebook page.
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Q. Nothing to do with accuracy?
A. No.
Q. Now, Dr. Makowski -A. Because this statement is as true as the
previous.
Q. When did you open your Facebook account?
A. I could not tell you that. I have no idea.
Q. More than a month ago? Before June?
A. The original?
Q. Yeah.
A. Oh.
Q. When did you first get on Facebook?
A. I really couldn't tell you, but it's been
several years.
Q. How long did you claim to have a -- to have
studied Ph.D. genetics at the University of Delaware?
A. I don't remember. I don't know how long
that's been on there.
Q. Do you recall making any changes to that,
other than the one we've looked at, over the years?
A. On the profile? I think there have been some
that have been made. I can't tell you what they are
at this point.
Q. How else have you described your Ph.D. on
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Facebook?
A. I don't know if I've described my Ph.D. any
differently. I have described other things as
being -- differently.
Q. Now, were other things happening between May
and August of this year, Dr. Makowski?
THE WITNESS: I don't understand the
question.
BY MR. MANGI:
Q. Between May and August of this year, you have
been involved in this litigation, haven't you, sir?
A. Correct.
Q. And in the course of May, Blue Buffalo was
pushing quite hard in the litigation for disclosure
of your testing report and the identity of the
tester, correct?
A. I imagine so.
Q. Were you aware of that, generally?
A. No.
Q. Did you know that your report was being used
in the course of a litigation?
A. I knew it was going to be used in a
litigation. I didn't know if it was currently being
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used in a litigation.
Q. Have you come to realize, Dr. Makowski, that
there would be some scrutiny given to you and your
credentials and your work, since you were now
involved in potentially a litigation?
A. I probably didn't think about that at all,
quite honestly.
Q. Were you aware of that it?
A. No.
Q. Did the fact that you were now involved in a
litigation or that you had done work on this project
have any bearing in your decision to change how you
were describing your qualifications?
A. No.
Q. Now, am I correct in understanding,
Dr. Makowski, that in your view, as you've described
it today, it is inappropriate to claim you have a
Ph.D. from the University of Delaware in genetics,
but it is perfectly fine to state you studied Ph.D.
genetics at the University of Delaware?
A. I'd say it is inaccurate to have listed that I
have a Ph.D. in genetics, and it is certainly
accurate that I did study Ph.D. genetics at the
University of Delaware.
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Q. Now, other than what we have looked at so far,
Dr. Makowski, do you recall other instances in which
you have used language that may suggest the field of
study in your Ph.D. and the area of your
qualification is, in fact, genetics?
A. I can't name anything off the top of my head.
Q. Is that something you have claimed in other
settings in the past?
A. I can't remember if I have or haven't.
Q. You use LinkedIn, don't you, Dr. Makowski?
A. Yes.
Q. And you've had a LinkedIn profile for some
years?
A. Not very long. I'm not even sure what
LinkedIn really is, to be honest with you.
Q. Well, you're aware that it's an online
networking tool?
A. Yes, uh-huh.
Q. And you are aware that part of the information
you list there is a profile?
A. I think so.
Q. And you provide academic background in
LinkedIn, correct?
A. Again, it's been -- I hardly ever look at
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either LinkedIn or Facebook. Very rarely. You know,
I'm not one that spends a lot of time on my
particular profile, or especially LinkedIn, that's
something I never look at.
Q. But you have claimed to have studied Ph.D.
genetics on LinkedIn as well, haven't you,
Dr. Makowski?
A. I may have. I have not seen it, again, in -since its inception, since my site was begun. So I
really can't speak to that. I would have to go look
at it.
Q. Dr. Makowski, do you, as you sit here today,
having looked at the universe of claims we have
looked at so far around your Ph.D., have any concerns
that people in the marketplace, whether companies
like Purina looking for consultants or people looking
to purchase this book, may look at the corpus of
information about you that's out there and think that
you have a Ph.D. in genetics?
A. I don't know if I can speak to what other
people would be thinking.
Q. Have you ever orally claimed in discussions
with any clients or potential clients of Windsor
Laboratories to have a Ph.D. in genetics or to have
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studied Ph.D. genetics?
A. Not to my knowledge.
Q. How do you typically describe your Ph.D., your
field of Ph.D. study, when asked by clients or
potential clients?
A. Most clients or potential clients never ask me
about my Ph.D.
Q. Do you recall it ever coming up?
MR. MANGI: We can take a break. We can
take a break.
MR. ZARLENGA: Okay.
THE VIDEOGRAPHER: The time -- the time is
now 10:00, and this concludes DVD No. 1.
(A recess was taken.)
THE VIDEOGRAPHER: The time is now 10:12,
and we are back on camera, and this is the start of
DVD No. 2.
BY MR. MANGI:
Q. Dr. Makowski, your consulting business goes by
the name Windsor Laboratories; is that correct?
A. That's correct.
Q. I'm sorry. Just to help the reporter, please
wait for me to finish.
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Can you tell me a little bit about the
background of Windsor Laboratories?
A. Windsor Laboratories was originally started by
two individuals, Ted and Janet Windsor, back in the
1950s. Janet, who is Ted's wife, later died of
breast cancer. He found himself to be overwhelmed
with the amount of work that needed to be completed
and actually contacted Messiah College to see if he
could hire a student part-time to help with some of
the preparation of samples and what have you.
When the call was directed to me by our
department chair at the time, it was directed to me,
and I was talking to him about some individuals, I
realized the extent of the work that needed to be
done and the depth of knowledge that was required,
and I said to him I thought -- I think probably you
could use someone other than a student for this.
Would you be willing to accept a faculty member?
And at the time, I was just looking for
something part-time, an avocation, something
different from my teaching. And so I said, I would
be willing to learn about this. It sounds like an
interesting area to look at.
He did let me know he could only pay minimum
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wage. I said that wasn't a problem, because it's a
new thing. It was something I was getting a chance
to learn.
Q. You didn't know anything about this field
microscopy area prior to that time?
A. Feed microscopy?
Q. Feed microscopy, I'm sorry.
A. Nothing prior to that time.
Q. Now, let me ask you to help me with dates.
A. Okay.
Q. I note your CV says you've been the owner and
chief microscopist since 1987. But I have also seen
a speech you gave where you said you got that call
you just described from Mr. Windsor in February of
1990. Which of those is accurate?
A. '86. '86. 1990 is probably when I began to
take over the business for Mr. Windsor -- from
Mr. Windsor.
Q. Now, where is Windsor Laboratories located?
A. 894 Hawthorne Avenue, Mechanicsburg,
Pennsylvania.
Q. Is that your house?
A. That's my residence, yes.
Q. So you have a section of your house that --
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where you do your consulting work for Windsor
Laboratories?
A. We have a dedicated space for that, yes.
Q. Where is that in your house?
A. It's in the lower level of the home.
Q. Now, let me show you a few pictures that were
produced by your counsel yesterday.
A. Uh-huh.
identification.)
BY MR. MANGI:
Q. We have marked this as Exhibit 8 to your
deposition. Do you recognize these photos?
A. I do.
Q. Did you take these photos?
A. I did.
Q. And are these of the lower level of your house
where you have your setup for Windsor Laboratories?
A. It is.
Q. Is this the -- what people would call the
basement of your house?
A. Yes.
Q. And let's just have a look at some of the
equipment we see here.
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A. Okay.
Q. On the first page with pictures, there is a
white microscope in the center of the picture.
A. This is the lower -- the second picture, the
lower picture?
Q. Correct.
A. Okay.
Q. What is that?
A. The white one is a stereo microscope that has
a .65 up to 5 zoom lens, in addition to the
eyepieces, so it is 6.5 to 50 magnification.
Q. And what is the instrument to the right of the
picture which also looks like a microscope?
A. It is indeed a microscope. It is a compound
microscope.
Q. And so we understand this terminology,
Dr. Makowski, when I was a kid, I had a, you know,
chemistry set that came with a microscope and some
slides you could look at under the light. Was that a
compound microscope?
A. I wasn't there. I don't know what your
microscope was.
Q. Well, typically like the types of microscopes
you would see in a school or that you might buy for a
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chemistry set, do those tend to fall into one
category versus the other?
A. I have actually seen both, but I would suspect
that you are referring to a compound microscope.
Q. If it has a light on it and it's shining onto
a slide that you are looking at, does that tell you
which type it is?
A. You would need to be more specific. Are we
talking about the light passing through a slide, or
are we talking about the light reflecting off of a
slide?
Q. Light passing through.
A. Passing through? Then that would be a
compound microscope.
Q. Now, the second page of pictures, can you
describe generally what we are seeing here?
A. Which picture would you like me to start -well, it's the same thing.
Q. Well, they are both the same section of it.
A. This is an area where I do what's referred to
as a chemical flotation separation, where we use two
different density solvents, and samples are initially
ground, and then they are weighed. And there is an
Ohaus balance there for weighing into porcelain
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evaporating dishes.
And then we subject those to varying amounts
of carbon tetrachloride and benzene, or what we
sometimes call petroleum ether. And that allows us
to produce several density-dependent fractions, which
are then dried and weighed and placed on an
examination board.
Q. Thank you. And we are going to talk about
those details in a moment, but I just want to focus
on the hardware for now.
A. Uh-huh.
Q. In the second picture at the bottom, there is
sort of a piping mechanism -A. Yes.
Q. -- under the counter. What is that?
A. That is part of the laminar flow in order to
remove solvents, heavy solvents. Carbon
tetrachloride is a heavy solvent, and so it's heavier
than air, and so it rolls off, and then it's pumped
out.
Q. Other than the stereo microscope and the
compound microscope that we looked at on the first
page, what other types of microscopes do you have at
Windsor Labs?
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A. There is -- there are two stereo microscopes
and one compound microscope. Those are the only
microscopes that I have.
Q. If you turn to the last page of pictures.
A. Uh-huh.
Q. Are there any microscopes in these two
pictures that we haven't looked at already?
A. The one in the front of the top is a stereo
microscope. It's an older botanical scope. It's a
boom microscope, stereo.
Q. And are you referring to the gray -A. I am.
Q. -- microscope on the table -A. Yes.
Q. -- to the left of the picture?
A. Yes, uh-huh.
Q. Now, Dr. Makowski, what is the total value of
the equipment that you have in your basement with all
of these materials?
A. I would say somewhere in the neighborhood of
fifteen to twenty thousand dollars.
Q. Does anyone work at Windsor Labs other than
yourself?
A. No.
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Q. Have you been the only person working at
Windsor Labs since the early '90s?
A. Yes.
Q. How many clients do you have at present?
A. I am unsure of that answer. I have to go and
actually look. It's -- it's well over 100, 200. The
reason that's difficult to answer is because a client
may send in a sample, and then we may not hear from
that client for another year. Other clients are
sending samples in on a more routine basis.
So if I take it in total, we are probably well
over 300 clients.
Q. How much money have you generated through
Windsor Labs since you started that business?
A. In 1990?
Q. Uh-huh.
A. Do you want gross or net?
Q. Why don't you give me both.
A. I don't know if I can give you net.
Q. Give me what you can.
A. I would have to go look at tax returns to try
to figure something like that out.
Probably $200,000. That is very rough, very
ballpark.
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Q. Understood.
And that is $200,000 over the 24 -actually -A. Well -Q. -- 30-year period almost?
A. Actually, no. Let's make it closer to
probably $400,000. I was thinking more of a ten-year
span. So over a 20-year span or so, it would be
about 400.
Q. Okay. And let's just get the span right. Are
we talking about 1987 to present?
A. No. 1990 or so to present. Again, '86, I was
just beginning to learn the techniques and all with
Mr. Windsor, so I was technically employed by him.
Q. So over the 24-year period, you have made
approximately, gross, $400,000?
A. Yes.
Q. And how much did you make in the last year?
A. The year is not over, and so I'm not really
sure that I can answer that question. I would -- I
would surmise that it's probably, for work that has
actually been performed, 25, 28 thousand dollars.
Q. Is this more or less than what you've made on
average over the last five years?
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A. It is a bit more. Each year I tend to see an
increase, though.
Q. Has -- now, you say in your report that you've
billed Nestle Purina approximately $30,000, including
reimbursements.
A. Uh-huh.
Q. Is that correct?
A. Uh-huh.
A. Yes.
Q. What proportion of that 30,000 are your fees
as opposed to reimbursements?
A. Reimbursements are probably close to 12,000.
Some of that is for time spent on this litigation.
Q. Ah. Well, let me ask you to clarify then. If
reimbursement includes your time, then what's the
rest of it?
A. The other 10,000?
Q. Yeah. Well -A. Or -Q. -- you said reimbursements are about 12 out of
the 30?
A. Yes.
Q. Okay. And that includes your time?
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A. Let me see if I can restate this. The amount
of time -- the amount that was billed for sample
analysis, okay, was probably in the neighborhood of
$18,000.
Q. Okay. And what was the balance?
A. And then the remainder would be
reimbursements.
Q. Reimbursements for what?
A. Time, preparation, telephone calls,
photography. Any other incidentals that might come
into play.
Q. Can you differentiate for me between the total
amount given to you for your professional services as
opposed to, you know, here is a hard-copy expense I
bought; I bought this solvent, reimburse me for it.
In other words, total money you have made for your
services versus just disbursements or reimbursement
of hard costs.
A. Over all clients?
Q. For this one, this project.
A. This one, no, I can't do that. I don't charge
based on materials, only time spent analyzing.
Q. Is Nestle Purina your biggest client this
year?
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A. This year, it is.
Q. Have you done any work for Nestle Purina prior
to this year?
A. I have actually done work for several Nestle
Purinas. I have done work for Purina, Nestle Purina,
and Nestle Purina PetCare. They are all clients.
Q. When did you first start working with any of
those entities?
A. Purina, probably 28 years ago.
Q. What sort of work did you do for them
originally?
A. It would be the same -- same type of thing,
where we're analyzing animal feeds and trying to give
a percentage of the major minerals and the major
ingredients.
Q. And could you describe, generally, how much
and what type of work you've done for all of those
Nestle entities over the years?
A. Oh, I would have to go back and check my
records. I'm not sure that I could somehow separate
those out over 28 years.
Q. Did you do work for them every year?
A. Yes.
Q. Was it all this type of microscopy of animal
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feeds that you've described?
A. Yes, uh-huh.
Q. Do you do work for Nestle Purina as part of
Nestle Purina's routine quality control process?
A. No.
Q. Do you know whether Nestle Purina uses
microscopy as part of its routine quality control
procedures?
A. My understanding is that they do.
Q. And who do they use for that?
A. I have no idea.
Q. Do you know whether it's internal or external?
A. My understanding is it's internal.
Q. And you don't know the names of the people
that are in that group?
A. I do not.
Q. Over the course of the years since 1990, of
the approximately $400,000 that you've described in
gross revenue for Windsor Labs, what proportion,
approximately, is from Nestle Purina or its related
entities?
A. Since 1990? I'm not sure I can answer that.
I would say no more than 2 to 3 percent of the total,
from 1990 through -- over 28 years, yes.
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Q. From 1990 to present?
A. Yes.
Q. So to this -- let's say -- let's take
3 percent, to the large side. Three percent of
$400,000, that would be about $12,000.
A. It's more than that then. Let me think. Math
has not always been my strong suit this way. That's
why I use a calculator.
Q. Well, why don't you think about it in dollars,
if that's easier.
A. It is very difficult to determine, because,
again, initially, the company was -- there is Purina,
and then there was Nestle Purina, and there is Nestle
Purina PetCare.
Q. Roll them all together.
A. Roll them all together. All right. Let's
ballpark it at 20 percent.
Q. So approximately $80,000?
A. Perhaps. Uh-huh.
Q. Is Nestle Purina and its related entities your
biggest client?
A. Not always, no. This year. This year.
Q. Overall?
A. No, no.
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Q. Are there other clients of the 300-odd you've
described who since 1990 you've billed more to than
Nestle Purina?
A. Probably an equivalent amount.
Q. Okay. What entities are those?
A. Pan American Grains in Puerto Rico is one that
I can think of.
Q. Any others?
A. I have done work for Cargill and their
subsidiaries, but I -- again, I couldn't give a
dollar or a percentage estimate on that, but they
have been a substantial client, as well as the
University of Puerto Rico and their agricultural
department.
Q. Do you know whether any of those are bigger
than Nestle Purina in terms of your client base?
A. Their client base?
Q. No. In terms of your clients, do you generate
more money from any of them as compared to Nestle
Purina and its related entities?
A. I would have to go back and check.
Q. Now, Dr. Makowski, changing gears, are you
familiar with an entity referred to as AOAC?
A. Yes.
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Q. And what is AOAC?
A. I think it's the American Organization of
Analytical Chemists.
Q. Okay. And what is that?
A. I think they are quantitative chemists.
Q. It is an entity that, among other things, sets
certain standards or methodologies and things like
that, correct?
A. Right.
Q. And those are generally considered in the
testing community to be authoritative standards; is
that correct?
the question as overbroad.
BY MR. MANGI:
Q. Go ahead.
A. I'm not sure I could answer the question.
Q. Well, let's break it down.
You are aware, aren't you, that the AOAC's
official methods have, for example, been adopted by
the FDA?
A. I'm not aware if they have been or not.
Q. Well, let me show you a document, just so we
are working from the same base.
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A. Okay.
Q. I will show you what I am marking as Exhibit 9
to your deposition.
identification.)
BY MR. MANGI:
Q. Now, this, Dr. Makowski, is a federal
regulation. For the record, it is 21 CFR 2.19. And
let me ask you to turn to the bottom right where
there is a section headed "Methods of Analysis." Do
you see that?
A. I do.
Q. And you will see it says, "Where the method of
analysis is not prescribed in a regulation, it is the
policy of the Food and Drug Administration in its
enforcement programs to utilize the methods of
analysis of the Association of Official Analytical
Chemists," or AOAC.
A. I see that.
Q. Okay. So you do see, don't you, that, in
fact, the FDA uses the official methods of the AOAC?
A. I do.
Q. That doesn't surprise you, does it?
A. I have no reason to be surprised by it.
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Q. And you are aware, aren't you, that other
government entities similarly recognize the AOAC
methods as authoritative?
A. They may.
Q. Are you aware, for example, that the USDA
laboratories follow the AOAC protocols?
A. I'm not -- I couldn't state that
categorically.
Q. Are you familiar with an entity called AAFCO?
A. Yeah. That's the American Association of Feed
Control Officials.
Q. What do you know about that entity?
A. Again, they, I think -- my understanding is
that they are the -- kind of a regulatory agency for
definitions as to what ingredients are and what they
should contain or not contain.
Q. And are you aware that AAFCO also follows the
procedures of AOAC International?
A. I'm not aware of that, but I'm not surprised.
THE REPORTER: I didn't get the last part
of your -- "AOAC and" -MR. MANGI: International. AOAC
International.
THE REPORTER: And your answer?
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THE WITNESS: I'm not aware of that, but I
would not be surprised if they did.
BY MR. MANGI:
Q. Did you know that the president -- do you know
who the president is of AOAC International?
A. No.
Q. By happy happenstance, it is Erik Konings from
the Nestle Research Center in Switzerland. Were you
aware of that?
A. Not at all.
Q. Okay. So, generally speaking, Dr. Makowski,
what is your view as to the usefulness,
appropriateness, of the AOAC official methods when
conducting testing?
A. I would assume that if they are those that -the tests that are accepted as being the valid
testing, that that would be what an industry
representative would use for a particular test.
Q. Now, let me show you the next document that
we're marking as an exhibit, which we are going to
mark as Exhibit 10 to your deposition.
A. Uh-huh.
identification.)
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BY MR. MANGI:
Q. Are you familiar, Dr. Makowski, with the
document I have marked as Exhibit 10?
A. Yes.
Q. Now, let me ask you to turn, to begin with, to
the last page of that exhibit, which has a Bates
number PUR 1024.
A. Okay.
Q. And you will see that is a letter to you at
Windsor Labs from Dawn Weilbacher -A. Yes.
Q. -- at Nestle Purina.
A. Uh-huh.
Q. There is a designation by her name, "3N."
What is that?
A. I have no idea.
Q. Do you recall getting this letter?
A. Yes.
Q. And how did this project come about?
A. I don't know if I would categorize it as a
project. These were simply samples that were sent to
me, and they were -- as the letter indicates,
"Enclosed are 11 samples," and they need testing for
formula breakdown.
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Q. Did you have any discussions with
Ms. Weilbacher or anyone else at Nestle Purina before
getting this in the mail?
A. Not to my knowledge, no.
Q. Is it customary for them to just send you
stuff to test without any prior discussion?
A. Yes.
Q. And did you have any discussions with
Ms. Weilbacher or Ms. -- or anyone else at Nestle
Purina about this project before conducting the
analysis?
A. Not to my knowledge, no.
Q. Now, for this round of testing, do I
understand correctly from this letter that all of the
samples were sent to you directly by Purina?
A. That's correct.
Q. You didn't go out and source them yourself?
A. No.
Q. And did they arrive in bags?
A. Yes.
Q. And were these the same bags in which the
products are sold in the marketplace?
A. No.
Q. What were the -- can you describe what the
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packaging was?
A. Let me try to remember this one. I think they
were black Whirl-Pak bags, larger Whirl-Pak bags.
Q. And what is a Whirl-Pak bag?
A. A Whirl-Pak bag is one that has some tabs on
it with some metal on the inside, and so once you
place the sample in there, you can grab the ends and
whirl it, and it will lock it, kind of like a Ziploc
will. You can fold the ends in to prevent it from
opening.
Q. Is it an unmarked bag?
A. Initially it is. But these would have labels
on them with these corresponding laboratory numbers.
Q. Were those numbers put on there by Nestle
Purina before they sent them to you?
A. I would assume so, but I didn't see them do
it, so I can't answer if they did or didn't.
Q. Did you put labels on that -A. I did not, no.
Q. And when you got the bags, did they have
labels on them?
A. Yes.
Q. Now, prior to the time you did this round of
testing, were you familiar with Nestle Purina's pet
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food products from your prior work?
A. Have I heard of them or have -Q. Well, had you studied them?
A. I had done work for them previously, yes.
Q. Did you have a sense of what Nestle Purina's
pet food looks like?
A. No. It looks like everybody else's pet food,
quite honestly.
Q. Well, there are differences, aren't there,
Dr. Makowski, in appearance, in terms of kibble shape
and color and things that are mixed in, between
different brands of pet food?
A. There are differences, but I wouldn't be able
to look at a kibble and say, oh, that's a Nestle
kibble versus a Nutro kibble versus anyone else's
kibble.
Q. Now, these samples that you tested in
January of 2014, where are these today?
A. I'm not sure. They are probably gone at this
point. Destroyed.
Q. Okay.
A. Thrown away.
Q. And who destroyed them?
A. I did.
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Q. And why did you do that?
A. We only keep samples for a limited period of
time, unless instructed by the client to try to
retain them for a longer period of time.
Q. And did the client or counsel instruct you to
retain these samples?
A. No.
Q. When did you destroy them?
A. Probably within four weeks of my completing
the analysis.
Q. So that would have been sometime in February
of 2014?
A. Yeah. The analysis was completed probably
early January, so I would say probably by the end of
January or so, they were probably disposed of.
Q. How do you dispose of them?
A. They go in the trash.
Q. Now, where did you store these samples after
you got them from Nestle Purina?
A. Just in a small bin.
Can we go back to one of your pictures?
Q. That's okay. I'm just asking generally in
terms of what took place -A. Generally within the -- in the laboratory --
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Q. -- at Windsor Labs?
A. -- in the lab in a locked bin or a bin that -a plastic bin.
Q. Now, did you have any communications with
Ms. Weilbacher before you sent her results?
Q. How did you -A. Other than this communication.
Q. And by "this communication," you are referring
to the January 6th charts that are at the front of
Exhibit 10?
A. Actually, the December 27, 2013 letter from
Dawn Weilbacher.
Q. Right. Well, let me clarify my question.
That was a letter from her to you, right?
A. Yes.
Q. And then at some point, you sent a
communication to her with your results.
A. Yes.
Q. Right?
Is the January 6th component, i.e.,
Exhibit 10, leaving aside the last page, is that what
you sent Ms. Weilbacher in terms of your results?
A. Yes.
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Q. How did you send them to her?
A. I -- initially, I send via e-mail, and then
secondarily hard copy with invoice in U.S. Mail.
Q. So, was there a cover e-mail that went with
this transmission?
A. No. I simply send it as an attachment to -as a Word document attachment to an e-mail that
simply says, "Attached are the results of my analysis
of the samples sent to our laboratory."
Q. Did you have any discussions with
Ms. Weilbacher or others at Purina about this
analysis after you sent it?
A. I'm trying to remember. Someone, and I'm not
sure -- and again, there are a couple in here -whether they said they were pleased with the results
and they were going to send additional samples.
Now, I don't remember if that was Dawn or if
that was someone else, but I do recall that they -someone indicated that the results were acceptable
and they would be sending more samples.
Q. Any other communications that you recall?
A. No.
Q. Now, some of these samples here are identified
with codes, the first page being an example; is that
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correct?
A. Uh-huh. Uh-huh.
Q. And some others have a code but also a product
name, and you will see those on Pages 1022 -A. Yes.
Q. -- towards the bottom and 1023. Do you see
that?
A. Uh-huh. I do.
Q. Now, how did you know which was which if the
products had no names when they came in?
A. These would have had -- in addition to the lab
numbers, they would have had that designation on
there as well.
Q. And you recognized those three, the two on
1022 and the one on 1023, as being products that are
sold by Nestle Purina?
A. I have seen advertisements for One Beyond. I
have no idea about Canyon Creek Ranch. I've never
seen that before. And I think I've seen
advertisements for Pro Plan.
Q. Now, in generating this January of 2014
analysis, did you follow the same procedures that are
outlined in your July report with regard to your
second round of testing?
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form of the question as overbroad.
BY MR. MANGI:
Q. Go ahead.
A. I always follow the same procedure for every
sample that I receive.
Q. And were there any differences between the
procedures you followed in this round of testing
versus the subsequent round reflected in your July
report?
A. Not the actual analysis, no.
Q. Let me show you another exhibit, which we are
going to be marking as Exhibit 11 to your deposition.
identification.)
BY MR. MANGI:
Q. Dr. Makowski, do you recognize what we have
marked as Exhibit 11 to your deposition?
A. Looks like laboratory notes.
Q. And are those your laboratory notes?
A. Yes.
Q. Now, you will see that these notes appear to
correspond to the three named products we saw
identified in Exhibit 10.
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A. Uh-huh.
A. Yes, yes.
Q. You will see the names at the top left,
One Beyond, Canyon Creek Ranch and Pro Plan Select on
the top left.
A. I do.
Q. So are these your laboratory notes relating to
the analysis of those three products?
A. Yes, they are.
Q. Now, do these come from a spiral-bound lab
notebook?
A. They do.
Q. What did you use the rest of the notebook for?
A. I'm sorry. I didn't hear the question.
Q. What did you use the rest of the notebook for?
A. Subsequent samples.
Q. Did you -- is it your practice to prepare
notes relating to each sample that you are studying?
A. Yes.
Q. Now, did you in fact prepare similar notes for
the other unidentified samples that are identified
only by a number in Exhibit 10?
A. Yes.
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And where are those notes?
They would be in my lab notebook.
Well, they haven't been produced to us in this
Do you know why that is?
No, I don't.
But you have them in your possession?
I may. I would have to go back and look.
MR. MANGI: I call for the production of
the lab notebook relating to the unidentified
samples.
MR. ZARLENGA: It would have been nice if
you said -- if you indicated that prior to today,
given all the time that you've spent seeking this
deposition, seeking documents, preparing for it, but
I hear you.
MR. MANGI: It would have been nice if you
had produced it, but fine.
Now -MR. ZARLENGA: The same would be true of
all the Blue Buffalo documents we are waiting for,
Mr. Mangi.
BY MR. MANGI:
Q. Now, Dr. Makowski, did you take any
photographs or record any other documentation
Q.
A.
Q.
case.
A.
Q.
A.
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relating to your observations in January of 2014?
A. No.
Q. Now, let's have a look at the specific
identifications that you have made in Exhibit 10. Do
you have Exhibit 10 in front of you, sir?
A. I do.
Q. Okay. Now, the first sample identified there
is a number ending in 1596A(k) pet food kibble. Do
you see that?
THE REPORTER: Is that A or 8?
MR. MANGI: K for Karachi.
BY MR. MANGI:
Q. Now, you'll see that there you have an
identification of poultry by-product meal at
12 percent; is that correct?
A. That is correct.
Q. Now, as you sit here today, Dr. Makowski, do
you recall what specifically you saw in that sample
that led you to conclude it included poultry
by-product meal?
A. Leg scale, primarily. That's the primary
marker that I recognized within this meal.
Q. To be clear, Dr. Makowski, I'm not asking now
about general methodology.
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A. No, I'm -- I'm -Q. I'm asking about specific samples. Right? Do
you understand that?
A. Anytime I have listed poultry by-product meal,
it's because I found those markers to be present. So
given that I have listed it in this sample, that
means I did see those markers in this particular
sample.
Q. And by "markers," you mean the leg scale?
A. The leg scale. The leg scale. Yes.
Q. Anything else?
A. Occasionally we will find what we call toe
pad, small portions of beak or claw. I'm not sure in
this particular sample if all of those were present
or just some of those things were present.
Q. Do I understand correctly, your testimony as
you sit here today is, you think all of the samples
would have included leg scale, but you don't know
whether they may have included any other materials
that you would consider indicia of by-product meal?
vagueness of the question in terms of, quote, all of
these samples, unquote.
BY MR. MANGI:
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Q. I'm referring to all of the samples on
Exhibit 10 identified only by numbers and not
product names.
A. I can't tell you specifically which markers I
found in which sample, but the presence of the
markers that are indicative of poultry by-product
meal were recognized by me in any sample indicating
the presence of poultry by-product meal.
Q. So, as you sit here today, you are not able to
tell me what specifically you saw in any sample that
led you to the conclusion that there was poultry
by-product meal, correct?
form of the question as argumentative and misleading.
BY MR. MANGI:
Q. Go ahead.
A. Could you restate the question?
Q. Sure.
As you sit here today, you are not able to
tell me what specifically you saw in any one of the
samples reflected in Exhibit 10 where you identified
poultry by-product meal that led you to that
conclusion.
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THE WITNESS: I can't tell you the
specific marker in any one particular sample. I can
only tell you that markers existed.
My -- in thinking back on poultry
by-product meal, the primary marker that is able to
be recognized is leg scale. So if I saw leg scale
present -- the amount of bone is another marker, but
anyway, the leg scale presence.
BY MR. MANGI:
Q. As we sit here today, Dr. Makowski, given that
the samples have been thrown away, you didn't take
any photographs, am I correct in concluding that
there is no way for another scientist to verify or
validate your conclusions with regard to the presence
of poultry by-product meal in these samples?
A. I don't know how they would.
Q. And indeed, even you, as you sit here today,
don't recall what specifically it was in each of
these samples that led you to that conclusion?
MR. ZARLENGA: Same objections stated
earlier.
BY MR. MANGI:
Q. Correct?
A. Correct.
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Q. Okay. Now, let me ask you to turn now -actually, let me ask you some broader questions
first.
A. Uh-huh.
Q. Now, at some point thereafter -- in your
report, you describe it as February -- Nestle Purina
asked you to do some additional analyses, correct?
A. Yes.
Q. And what were those analyses?
A. Again, un- -- well, they were dog food -- or
pet food samples.
Q. And what were you asked to do?
A. Do a microscopic analysis on those to report
major minerals and major ingredients, to do a formula
breakdown.
Q. And how was -- how were you given that
project?
A. I think at that point, I had been contacted
by an individual with a law firm from the State of
New York, just indicating that samples would be
arriving, and that we'd like you to go ahead and
perform these analyses.
Q. I'm sorry. Did you say an individual
representing the State of New York?
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A. No. They were -- I think the call came from
somewhere in New York, I think.
Q. But it was from a lawyer?
A. Yes.
Q. Do you recall who the lawyer was?
A. I think it's -- his first name was August.
Let me think. August Horvath.
Q. And did you speak to anyone at Nestle Purina
about this project before it was given to you?
A. No, not to my knowledge. At least, I don't
remember that.
Q. It came directly to you from Mr. Horvath?
A. Uh-huh.
Q. I'm sorry. You have to answer verbally.
A. Yes. Yes.
Q. And did Mr. Horvath tell you anything about
the project beyond what you've just described?
A. No.
MR. ZARLENGA: I'm going to instruct you
not to answer the question, and ask counsel to
refrain from violating the Federal Rules of Civil
Procedure as to attorney communications.
MR. MANGI: It is information he relied
on, clearly, because it's the scope of his project.
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MR. ZARLENGA: That's not what the rule
says, Counsel, and I think you know that.
MR. MANGI: It is information he relied
on.
BY MR. MANGI:
Q. Now, Dr. Makowski, the work that you did in
this second round of testing, was that carried out
between February and July of this year?
A. Yes.
Q. When did you do the actual physical testing?
A. Between February and July.
Q. Let's talk about dates a little bit. Now, you
say in your notebook you got the samples in Feb,
correct?
A. I believe so.
Q. And if you look at Exhibit 1, which is your
report -- do you have a copy of that?
A. I do.
Q. If you turn to the page with the Bates
number 212, you will see this is where the report
switches from narrative to the tables. Do you have
that page?
A. Yes.
Q. And you will see that there is a date there of
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April 21, 2014. Do you see that?
A. Uh-huh.
A. Yes. Yes.
Q. Does that reflect that your analytical testing
was complete as of April of 2014?
A. That indicates that I had typed this report on
that date.
Q. Well, is it your practice to type these
reports while testing is ongoing, or do you do them
after the testing is done?
A. Yes. In some cases, when the analysis is
complete, and at other times, I will continue to look
at a sample. But what's reflected in the report is
the final analysis.
Q. So, did you add or amend the content in these
tables after April 21st of 2014?
A. No. No.
Q. Now, let me show you another document. This
is Exhibit 12 to your deposition.
A. Uh-huh.
identification.)
BY MR. MANGI:
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Q. Do you recognize Exhibit 12?
A. It looks like my laboratory notebook.
Q. And that's dated March of 2014, correct?
A. That's correct.
Q. So, just piecing together the timeline, does
Exhibit 12 being dated March, does that suggest you
began the test -- testing process in March?
A. No. It indicates that that's when the samples
were logged into the notebook. So, at least they
were received at that -- sometime at that point.
Q. So they were received by March, and then you
didn't change any of your conclusions after
April 21st -A. No.
Q. -- is that correct?
A. That's correct.
Q. Okay. And so the testing work was done,
logically, in the months of March or the first three
weeks of April, correct?
A. That's correct.
Q. Now, your report itself is dated from July; is
that correct? July 23rd?
A. Uh-huh.
Q. And so, what work were you doing between April
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and July in relation to this project?
A. Nothing with regard to the analysis. This was
an executive summary that -- between myself and
August Horvath.
MR. ZARLENGA: Just don't include any
discussions with counsel, please, or input from
counsel, communications with counsel. Just exclude
that from your answer.
THE WITNESS: So this was -- this was done
subsequently to give more information as to how the
analysis was completed.
BY MR. MANGI:
Q. And let me ask a question that I think will
clarify this. Am I correct in understanding that
between April 21st and July 23rd, other than working
on the narrative portion of this, which is 207 to
211, you did not do any other actual analytical
testing work?
A. That's correct.
Q. Now, as part of your report, you included four
photographs; is that correct?
A. Yes.
Q. Did you take any other photographs while
performing the work reflected in this report?
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A. No, I did not.
Q. Now, feed microscopy, as you describe it in
your manual, generally speaking, is based in part on
comparisons of what you see to known reference
standards, or what -- a picture of what you know
something looks like, correct?
A. Correct, or the actual physical reference
sample. Yes.
Q. Sure.
So, visual comparisons are at the heart of
this discipline; would you agree?
A. I agree.
Q. And photographs are certainly a helpful record
of what you saw when you look at particular exhibits,
correct?
A. They can be if one has the equipment to take
photographs.
Q. Do you have the equipment to take photographs?
A. I did not when this was -- this analysis was
performed.
Q. What sort of equipment do you need to take
photographs?
A. You need to have excellent lighting, typically
fiberoptic lights. You need to have, again, a good
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high -- or well -- good optics in a stereo
microscope. And you need to have a camera and
software system for that.
Q. Is this a regular digital camera, or is it
something different?
A. Oh, no, no. This is a much -- a much better
camera than just a regular digital camera. You
can -- you may be able to get away, using something
like that, but typically, picture quality is poor.
Q. Do you now have a camera?
A. I do.
Q. When did you buy that?
A. I'm trying to think. Probably in September or
October.
Q. And why did you buy that?
A. Well, given some of the things that have been
going on, I have been wanting to do micr- -- or
photography, but was not able to afford the type of
equipment that is necessary to do that.
Q. How much does the photography equipment cost?
A. A new microscope, the software, the camera,
the light source, any other extraneous kinds of
things, probably in the neighborhood of between ten
and twelve thousand dollars.
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Q. And how much did you spend to buy the
photographic -A. A little over $10,600, and then an additional
1,000 -- maybe $1100 or so, for a computer.
Q. And did you spend that yourself, or were you
reimbursed for that by Nestle Purina or any other
client?
A. I was reimbursed for that.
Q. By who?
A. Nestle.
Q. And where did the four pictures appended to
your report come from?
A. That was prior to purchasing this equipment.
I took the samples over to Messiah College, where we
have some rudimentary cameras for taking photographs
through a stereo microscope.
Q. Why did you do that?
A. I had been asked to do that.
Q. By who?
A. I can't answer that question. I think it goes
to -Q. I'm asking by who. I'm not asking about the
substance of communications.
Were you asked to take pictures by counsel?
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MR. ZARLENGA: You can answer the
question.
THE WITNESS: Yes. They thought it would
be good to do that, to try to get some photographs of
what we saw in the samples, what I saw in the
samples.
BY MR. MANGI:
Q. Why did you decide to take only four
photographs?
A. These are some of the markers that they had
asked me to take, some of the things that would be
indicative of either the presence of grain or the
presence of poultry by-product meal.
Q. Can we agree that for another scientist
looking to validate your work, it would have been
very useful if you had pictures of everything you had
seen in the course of your analysis?
A. Yes.
Q. That would enable another scientist to then
see whether or not they agreed with the visual
comparisons and conclusions you were making, correct?
A. Yes.
Q. And, indeed, feed microscopy, in general, is
something you have described as primarily an art,
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correct?
A. No. It's both an art and a science.
Q. Okay. And there is an element of subjectivity
involved in the comparison related to the individual
skill of the microscopist; would you agree?
A. I wouldn't use the word "subjectivity." I
would use "level of experience" in being able to
recognize different ingredients.
Q. Now, Messiah College has a handbook, doesn't
it?
A. I'm not sure what -- what handbook you mean.
Q. Well, there are -- it is a Messiah College
Employee Policy and Procedure Manual.
A. Okay. Yes.
Q. Are you familiar with that document?
A. Yes.
Q. And one of the provisions in that document
relates to the use of university equipment for
non-university purposes, correct?
A. Yes.
Q. And that is generally prohibited other than in
emergency instances where you can get particular
permissions; is that correct?
A. I wouldn't say it's an emergency. I would say
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we use college equipment whenever it is for a
scholarly pursuit that may enhance the person's
reputation and/or the college's reputation.
Q. Okay.
A. So if it is a research project of some sort
and it's not necessarily funded even by the college
or whatever, we -- we certainly, in asking
permission, are given access to various forms of
equipment.
Q. Okay. Did you ask permission from Messiah in
this instance to use its equipment for this
photography that you conducted?
A. Yes.
Q. And who did you ask?
A. Erik Lindquist.
Q. And who is that?
A. He is one of the other faculty members in our
department, and he was the one who basically oversees
the use of the camera -- of this particular camera.
Q. And did you tell him that this was for part of
your consulting business?
A. Yes.
Q. Now, let's turn back to your lab notebook. Do
you have that document? I believe it is to the left.
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Now, let me ask you to turn to the first page
from the actual notebook, which has a Bates number
258. And do you have that page, sir?
A. I do.
Q. Now, did you make these notes as you were
conducting your analyses?
A. I did.
Q. Is there any part of these notes that you
added thereafter?
A. No.
Q. So all of this was done contemporaneously?
A. Yes.
Q. Are you quite sure about that?
A. I am.
Q. Now, you -A. Let me back up. Some of the -- afterwards,
after the report had been completed, I did look at
the bags afterwards, after the report had been
submitted, and I wrote in some of the things that
were supposedly in pet foods: sweet potatoes,
carrots, blueberries, cranberries.
And from my notes, I want to indicate that
these are not -- for me, are not able to be seen in
this type of a sample. So that anytime in the
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future, if we try to look for something that someone
asks, can you see blueberries, sweet potatoes,
carrots, those types of things, my response would be,
no, we are not able to see these things.
Q. So the entries that have dashes by them in the
left-hand column on Page 258, it's your testimony
that you added those entries after doing the
testing -A. Yes.
Q. -- when you looked at the ingredient labels;
is that correct?
A. That's right.
Q. Now, you will see, for example, that there is
an entry in that same column we were just looking at,
left-hand side, do you see there is an entry for
fat, 15?
A. Yes.
Q. And underneath that, do you see flax, 1?
A. I do.
Q. Were those two entries done while you were
doing your analysis -A. Yes.
Q. -- or thereafter?
A. It was while.
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THE REPORTER: I would ask you to wait
until he finishes.
MR. MANGI: I know it's hard. Don't
worry, we'll get there.
Now -THE REPORTER: "Were those two entries" -BY MR. MANGI:
Q. Did you do those during your analysis or
after, when you looked at the labels?
A. During.
Q. Now, there is another entry two down from
"flax" that says something starting with a D. What
is that word?
A. Dehydrated alfalfa meal. That would be my
abbreviation for dehydrated alfalfa meal.
Q. Okay. And that is listed at 0.2?
A. Uh-huh.
Q. And that is also an observation you did -A. Yes.
Q. -- during your analysis?
A. Uh-huh. Uh-huh.
Q. Now, between those two, there is a blank line
that says "potatoes," dash. Do you see that?
A. Yes.
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Q. Now, is that an entry you did during the
analysis or thereafter?
A. That was during the analysis. Okay.
Q. Now, as I understood what you said a moment
ago, Dr. Makowski, just help me understand -A. Uh-huh.
THE REPORTER: You can't -THE WITNESS: Yes.
THE REPORTER: You can't say "uh-huh."
MR. MANGI: He understands. He'll forget.
THE REPORTER: I'm putting -- I would have
to put an answer and a question every time you say
"uh-huh."
MR. MANGI: I hear you. I'll give you a
break when he speaks. Let's do our best.
BY MR. MANGI:
Q. Now, I understood what you said earlier,
Dr. Makowski, to mean that the entries with a dash by
them you had added after doing your analysis. Did I
misunderstand?
A. Those that are grouped together.
Q. And what about those that aren't grouped
together?
A. Anything above the dehydrated or below were
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ones that I had during the analysis.
Q. You said anything above or below you had
during the analysis?
A. Above or below that group of dashes.
Q. I'm sorry. Perhaps I'm not understanding, but
I seem to be thoroughly confused.
A. Okay.
Q. The entries that have dashes by them, right,
potatoes, carrots, sweet potatoes, et cetera, did you
enter those while doing the analysis or after you
looked at the bags?
A. The entries for carrots, sweet potatoes,
blueberries, cranberries and apples were added after
the analysis. Potatoes, ahead of time. The reason I
added potatoes ahead of time is, again, what we find
in a lot of pet foods are various starches, and what
I am seeing, again, from experience, is often we are
seeing potatoes or potato starch. So I wrote that
down initially as just an indication that we may find
something like that in there.
The difficulty is that in an analysis like
this, it is difficult to see actually potatoes. And
so, subsequent to that, I indicated the amount of
starch that would be present.
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So, for me, in my -- again, this is a working
document that are my notes to help me ascertain
what's there. I am suggesting that there's starch.
It could be from potatoes. That's all that that
suggests.
Q. There is an entry towards the bottom of that
column, "NaCe, 0.51." Do you see that?
A. I do.
Q. What is that?
A. Salt.
Q. Now, why, as you were doing your analysis, did
you put an entry for NaCe -A. NaCl.
Q. I'm sorry. What is it, L?
A. L.
Q. L.
Why did you put an entry for NaCl so many
lines down, leaving so much blank space after the
dehydrated alfalfa?
A. Because that's more of a chemical test, and I
put all of my chemical tests down at the lower level.
Q. Now, at the top left hand, there is some
handwriting. What is that?
A. "Wilderness Adult Chicken Recipe."
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Q. And that's also something you worked on while
doing this analysis?
A. Afterwards.
Q. Okay. So I had asked you earlier if there was
anything here that you did not write while doing your
analysis. Is that just something you forgot to
mention?
A. What I was alluding to were the actual -things that were germane to the analysis itself, the
actual ingredients.
Q. So, let me ask you the question again so we
are clear.
Is there anything on this page that you did
not write down at the time you did the analysis,
other than the brand name at the top left and the
entries with dashes that appear after "dehy" -dehydrated?
A. No, I don't think so.
Q. Now, you said you did chemical tests. I
haven't seen discussion of chemical tests in the
report.
A. Okay.
Q. What chemical tests are you referring to?
A. The sodium chloride, the salt, is done using a
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silver nitrate titration. And in that case, we take
two grams of the sample. We add 18 milliliters of
water to get a 1 to 10 dilution. That's mixed over
time. And then we remove some of the liquid,
transfer that into a smaller test tube. Again,
dilute it a little bit more. And then we add one of
these titration strips to that, which gives us an
approximate reading of the amount of sodium chloride
that is present, or least the amount of chloride that
is present. And we would assume that, in this case,
the chloride would be salt, or it could be choline
chloride, which we are not able to identify.
Q. Is there a reason why you don't describe what
you just described in your report?
A. That's not the intent of the lab notebook. I
know what NaCl means. I don't need to write the
notes in there to myself to let me know what that
means.
Q. I'm asking about your report.
A. In the report itself?
Q. Uh-huh.
A. I didn't think it was all that important as to
how salt was determined. Salt is such a minor
constituent in this.
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Q. Now, is there a reason why you used different
color inks?
A. Yeah. I always carry two pens. And as I'm
doing an analysis, it's just -- again, this is a
process. It's not just sitting down at one time and
writing it and coming up with the answer.
I will sit. I will look. I'll put the sample
away for a little bit. I'll come back and look at it
again. Whichever pen I grab, that's the pen I use.
Q. Are you aware it's considered contrary to
standard laboratory practice to memorialize notes in
different color inks?
form of the question as lacking in foundation.
BY MR. MANGI:
Q. Go ahead.
A. This is not a standard laboratory notebook
that would be used for a publication or reference.
These are simply my notes to myself as I'm looking at
the analysis -- or doing the analysis.
Q. Are notebooks generally prepared for
publication -A. No.
Q. -- or for the author's use?
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A. I think it would depend on the notebook.
Q. Do you think sometimes scientists, when they
are using their lab notebooks, are preparing notes
for publication rather than as their notes?
A. Sometimes, yes.
Q. Now, there is a cross on the bottom right of
the page.
A. Uh-huh.
Q. What is that?
A. That means I had finished the analysis.
Q. Are you aware that typically it is considered
standard laboratory practice to have each page of the
notebook signed and witnessed?
MR. ZARLENGA: Same objection. Lacks
foundation.
THE WITNESS: I'm not sure who we'd have
sign that, other than myself. An X to me is my mark
that I have completed that analysis. So an X is a
de facto signature.
BY MR. MANGI:
Q. But, in fact, you do have a signature,
correct?
A. I just made a mark to myself indicating that I
finished with that sample.
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Q. Sure. But my question is a little different.
You have a signature that is different from an
X that you use, for example, on a check or a legal
document, correct?
A. Yes.
Q. And you use that as a measure of authenticity?
A. Yes.
Q. You don't sign any of your lab notebook pages?
A. No.
Q. That's not your practice?
A. No.
Q. Now, at the top right hand on Page 258, in the
right-hand column, there are entries for kibbles and
bits, and then there is some numbers to the right of
them. Can you explain what that is?
A. This was the initial sample that was taken
from the large bags, so let's back up. The bags that
were sent to me for analysis where -Q. Actually -- I don't mean to interrupt. I'm
actually going to ask you a lot of questions about
that process later, so we will get to the sampling
methodology. I'm really just asking what those
designations mean.
A. That would be the amount of kibble and the
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amount of bits that were weighed by me from that
retained sample.
Q. And are the numbers to the far right
percentages based on those weight measures?
A. They are.
Q. On the left-hand column, you'll see the top
three entries say "chicken," "CM" and "TM." Do you
see those, sir?
A. Uh-huh. Uh-huh.
Q. And you have to answer verbally.
A. Yes.
Q. And what is CM? What does that stand for?
A. Chicken meal.
Q. And what does TM stand for?
A. Turkey meal.
Q. Are there other abbreviations you use in the
course of your notes for referring to different types
of meals?
A. FM would be fish meal.
Q. Okay. Any others?
A. PBM would be poultry by-product meal.
Q. Any others?
A. If I was looking at shrimp meal, I might say
shrimp M. Soybean meal is SBOM, for soybean oil
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meal.
Q. And you use -- do you use those abbreviations
consistently?
A. Yes.
Q. Let me ask you to have a look at the right
column, three rows from the bottom. And what is that
entry there?
A. It says "Poultry M."
Q. Is that an abbreviation?
A. That's another for poultry meal.
Q. Poultry meal.
A. Uh-huh.
Q. And what is the number that you provide there
next to poultry meal?
A. Nine.
Q. And what does that mean?
A. That means approximately 9 percent of the
total would be poultry -- poultry.
Q. Poultry meal?
A. No. Initially, poultry meal. Then, again, as
I began to analyze this particular sample again,
after I had written that down, giving a list of some
of the things I had seen, going back then and
studying it further, saw that there was poultry
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by-product meal as opposed to poultry meal. And so
in the actual report, it probably reflects poultry
by-product meal as opposed to just poultry meal.
Q. Now, at one stage in this analysis, Dr. Dravid
submitted some criticisms of your analysis. Have you
seen that document?
A. I have.
Q. And one of the criticisms he submitted related
to inconsistencies between your notebook and your
final results; is that correct?
A. That's correct.
Q. Okay. And is this one of the
inconsistencies -A. It would be.
Q. -- that you noticed?
Now, so it is your testimony, as you sit here
today, that you initially identified this as poultry
meal, but then you subsequently changed your mind and
decided it was, in fact, by-product meal; is that
correct?
A. I didn't change my mind. I studied it further
and categorized it more accurately as poultry
by-product meal.
Q. Well, is it your practice to write things down
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in your notes identifying the product before you form
at least an initial conclusion as to what it is?
A. Yes.
Q. Okay. So you will just write things down
randomly?
A. No. I will write them down if they are within
a particular grouping. Again, the way to distinguish
between poultry meal and poultry by-product meal is
to look at the particular markers that are present or
absent. An initial or a cursory view of the product
simply -- I simply examined, saw that there was
poultry meal. Subsequent analysis, subsequent study
of it, I found some markers that would indicate it
was poultry by-product meal.
Q. Well -A. So as I -Q. I'm sorry. Please go ahead.
A. As I was typing the report then -- again, this
is process, this isn't final document here. The lab
notebook is not final document. Okay? The report is
final document.
So as I was typing, looking, going back and
forth, I felt it was poultry by-product meal.
Q. Well, does this reflect to you, Dr. Makowski,
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that there is an element of subjectivity to this
analysis, where even you first thought it's poultry
meal, and then you changed your mind and decided it
is something else?
MR. ZARLENGA: Let me just object to that
question as argumentative and misleading.
THE WITNESS: The point is, I did not
change my mind, any more so than anyone else who had
been doing an analysis of something and initially
they suspect it could be something, but what they're
doing now is refining it and indicating it is
specifically something within that grouping.
BY MR. MANGI:
Q. With regard to the sample 001-2014, which is
reflected on the lab notebook at Page 258, do you
recall what specific marker you saw in the bits that
led you to conclude there was 9 percent poultry
by-product meal in that product?
A. I'm not sure I can speak to this one in
particular. I would surmise or guess that it was leg
scale.
Q. Now, I understand you are surmising based -is that based on your general practice of how you
identify poultry by-product meal?
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A. It's the standard practice of all individuals
who identify poultry by-product meal.
Q. But let me ask you, sir, please, to focus on
my specific question.
With regard to this individual sample,
001-2014, can you tell me what specifically you saw
in the bits component of that sample that led you to
conclude it contained 9 percent poultry by-product
meal?
A. I can only tell you that I saw a marker that's
indicative of poultry by-product meal.
Q. You don't know what that marker was
specifically for this sample?
A. I don't remember what that specific marker
was.
Q. And, indeed, there is nothing in your notes or
your report that will tell us what that marker was,
correct?
A. That is correct.
Q. And, indeed, we can agree, can't we, that your
notes are inconsistent on this point, for whatever
reason, with your report, in that the notes reflect
poultry meal at 9 percent, and the report reflects
poultry by-product meal at 9 percent; is that
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correct?
MR. ZARLENGA: I will object to the
term -- to the use of the term "inconsistent" as
vague.
BY MR. MANGI:
Q. Go ahead.
A. I don't think it is inconsistent, I think it's
in process. At beginning, again, it is simply listed
as poultry meal. And again, once the marker was
identified, then it was recognized as poultry
by-product meal.
Q. And you have no pictures or other records of
what you observed, such that another scientist could
validate the conclusion reflected in the report that
there is 9 percent poultry by-product meal in the
bits; is that a fair statement?
A. I think you have already asked that question,
and I have answered it.
Q. Is it a fair statement?
A. Yes.
Q. Now, there is an entry -- there is an entry on
this chart that is two -- the second row from the
bottom in the right-hand column. Do you see that,
sir? It appears to start with a G, or a C perhaps.
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A. Yes.
Q. It is under "Poultry M."
A. Yes.
Q. What is that?
A. Ground yellow corn.
Q. And what does it say in terms of the number
there?
A. 0.5, which is .5 percent, a half of 1 percent.
Q. And do you recall what your report says about
the proportion of ground yellow corn in this sample?
The corresponding sample you may find on Page 212.
A. 0.2.
Q. And Page 212 is, indeed, the corresponding
chart relating to these notes, correct?
A. It is.
Q. And, again, you have a different number in
your report than you do in your notes; is that
correct?
A. That's correct.
Q. And do you view that, again, as another
example of your having looked further and arrived at
a different number?
A. It is.
Q. And you took no pictures of your ground yellow
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corn identifications, did you, sir?
A. No.
Q. So, again, there is no way for another
scientist, looking at your notes and your report, to
validate your conclusions, is there?
A. That's correct.
Q. And, indeed, the pictures that you attach in
relation to the poultry by-product meal
identification, all three of those are from one
sample, correct?
A. Yes.
Q. And, indeed, in your report, you only identify
the specific markers that you saw in one particular
product, which is the same one you have the pictures
of, correct?
A. I'm not sure I understand what you are asking.
Q. Sure.
Well, in your report, in relation to this
question of what specifically did you see in any
particular sample that led you to say it has poultry
by-product in it, you only provide that information
in relation to one product; is that correct?
form of the question as misleading and a
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mischaracterization of Exhibit 1.
BY MR. MANGI:
Q. Go ahead.
A. My understanding was, these pictures were to
be taken for clarification so that we could see what
they would look like when they're projected from the
microscope. So an individual could look at them and
say, this is perhaps what this looks like.
Q. Let me -- let me amplify my question.
On Page 211 of your report -A. Uh-huh.
Q. Let me ask you to turn to the top of that
page, and you say -- you are referring there to two
samples of Blue Buffalo Life Protection Indoor
Chicken & Brown Rice Formula.
A. Uh-huh.
Q. Do you see where I am pointing to?
A. Yes.
Q. And you say, "In both the original and
duplicate samples, I found approximately 22 to
24 percent poultry by-product meal present in the
kibble. In both instances, I found small fragments
of egg shell, raw feather, and leg scale."
Do you see that, sir?
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A. I do.
Q. Now, other than that description, is there
anywhere else in your report, your notes or any of
your other documentation where you describe what
specific markers you saw in any particular sample or
product that led you to conclude that sample included
poultry by-product?
the question as overbroad.
THE WITNESS: These are the markers that
we use to distinguish between poultry meal and
poultry by-product meal. Those are the markers that
I saw. Those are what I reported -- or used to
report a poultry by-product meal.
BY MR. MANGI:
Q. Respectfully, sir, let me ask my question
again.
A. Okay.
Q. Other than the markers you have identified
here on Page 211 with regard to this particular
product, and the two samples of this particular
product, is there anywhere else in this report, your
notes, or any other documentation where you describe
what you saw in any particular sample that led you to
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conclude that particular sample had poultry
by-product meal in it?
A. Beyond the two samples that are noted here,
no.
Q. And, indeed, the pictures that you took all
relate to that same product, correct?
A. One of the two samples, uh-huh.
Q. Yes?
A. Yes.
Q. And so given the absence of pictures and the
absence of a description of markers, can we agree
that, leaving aside for a moment that product and its
two samples, there is no way for another scientist to
validate your conclusion as to the presence of
poultry by-product meal in any of these samples?
A. Based solely on the laboratory notebook and
the report? No.
Q. And so the record is clear, when you say "no,"
you're agreeing with me that there is no way for
another scientist to do that, correct?
A. That's correct.
form of that question as argumentative and
misleading.
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MR. MANGI: Did you get the answer?
BY MR. MANGI:
Q. Was your answer "correct"?
A. Yes.
Q. Now, let's continue on with your notes, sir,
and let me ask you to turn to Page 263 in the notes.
A. That's the PUR?
Q. PUR number, correct. Okay?
A. Uh-huh.
Q. And alongside that, let me ask you to pull out
the corresponding page from your report, which you
should check yourself, but you may find at PUR 217.
A. Okay.
Q. Do you have that, sir?
A. I do.
Q. And are those, in fact, the corresponding
pages?
A. They appear to be.
Q. Now, this is one of the products -- one of the
three kibble samples where you have identified the
presence of poultry by-product meal, correct?
A. Correct.
Q. And in this instance, again, isn't it true,
Dr. Makowski, that your notes state CM or chicken
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meal at 22 percent, whereas your report states
poultry by-product meal at 22 percent?
A. That's correct.
Q. And you view this as another instance where,
upon further reflection, you changed that descriptor
from "chicken meal" to "poultry by-product meal"; is
that correct?
A. Yes.
Q. Let's have a look at the second of the three
samples where you identified poultry by-product meal
in the kibble. And you will find that at PUR 285 in
the notebook.
A. Uh-huh.
Q. And you'll see, perhaps, that that corresponds
to PUR 238 in your report. Do you have that, sir?
A. Okay. Yes.
Q. In this second of the three examples, again,
your notes say CM or chicken meal at 24 percent; is
that correct?
A. That is correct.
Q. And in your final report table, that now
states poultry by-product meal at 24 percent,
correct?
A. That is correct.
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Q. This is another example, isn't it, where your
notes say something different, for whatever reason,
than your final report; is that correct?
A. That's correct.
Q. Let's turn to the third of the three examples,
which you will find at PUR 262. And you may find the
corresponding page at PUR 216. Do you have that,
sir?
A. Not yet. What was the second one?
Q. 216.
A. Thank you.
Q. Okay. And are those, again, the corresponding
pages from the lab notebook and the final report?
A. Yes.
Q. Now, in this third set of lab notes, you do,
in fact, have an entry in your notes for PBPM. Do
you see that, sir?
A. I do.
Q. Yes?
A. Yes.
Q. And there are various different numbers
written next to that. Do you see that?
A. I do.
Q. And why are there so many different numbers
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there?
A. Because as I continued to look at the sample
and reflecting on it, I changed those a little bit to
reflect my final observation.
Q. And what are the three numbers written there?
A. One looks like 22, 25, 32.
Q. And is one of them your final conclusion
designated in the notes from those three?
A. Twenty-two would be.
Q. Twenty-two. And how did you -- how have you
designated that 22 in your notes?
A. It looks like I have circled it.
Q. And is that a tick mark by it?
A. Yes.
Q. And does that reflect that's your final
number?
A. That reflects that that's what I typed in the
report.
Q. Now, Dr. Makowski, we have seen so far at
least three examples -A. Uh-huh.
Q. -- the poultry M and the two CMs -A. Uh-huh.
Q. -- where you had in your notes a reflection of
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a finding of chicken meal or poultry meal -A. Uh-huh.
Q. -- and then subsequently in your final report,
you have poultry by-product meal. Do you recall that
generally?
A. Yes.
Q. Are there any instances in your notes or
throughout this entire project where you identified
something as by-product meal in your notes and then,
on further analysis, changed your mind and designated
it as chicken meal or poultry meal?
Q. Now, if check marks reflect what is in your
report, then why aren't there checks by every entry?
A. Sometimes when I am typing, I just -- the
lines blur together for me, and I want to make sure
that I haven't placed the wrong number with the wrong
designation. And so sometimes I will simply give it
a check mark.
Q. Is it fair to say there is some inconsistency
in terms of when you provide a check mark and when
you don't?
A. Yes.
Q. Or a tick mark?
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A. Yes.
Q. Let me ask you to turn now to Page 259 in your
notes. And you may find a corresponding page in your
report at 213.
A. Okay.
Q. Do those pages -- that page from the lab
notebook and the report match up, Dr. Makowski?
A. They seem to.
Q. There is an entry in your lab notebook here
for FM. Is that the fish meal, and consistent with
what you testified to earlier?
A. It is.
Q. And you identified fish meal at 10 percent; is
that correct?
A. That's correct.
Q. Now, if you turn to the corresponding page in
your report, there is no fish meal listed there.
A. Uh-huh.
Q. Is that correct?
A. That's correct.
Q. Why is that?
A. I went back with this sample and initially
thought there was fish meal in there. I thought it
had an odor to it of fish meal. And so, in order to
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confirm its presence or absence, I took a sample of
the bone particles that were in the heavy fraction,
examined those under the compound microscope to look
for the specific characteristics that are fish bone
as opposed to poultry bone. I didn't find any, so we
eliminated -- I eliminated that from the report.
Q. And then what you were previously calling fish
meal, what did you then call that?
A. I didn't call it anything.
Q. Well, you were seeing something under the
microscope, right, that led you to think it was fish
meal?
A. It was based initially on odor. Again, a
microscopist will look not only at characteristics
that are visible, but also, if something has a
particular odor, you may suspect that something is
there.
Q. Now, you provide a number of entries like this
where you say "CM/TM."
A. Uh-huh.
Q. Why do you provide that type of descriptor for
some but not all entries?
A. It could be -- because I can't distinguish
between something like chicken meal, turkey meal,
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duck, any other poultry-type product. And so
depending on the day, I may have written "poultry
meal." Other days, I might write this -- you know,
it could be "chicken meal/turkey meal."
I'm not sure why on this particular one I
actually indicated it that way in the report. I
probably should have just indicated "chicken meal."
Because, again, I have no way to distinguish between
chicken meal versus turkey meal.
Q. So, in your report, Dr. Makowski, I will
represent to you there are places where you say
"CM/TM" or in your report "chicken meal/" -"chicken/turkey meal."
A. Uh-huh. Uh-huh.
Q. In other places, you say "chicken meal."
A. Uh-huh.
Q. Is it your testimony that those are all
ultimately the same thing?
A. It is all what we would refer to as poultry
meal.
Q. And what you call it just varies from day to
day?
A. It's more specific if we can identify it as
chicken meal versus turkey meal versus whatever. But
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chicken, turkey, duck, whatever, they are all
poultry. So "poultry" would be a general term for
this ingredient.
Q. To back up, though, can you identify something
as chicken meal versus turkey meal?
A. No. Not -- not with microscopy.
Q. So is there any basis for in some instances
saying "chicken/turkey meal" and in other instances
just saying "chicken meal"?
A. Some of the bone looked a little darker in
some cases, and some of the meal had a little bit
darker appearance to it. That's about the only
reason I would even indicate something like that.
Q. Well, Dr. Makowski, you seem to be saying two
different things -A. Okay.
Q. -- so I'd like to try and clarify it.
MR. ZARLENGA: I'm going to object to that
kind of comment. That is not appropriate, Counsel.
BY MR. MANGI:
Q. Are you saying on the one hand, yes, I can
differentiate between chicken meal and turkey meal,
or are you saying on the other hand, I cannot
differentiate between chicken meal and turkey meal?
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A. I will agree with the statement that we cannot
by microscopy distinguish between the two. However,
what I was noting in some of these samples was, some
of the meal had different colorations to them.
Typically, we would expect a chicken meal or a
poultry meal, or whatever we are talking about, to be
consistent in color and texture, because we would
assume it was processed at the same time, that it was
incorporated from a single batch. And if we see -if I see something that has a little bit of variation
in color or whatever, it might suggest that perhaps
something else is there, but I -- I would not be able
to distinguish between them.
The way to overcome something like that is to
put down something like "chicken/turkey meal." I
could have put a question mark, but then that would
suggest that maybe I wasn't sure if it was either
one. So by indicating "chicken/turkey," it means
there's a possibility that both could be there.
Q. So, earlier in your testimony when you said it
just depends on the day, what did you mean by that?
A. On the day that I'm looking at it and how I'm
designating it, based on, again, color comparisons or
consistency or what have you.
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Q. Well, then it depends on what you are seeing.
It doesn't depend on the day, does it?
A. Well, yeah. I'm looking at these on different
days, so that's what I was suggesting, is that on a
particular day when I'm looking at a particular
sample, I might see one thing as opposed to a
different sample having a different color pattern.
Q. So, to be clear, then, Dr. Makowski, is it
your sworn testimony that the reason why you say
"chicken/turkey meal" in some instances versus just
"chicken meal" in others is based upon your
observations of color patterns leading you to make
certain deductions as opposed to just using an
inconsistent designation?
MR. ZARLENGA: I'm just going to object to
the form of the question as an improper summation of
the testimony already given, and asked and answered.
MR. MANGI: I request that you not make
speaking objections.
BY MR. MANGI:
Q. Go ahead, sir.
A. Can you repeat the question?
Q. Sure.
Is it your testimony, as you sit here today,
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that your use in the report of "chicken/turkey meal"
in some instances versus just "chicken meal" in
others is based on your observations of color,
leading you to make certain deductions, as opposed to
just an inconsistent practice of designation?
THE WITNESS: Yes.
BY MR. MANGI:
Q. Now, Dr. Makowski, you are aware, aren't you,
that even beyond what we have talked about, there are
many differences, whether you call them
inconsistencies or something else -A. Uh-huh.
Q. -- between the observations reflected in your
notebook -A. Uh-huh.
Q. -- and what is stated in your report?
A. Uh-huh.
BY MR. MANGI:
A. Yes. You have made me aware of that.
Q. Okay. And are you aware that there are others
beyond just the ones that we have spoken about?
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MR. ZARLENGA: Object to the vagueness and
the lack of foundation.
THE WITNESS: There may be, but we haven't
pointed them out today.
BY MR. MANGI:
Q. And that's my question. Are you aware of the
existence of others beyond the ones we have looked
at?
A. Right now, no.
Q. To the extent there are differences in either
a product identified -A. Uh-huh.
Q. -- or the amount and proportion of a product
identified -A. Uh-huh.
Q. -- will your answer in every instance be the
same as what we've talked about, in other words, that
your report reflects your more refined conclusion
versus your lab notebook?
A. Yes.
MR. ZARLENGA: Object to the vague -- I'm
going to object to the question as overbroad and
calling for speculation.
BY MR. MANGI:
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Q. Is there a phrase you -- or a short form you
use in your notes D/G?
A. Yes.
Q. What does that stand for?
A. Dirt and grit.
Q. In some instances, there are question marks.
You know, "fish/chicken," question mark. Is it your
practice to use question marks sometimes in your
notes?
A. Yeah. Because I wasn't sure at the time of
the initial observation if it was chicken meal and/or
fish meal.
Q. Let me ask you to turn to Page 286 on your
notes. What's Page 286?
A. These are just notes that I wrote after being
aware of everything that was going on. This was
after getting some claim -- or getting some
conversation from counsel as to what this final
project was all about.
Q. When did you get the information reflected at
286?
A. Oh. Sometime after turning in the report and
the final -- what are we calling that -- Exhibit 1.
Q. Okay. At what point in the process did you
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become aware of the identity of the samples you were
testing?
A. Well, I was the one that had the samples
initially in their bags. So I knew what the products
were from the beginning.
Q. So why go through the process of giving them
these name designations if you -- these number
designations, if you know what they are?
A. So that it would be blind.
Q. Who wrote the -- who gave the products the
labels?
A. I did.
Q. So, if you put something in a bag and labeled
it 2014-1, you knew what bag you were taking it from,
correct?
A. I would know what the bag was, that it was a
bag, and the bag had the same number on it. But to
be honest with you, with 50-plus samples altogether,
there is no way I could remember even whether it was
a dog food or a cat food, never mind what the
ingredients were.
Q. Did the bags you got in this instance relating
to this round of sampling, were these also the black
plastic bags you described earlier, or the Whirl bags
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you described earlier?
A. You mean when I sub-sampled from the large
bags?
Q. No. Let's just back up.
The bags that you got from Purina with regard
to this round of testing, what kind of bags were
they?
A. No. These were consumer bags.
Q. Okay. And you took stuff from those bags and
then put it in other bags that you marked with these
numbered labels, correct?
A. That's correct.
Q. So if you put something in a bag and labeled
it, you know, 1-2014, for example, you saw that,
okay, the bag you are taking it from, you knew what
product it was if it was listed on the bag, Blue
Buffalo Wilderness, et cetera?
that question as having been asked and answered.
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BY MR. MANGI:
Q. Go ahead. Is that correct?
A. Did I know it was Blue Buffalo versus Purina?
That's about all I would have been able to remember.
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And even there, not even -- what I attempted to do
was to sample all of the -- one type of product
together and the other -- the others after that. So
I couldn't even tell you, for instance, where one
Purina sample ended and a Blue Buffalo began, or
vice versa.
Q. Do you consider it a scientifically sound
blinding methodology for the person that is doing the
testing to know what product bag they are taking the
product from?
A. In this case, since I didn't remember, yes, it
was blind.
Q. It was blind because, while you knew what it
was, you subsequently forgot?
MR. ZARLENGA: Object to the form of the
question as argumentative.
THE WITNESS: It was -- it was blind
because at the time I began the analysis, I had no
recollection of what any one particular bag
represented.
BY MR. MANGI:
Q. Would you concede that reasonable scientists
might disagree with whether or not what you did there
constitutes an appropriate blinding methodology?
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MR. ZARLENGA: I'll object to that
question as calling for speculation.
THE WITNESS: And I'm not sure what a
reasonable scientist is.
BY MR. MANGI:
Q. Do you think it's a topic on which reasonable
minds can differ?
A. Yes.
MR. MANGI: Okay. I understand we need to
change the tape, so we can take a break.
and this concludes DVD No. 2.
and we are back on camera starting DVD No. 3.
BY MR. MANGI:
Q. Dr. Makowski, does the Department of Biology
at Messiah College receive federal grant money?
A. I don't think so.
Q. Now, I would like to talk a little bit more
about the reports that we were talking about that are
part of your final report, and the lab notebook that
is Exhibit 12.
Can you help me understand the timeline
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between when you would do the analysis reflected in
your notes here versus when you would prepare the
written charts dated April 21st reflected as part of
your report?
A. I'm sorry. Which charts would they be?
Q. I'm trying to understand the timeline between
when you are looking at something under the
microscope and preparing your handwritten notes
versus when you prepared these typed-up tables that
are part of your July report.
A. Uh-huh. Again, what I would do would be to do
an initial evaluation of the sample and make notes in
the laboratory notebook. I might do a series of
those, let's say ten. Okay. And then after those
ten have been completed, I've looked at them, now I'm
getting ready to type. Okay.
So, I'm now going to be looking at the
product, and being at the computer and the notebook,
and going between those to subsequently
increase -- or, you know, change or alter, if you
will, or -- what's the word I want? Tighten? I
don't know. I'm blanking on the word. I'm sorry.
Make it more specific, perhaps, as I went back and
forth.
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Q. How long would it take you to do ten of these?
I'm referring to your lab notebook pages.
A. Probably about -- probably about a week.
Q. So, for example, you would do ten of these
over a week, and then you would prepare the
corresponding tables; is that correct?
A. Uh-huh. Uh-huh. Yes. Yes.
Q. And when you prepared the corresponding
tables, would that always be the following week?
A. It could be.
Q. Could there be a break between when you do the
handwritten notes and when you do the table?
A. In some cases, it could be -- maybe I did ten
and then I did another ten, and then I went back and
did some of this reporting then.
Q. And how long does it take you to prepare ten
of these tables in the report?
A. It's -- it might depend. It varies, depending
upon what I may or may not see as I continue to look
at the sample, in making up the actual report.
Q. Now, when you did this analysis, Dr. Makowski,
did you have in mind that there was some importance
attached to the difference between poultry meal and
poultry by-product meal for purposes of this
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analysis?
A. No. I had no idea whatsoever.
Q. Are there other instances that you can
identify where you changed your conclusions, let's
say, for a type of vegetable from one to another
between your lab notes and your final tables?
A. There may be, but I would have to look at the
notebook and the report as well to see if it did
occur.
Q. Do you know of any off the top of your head?
A. Not off the top of my head.
Q. Have you ever seen Blue Buffalo advertising?
A. On television? Yes.
Q. Or otherwise.
A. Just on television.
Q. Had you seen Blue Buffalo advertising before
you did this analysis?
A. Actually, I hadn't.
Q. So, did you have any awareness that Blue
Buffalo advertises a claim to no poultry by-product
meal -A. No, I did not.
Q. -- prior to -- I'm sorry. Let me finish the
question.
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-- prior to the time that you did this
analysis?
A. No, I did not.
Q. Now, let's talk now about the materials that
you received. You say in your report that you got
samples in two sets, one on February 27th, one on
March 5; is that correct?
A. That's correct.
Q. And the first one you say came by personal
delivery from Christopher Purschke -- I may be
mispronouncing that but it's P-u-r-s-c-h-k-e -- at
Purina.
A. That's correct.
Q. And who is that gentleman?
A. I had never met him before. He was simply a
person dropping the samples off at the lab.
Q. And you say you got a second set from Mark
Rogers. Who is that?
A. I'm not sure who Mark Rogers is either. I
don't know any of these individuals.
Q. How did you get the second delivery,
physically?
A. There was a FedEx delivery.
Q. Is Mark Rogers the sender, or is he with
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FedEx?
A. If -- I'm not sure. I would think he was
probably the sender, but I -- I'm not sure.
Q. What about Christopher Purschke?
A. He is the one that actually delivered them to
my laboratory.
Q. But is he someone who works for Purina?
A. I would assume so.
Q. Now, am I correct in understanding,
Dr. Makowski, that you did not purchase any of these
samples yourself?
A. That is correct.
Q. You have no information about how these
particular samples or these particular batches or
lots were selected for testing?
A. That is correct.
Q. All of the selection work was done by Purina?
A. That is correct.
Q. When you got the samples and then you started
to prepare them for analysis, you took 200 grams from
the branded packages and put them into other bags for
use in your analysis; is that correct?
A. That's correct. Approximately 200 grams.
Q. How did you decide to use 200 grams?
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A. I'm not really sure if it is exactly
200 grams. What I did was, I approached this as a
consumer might, in that when I opened up a bag, I
would -- I took out approximately two cups of sample,
what I might be feeding, you know, a dog or a cat or
whomever, and that was my sample from the bag.
Now, the bag was jostled a bit and mixed, so
it wasn't as if it had been sitting. So, it was kind
of mixed by rotating it a little bit; opened it up,
and now took out basically two cups.
Q. And so you chose two cups based on how much
you thought a typical dog or cat would eat in a meal?
A. Yes.
Q. And is there a scientific source or
methodology that you can point to saying that the
amount you test should be based on how much an animal
would consume in a given meal?
A. No.
Q. And, indeed, we can agree, can't we, sir, that
a Great Dane will consume a different amount than a
Chow would in a given meal?
A. I don't know. I have seen Chows that are
pretty hungry.
Q. Were you using a Great Dane scale or a Chow
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scale in deciding how much you would use?
A. I was using an average of two cups.
Q. And what was your basis for deciding that's
the average amount an average dog will have in a
given meal?
question. Asked and answered. Argumentative.
THE WITNESS: It seemed like a good
amount. It seemed to me to be a very representative
amount of the entire bag.
BY MR. MANGI:
Q. What is the -- and by the way, you say you
jostled the bag. What do you mean by that?
A. Again, occasionally with a bag like that,
you'll get settling, which could cause some
separation in some cases. So, it would be good to
take the bag and simply invert it, turn it a little
bit, so what it's doing is mixing the kibbles and the
bits, if it has kibbles and bits, within that bag.
Q. Okay. And can you demonstrate for the video
how you jostled the bags?
A. You'd pick it up, okay, and perhaps do it this
way a little bit, a little bit this way, maybe roll
it over a little bit, maybe roll it back, and then
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place it back down again.
Q. And how long did you do that for, for each
bag?
A. Just a minute.
Q. A minute is quite a long time to jostle,
60 seconds. Are you using that precisely or -A. All right. Thirty seconds may be more
accurate.
Q. Now, what, Dr. Makowski, does the AOAC say
about how you should remove materials and how much
you should use for testing?
A. I'm not sure.
Q. By the way, how did you remove materials? Did
you actually use a cup?
A. I did. I used a cup, measuring cup.
Q. What type of measuring cup was it?
A. A plastic one-cup measuring cup.
Q. The type of thing you would use like in a
kitchen or buy -A. Sure, yes.
Q. -- at Bed Bath & Beyond, something like that?
A. Yes.
Q. Okay. Let me show you what we're marking as
Exhibit 13 to your deposition.
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identification.)
BY MR. MANGI:
Q. Dr. Makowski, you'll see this is an AOAC
Official Method 965.16 entitled "Sampling of Animal
Feed." Do you see that, sir?
A. I do.
Q. And you see the AOC -- AOAC says that you
should use a slotted single or double tube, or
slotted tube and rod, with pointed ends, and take a
500-gram minimum.
A. I do.
Q. And are you aware that other entities
similarly recommend using these tube devices to take
samples from bags?
A. I'm not aware of that.
Q. Are you aware, for example, that the AAFCO
Feed Inspector Manual makes the same recommendation?
A. No, I'm not.
Q. Do you understand that the reason these
standard-setting entities recommend that is so that
you can receive a representative sample from a bag,
accounting for settling, et cetera, and that they
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recommend that as opposed to jostling?
A. I'm not sure they could speak to jostling, but
I understand what their procedure is attempting to
do.
Q. And can we agree that you did not follow the
AOAC procedures in terms of either the amount of
product removed for testing or the way in which you
removed it for testing?
A. I did not. I followed the procedures outlined
more so in our AAFM manual.
Q. And by "AAFM manual," you are referring to
your own book?
A. Yes.
Q. And other than your own book, you can't cite
any scientific source validating the samples
methodology that you utilized; is that correct?
A. That is correct.
Q. And, indeed, the AOAC is headed by your own
client, Nestle in Switzerland, is that correct, from
the Nestle Research Center?
form of the question as lacking foundation, calling
for speculation.
BY MR. MANGI:
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Q. Go ahead.
A. Only by your report do I know that.
Q. Now, what procedure did you use to ensure that
the kibble did not include surface particles from the
dark bits in the materials you were removing for
testing?
A. They were easily separated, the dark bits from
the kibble. And then visual inspection did not
reveal any dark particles that were attached to the
kibble.
Q. Did you visually inspect every pellet of
kibble to ensure that there were no surface particles
from the dark bits?
A. I visually inspected those that we took our
final sample from, yes.
Q. And are you able to state with certainty that
you looked at every pellet of kibble such that there
was absolutely no adhesion of any surface particles
from dark bits?
A. I didn't go into that detail.
Q. You then used a technique you described as
quartering; is that correct?
A. That is correct.
Q. What is quartering?
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A. Quartering would be taking the two-cup sample
that we've removed from the bag, placing it onto a
piece of parchment, dividing it into four equal
sections, and then removing opposite corners. Then
the two remaining samples can be spread again
randomly, divided into quarters, opposite corners
removed. You continue to do that until you have a
sample that is a workable sample.
Q. What is the point of that?
A. Randomization.
Q. You report -- in your report, you describe
quartering as, quote, an accepted procedure for
ensuring a statistically valid sample; is that
correct?
A. Correct.
Q. What do you mean by "statistically valid"?
A. Again, our methodologies in the manual
recommend quartering in order to achieve a
statistically valid sample, in other words, one that
is random and not biased.
Q. And other than your own manual, Dr. Makowski,
can you identify any scientific sources or standards
that state quartering is an appropriate procedure?
A. I'm not aware of anything specifically.
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Q. Do you know what the AOAC says about
quartering?
A. I do not.
Q. Let me show you the next document, which we
are marking as Exhibit 14 to your deposition. Sorry.
Actually, it is the same document.
Let me ask you to pull back up Exhibit 13, and
have a look at the right-hand column, and you will
see that four lines down from the top, there is a
parenthetical starting with "Note." Do you see that,
sir?
A. Yes.
Q. And it says, "Note: Mixing thoroughly on
clean oil [sic] or paper and quartering is not
recommended."
A. I do.
Q. So we can agree, can't we, sir, that the AOAC
does not recommend quartering as an appropriate
procedure?
A. They apparently do not.
Q. Okay. Do you know, sir, what the
Environmental Protection Agency says about
quartering?
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A. I do not.
Q. Let me show you Exhibit 14 to your deposition.
identification.)
BY MR. MANGI:
Q. Do you see, sir, that this document is a
guidance document for obtaining representative
laboratory analytical samples from particulate
laboratory samples? There is the stamp of the United
States Environmental Protection Agency on the top.
A. I do.
Q. Okay. Let me ask you to turn to Page 72 of
that document. And you'll see this is Table 8,
"Authors' relative rankings (from best to worst) for
subsampling methods." Do you see that, sir?
A. I do.
Q. And it says, "NR means not recommended." Do
you see that at the top in the header?
A. Yes, I do.
Q. And right towards the bottom of that table,
you see two entries for "rolling and quartering" and
"coning and quartering." Do you see that?
A. I do.
Q. Do you understand what those are?
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A. I think I know what rolling and quartering is.
I do not know what coning and quartering is.
Q. Is rolling and quartering what you did?
A. Yes.
Q. And you see, what does the NPA -- I'm sorry.
What does the EPA, sir, say in the comments section
relating to the rolling and quartering that you did?
A. "Highly variable; NR."
Q. And you understand "NR" to mean not
recommended?
A. I do.
Q. And their reason is because it results in
variability?
A. Yes.
Q. And so, we can agree, can't we, sir, that the
protocol you used is one that is not recommended by
both the AOAC and the EPA?
A. I would agree that neither of those agencies
recommend that.
Q. And you can't point to any sources other than
your own manual that do, correct?
A. That is correct.
Q. Now, your next step was grinding the samples
in a flour mill; is that correct?
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A. That is correct.
Q. And why did you do that?
A. In order to break the sample into smaller
particles so that they could be floated and examined
under the microscope.
Q. How much of each sample did you grind?
A. It varied. It's probably initially somewhere
in the neighborhood of 50 grams.
Q. And grinding is a process that can impact the
physical characteristics of particles; isn't that
right?
A. No, not in this case.
Q. Oh. Are there cases in which it can?
A. Yes, depending upon the type of grinder you
are using. So, for instance, in a hammermill where
grinding is done, you actually cut, and that will
destroy cellular structure.
Q. Now, you didn't take any pictures of the
product before you ground it, did you?
A. No.
Q. And you didn't take any pictures of the
product after you ground it, did you?
A. No.
Q. Did you take any steps to ensure that there
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was no damage to cellular components from the
grinding?
A. I examined them under the microscope and did
not find any cellular or morphological damage to the
individual ingredients.
Q. Did you inspect every individual sample with a
compound microscope to confirm that both before and
after grinding?
A. Those particles that required inspection with
the compound microscope were observed, and no
deformities were found.
Q. So the answer to my question -A. It was not necessary to identify under the
compound microscope every particle that was in a
sample.
Q. To see cellular components, you need a
A. That is correct.
Q. And let me ask you to focus on my question.
Did you inspect every sample using a compound
microscope both before and after grinding to validate
the absence of any cellular damage?
A. No.
Q. Now, after grinding, you selected two-gram
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sub-samples of the ground material; is that correct?
A. That's correct.
Q. Now, two grams is roughly about half a
teaspoon; is that right?
A. It depends on the mass. It depends on the
weight.
Q. For this -A. It would be more to like a tablespoon or so,
perhaps a little more than that.
Q. So you say roughly a tablespoon worth of
ground material is what you then used for -- after
grinding?
A. Uh-huh.
Q. And you have to answer verbally.
A. Yes.
Q. You then used that for flotation, correct?
A. Correct.
Q. Now, is two grams a robust and sufficient
amount to utilize for flotation in accordance with
dependable laboratory practices?
A. Those who follow AAFM guidelines say it is.
Q. And those are your own -- by that, you are
referring to your own book?
A. Yes.
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Q. Can you refer to any scientific sources that
say that is an appropriate methodology, other than
your own book?
A. No. I'm not aware of any other one that
actually examines grain products in animal feeds.
Q. Okay. Let me ask you to turn to what I am
handing you as Exhibit 15.
A. Okay.
identification.)
BY MR. MANGI:
Q. Exhibit 15, sir, is a book entitled
"Aquaculture Feed Microscopy Manual" by -- published
by the American Soybean Association. Do you see
that?
A. I do.
Q. And you are familiar with this? It's from
your collection?
A. Yes.
Q. And this is a book written and edited by
Dr. Bates and others, correct?
A. Correct.
Q. And Dr. Bates is the same person we talked
about earlier who you know and view as a scientist
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you respect?
A. It is.
Q. Okay. Let me ask you to turn to Page 1018.
And you will see -- I'm sorry. Let me know
when you're there.
A. Okay.
Q. You'll see, "The sample" -- at the top left,
he says, "The sample size used for quantitative
estimations varies according to the nature of the
sample."
A. I'm sorry, 1008?
Q. 1018, the Bates number. PUR 1018. It's
Page 49 of the document.
A. Okay.
Q. Top left: "The sample size used for
quantitative estimations varies according to the
nature of the sample. Ten grams is ample for most
feeds in the meal, pellet or crumble form."
Do you see that?
A. I do.
Q. And he goes on to say for other types of feed,
you should use 50 grams or preferably a hundred
grams. Do you see that?
A. I do.
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Q. Can we agree, sir, that the sample size you
decided to use for flotation is one-fifth of what
Dr. Bates lists here in his manual?
A. It is one-fifth of what Dr. Bates recommends
for aquaculture products, yes.
Q. And he is referring to products in the meal,
pellet or crumble form, correct?
A. Those that contain aquaculture ingredients,
yes.
Q. And it's your view that a smaller sample is
adequate for those that are not in the aquaculture
context?
A. Yes, it is.
Q. And why is there a difference between
aquaculture versus non-aquaculture for that purpose?
A. It's more difficult to identify some of the
sub-particles within aquaculture products. These are
very, very difficult to identify, particularly after
they have been processed.
There is also a higher incidence of
adulteration or contamination in aquaculture
products, and as a result, sometimes you do need to
look at a larger sample in order to see if there is
some of that adulteration or contamination.
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Q. What is your recommendation in your own manual
for the amount of sample that is necessary to
properly analyze product in pellet form?
A. Different people use different amounts. Some
use two grams, some up to ten grams as well.
Q. The recommendation in the book is two to
ten grams, correct?
A. I think so.
Q. And you chose to use the amount at the
absolute bottom of that range, correct?
A. I did.
Q. Now, did you conduct any analysis to determine
that that sample size was sufficient to mitigate
against error?
A. I didn't conduct anything to indicate that it
would or would not have error. That is a -- that is
the standard amount that we typically use, employ,
when working with dry feed ingredients such as this.
Q. And when you say "we," you mean you?
A. Those in the industry, those in our
association.
Q. Well, who are you speaking for?
A. I can't tell you specifically, but others
beyond myself use two grams. Often ten grams is used
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if we're not going to do a flotation separation.
There we may use actually a different way of
separating materials, based on size. And they may
actually pass those through a series of sieves and
then analyze the contents of each particle size.
Q. Well, can you identify any individuals who, if
I were to subpoena, would testify that they routinely
use a two-gram sample -A. Sure.
Q. -- for pelleted food?
A. Ted Windsor. I'm sorry.
THE REPORTER: Two-gram sample for?
MR. MANGI: Pelleted.
THE REPORTER: Pelleted?
MR. MANGI: Pelleted. Pellet, e-d.
P-e-l-l -THE REPORTER: Okay.
THE WITNESS: Ted Windsor would be one.
BY MR. MANGI:
Q. Who else?
A. I'm not sure. I'm not positive. But I think
Glenn Kobata in California.
Q. Who else?
A. I couldn't tell you offhand.
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Q. By the way, how old is Mr. Windsor now?
A. I have no idea.
Q. Is he still working?
A. No. I think he is retired now.
Q. And where does he live?
A. I'm sorry?
Q. Where does he live?
A. I think he lives in Mechanicsburg.
Q. Now, you then used your two-gram sub-samples,
and you used various techniques to separate out
elements through flotation, correct?
A. Yes.
Q. And then you observed the results under a
microscope?
A. Correct.
Q. And all of your conclusions and
quantifications that follow are based ultimately on
that two-gram, approximately a tablespoon worth of a
sub-sample, correct?
A. That is correct.
Q. So if you say a particular -- by the way -withdraw that.
How big were the bags that you got?
A. They varied in size. Are you -- I'm sorry.
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Which bags are we referring to?
Q. The bags of Blue Buffalo product that you
received and from which you took product to do this
testing.
A. I think they varied anywhere from three pounds
to ten pounds.
Q. So for each bag, whether it was three pounds
or ten pounds, if you say 22 percent of the kibble
includes poultry by-product meal, that is all based
on your analysis of a tablespoon worth of ground
product from that bag, correct?
A. It's correct, but I would like to add to that.
According to anyone who manufactures dog food or
kibbles, one kibble theoretically is representative
of the whole. And what we've done is to grind 30 or
40 kibbles, which seems to me that, in reality, one
kibble is a representative sample of the whole; 30 or
40 kibbles would, in essence, be doing 30 or 40
samples of the whole.
Q. And in fact, out of the 20 samples of kibble
that you tested, 17 out of them, you found no poultry
by-product meal in, correct?
A. I would have to look at the report. But if
you say so, I agree.
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Q. And of the three that you found poultry
by-product meal in, two of those three, you have a
different statement in your lab notebook, correct?
A. I'm not sure what you mean by "a different
statement."
Q. I mean "chicken meal" in the lab notebook and
"by-product meal" in the report. That's what I
mean by that.
A. Yes. We talked about that before, that it was
a subsequent change after identifying specific
markers.
Q. Now, when you did flotation, you used chemical
solvents, correct?
A. I did.
Q. Carbon tetrachloride and chloroform?
A. Correct.
Q. And the goal is to separate out what floats
from what sinks, correct?
A. Correct.
Q. And you do a few rounds of that, correct?
A. Correct.
Q. And you then array those materials from
heaviest to lightest, and you look at them under a
microscope to identify them, correct?
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A. Correct.
Q. Now, these are chemical solvents we are
talking about?
A. They are.
Q. And they are -- they're strong and potent
solvents, aren't they, sir?
A. I'm not sure what you mean by "strong" or
"potent."
Q. Well, chloroform, for example, is what you use
in old movies to knock someone unconscious?
A. True.
Q. And you have to take certain precautions in -when using these materials?
A. Yes.
Q. You have to use a fume hood and things like
that, for example?
A. Yes.
Q. Do you in fact utilize a fume hood at Windsor
Laboratories?
A. I do.
Q. How did you account, sir, for how your
flotation protocol and use of these chemicals may
have impacted the visual characteristics of the
materials?
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A. The reason carbon tetrachloride, chloroform,
and petroleum ether are used is because they don't
impact the morphology of these grain products. We
don't find any, again, morphological changes to
either the gross morphology or the cellular structure
using these solvents. In fact, that's why we
continue to use those solvents today.
Q. And what scientific sources can you cite, sir,
for the proposition you just stated?
A. You need to be more specific.
Q. Yes. What scientific authorities, methods,
standards, books can you cite for the proposition
that the use of these chemicals for flotation
categorically cannot have any impact on the visual
characteristics of a particle?
A. I can only offer 28 years of experience, that
in doing this, I haven't seen any changes in
morphology or cellular structure using those
solvents.
Q. Well, did you take pictures before and after
your flotation protocol so that others could validate
your view?
A. I've looked at reference samples prior to, and
I've looked at products after they've been floated,
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as well as the -- however many other people have
performed these types of flotations. And it's never,
to my knowledge, been noted that any morphological
changes have occurred.
Q. With regard to your particular reference
standards -- and you have a library of reference
standards, correct?
A. I do.
Q. Have you subjected those reference standards
to examination before and after treatment with the
solvents to see whether they look different under the
microscope?
A. No.
Q. Do you think that you should do that for your
reference library in order to be able to be confident
in your conclusions?
A. In essence, every time I look at a sample
after it's undergone chemical flotation separation,
I'm looking at a reference sample.
Q. Are you aware, sir, that the AOAC Official
Methods 964.07 advise a microscopist to become
thoroughly familiar with structural appearance of
standards before and after treatment with organic
solvents?
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A. Uh-huh.
Q. Are you aware of that?
A. I am now.
Q. But you did not, in fact, do that with regard
to your reference standard library specifically; is
that correct?
A. That's correct.
Q. Now, can these chemicals dissolve organic
matter?
A. The only thing they primarily dissolve are
salt, sugar and fat, fat being organic.
Q. And can they also leave behind residue?
A. No, not that's observable under the stereo or
Q. So it's your view as a scientist,
categorically, it is impossible for these chemicals
we are talking about to leave any residue?
A. I will state that I have never seen any
residue after 28 years of doing this.
Q. And you do not account for the possibility of
any residue in the conclusions that you form because
you don't think it exists, correct?
A. If I didn't see residue, I can't report the
possibility of it being there, because I'm not able
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to see it. And, therefore, if I'm not able to see
it, I will not report it. I will only report those
things that I'm able to see.
Q. Are you aware that the AOAC recommends that
your reference standards include a chemical that I
will -- I will just read out what it is: ca. 1 mL CS2.
Do you know what that is?
A. I have no idea.
Q. They say that "to control insects, add ca.
1 mL CS2."
THE REPORTER: Sorry. To control insects,
add -MR. MANGI: Add ca. 1 mL CS2.
BY MR. MANGI:
Q. Do you know what that is?
A. I do not.
Q. Do you use any materials added to your
reference standards to control insects?
A. No. Because I don't have an insect
infestation problem.
Q. Isn't the whole point to guard against an
insect infestation problem?
A. I think the whole point is to prevent it from
happening if there's a history of the possibility of
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it happening.
Q. You don't think it is appropriate to take a -take a precaution against insect contamination when
working with biological samples?
A. Depending upon how they are stored, it is not
always necessary.
Q. Let me ask you to open up your manual and go
to the page PUR 15.
A. Okay.
Q. I would like you to draw your attention to the
right column. About in the middle of that paragraph,
you see the section starting with, "After all." Do
you see that, sir?
A. PUR 15?
Q. PUR 15.
A. Right-hand column?
Q. Right towards the middle of that paragraph.
A. Okay. "After all." Okay.
Q. And it says, "After all ingredients are
listed, estimate them one at a time, studying all
fractions and the whole sample, remembering to take
into account each fraction weight. For example, if a
particular fraction comprises 28 percent of the total
sample, and the microscopist estimates that
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15 percent of that fraction is made up of corn, then
the amount of corn present in that fraction is 4.2
percent," which is 28 percent times 15 percent.
A. I do.
Q. And it goes on to say that to do a
quantitative estimate for the entire sample, you add
up what you have calculated with regard to each
fraction, correct?
A. That's correct.
Q. Now, did you do that in this case?
A. In some cases, yes. In most cases, yes.
Q. Why did you do it in some cases but not
others?
A. In some cases, we could simply -- I could
simply take a look at the entire sample, and if I'm
looking for the amount of corn that's present, look
at the fractions and say, okay, overall there appears
to be approximately this much corn.
Q. And how do you do that without carrying out
the mathematical step described in your manual?
A. One doesn't have to know the weights in order
to see something like that. I can look in this room
and say, without weighing any of you, there are
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approximately seven men and two women.
Q. Well, this sample is not talking about
weights, is it?
A. Well, it is. It is weight -Q. Sorry. To clarify, I'm referring to the
section in your manual -A. Yes.
Q. -- is not talking about weights. It is
talking about what you estimate for each fraction and
then adding them up.
A. That's correct. Uh-huh.
Q. Now, if -- did you follow this process of
making an assessment for each fraction?
A. Yes.
Q. And did you do that in all instances?
A. In the majority of the instances, yes.
Q. Now, are there reasons why you did it in some
cases but not others?
A. In some, it was easier to ascertain the
ingredients simply by looking at the whole, rather
than having to look at each individual fraction. But
each individual fraction was examined. It's just
that, without having to write down this number times
this number times this number, again, I simply did
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that in my head.
Q. To be clear, did you look at the sample as a
whole and estimate based on that one observation, or
are you saying that you estimated separately for each
fraction but did the math in your head?
A. Yes. I looked at the sample as a whole, but I
also looked at each individual fraction and did the
estimation. So after doing the estimation and
putting down a preliminary number, then we go back
after doing all of that and -- again, it has to total
a hundred percent or close to a hundred percent.
After going back and looking at what the
initial estimates were, maybe it didn't add up to a
hundred percent. Maybe it added up to 88 percent or
94 percent or 104 percent. Then we'd go back -- I
would go back and reexamine the sample fraction by
fraction or the whole and revise estimates that way,
and saying, okay, maybe it wasn't .5 corn, maybe it
was .2 corn.
But if you'll notice, in most of the samples
that were done, we actually have the -- the
individual fractions weighed and listed.
Q. Well, let's look at that.
A. Sure.
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Q. Can you show me in your lab notebook where you
have each individual sample added?
A. Okay. 259, PUR 259.
Q. Yeah.
A. It's in the left-hand column, close to the
center.
Q. Right.
A. 4.9, 26.9, 52.7.
Q. I'm sorry, I must be missing it. Why don't
you -- you're on Page PUR 259?
A. I'm on 259.
Q. Okay. And why don't you tell me again what
you are pointing to?
A. Do you see where it says number 2 and then
002-2014?
Q. I don't. Are we in the right column or the
left column?
A. The left column.
Q. Oh, yes. You are identifying the sample.
A. I am.
Q. I see that.
A. Now, to the right of that column -Q. Yeah.
A. Now, we're still in the left column.
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Q. Yeah.
A. Right there.
Q. Yeah, this.
A. Those are the fraction weights.
Q. Okay. Of what?
A. Of the fractions that we floated.
Q. Oh, okay. So, this is the total -- the weight
of each total fraction.
A. Yes.
Q. Okay.
A. So in this case, there were three fractions.
The heavy fraction was 4.9 percent of the total.
Q. Right.
A. Then 26.9. This was actually the recovery,
not the percentage. It was actually recovery in
grams. So, 4.9, 26.9, 52.7.
In this case, it was 84.5 percent recovery.
Okay. And based on that, we would estimate that
approximately 17 percent of what is no longer there
was fat that was dissolved and removed by the
solvent.
Q. Okay. Now, where in this notebook do you
calculate how much CM or chicken meal you saw in each
fraction?
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A. I don't put it in the actual notebook.
Q. So where is it?
A. What I would do, again, is look at what I
think is in each fraction. I have a calculator. And
so if I thought the first fraction, 26.9, had
10 percent, I would enter 2.69 percent. The next
fraction was 52.5, or 7 or whatever it is, and let's
say I thought it was 42 percent of that. 52.7 times
42 percent added to the total I had before, what is
my overall total, that's what's recorded.
Q. And you adjusted to try and get closer to a
hundred percent as needed?
A. If needed.
Q. So, Dr. Makowski, do I understand correctly
that for all of the conclusions stated in here, you
have not memorialized or recorded anywhere what
proportion of each ingredient you say you saw in any
individual fraction?
A. At least not in this one. I'm not sure if I
did it in others or not.
Q. Why don't you have a look and tell me.
A. No. Nope.
I will do that on occasion, if I have
something that is much more complex and that -- we
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have -- we have some samples that we call kitchen
sink samples, because they have got everything but
the kitchen sink in them. And if that case -- in
that case, what I've got to do is, I have to be a
little bit more -- It's difficult to remember
everything that's in there and -- or even to identify
it in every single fraction, so there we may actually
do a little bit more recording.
Q. But here, you didn't record anything?
A. It wasn't necessary.
Q. And how do you guard, Dr. Makowski, against
errors like typing a wrong number on the calculator,
if you keep no record of the math you are doing?
A. If I did an error on the calculator, I would
probably get a number that would not correspond to
what I thought was visually there.
Q. Are you aware that many of your tables where
you identify ingredients by percentage don't match up
to a hundred percent?
A. Are you talking about the total?
Q. Yes.
A. They're not -- they can't add up to be a
hundred percent, because there is always something in
the sample that we are unable to identify. Or if
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there is something that's holding a pellet together,
a pellet binder, that is usually a liquid. We're not
able to see that. So there may be liquid things that
are there.
There are also micro -- or trace minerals.
There would be vitamin precursors, vitamins, a
variety of things that are added that we are not able
to see, because, first of all, they are added in
small amounts, and secondly, in some cases, they may
be added as a liquid.
So we can never assume that we have identified
100 percent of every ingredient present.
Q. But you don't identify a category of other
unidentified materials, correct?
A. No.
Q. The carbon tetrachloride that you use, where
do you get it?
A. Aldrich Chemical through Fisher Scientific.
Q. Do you need a particular type of license to
purchase that kind of thing?
A. You have to fill out EPA regulations for that,
yes.
Q. And you do that?
A. I do. And it's very expensive.
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Q. Now, you state in your report that in some
instances, you used a compound microscope, correct?
A. I did.
Q. When did you use a compound microscope?
A. That was to confirm something that was seen
visually under the stereo microscope.
Q. With regard to -- how many of the samples that
you were testing did you use a compound microscope?
A. Anytime that we would see -- I saw a grain
product, that would be observed under the stereo -or the compound microscope to try to determine the
type of starch that was present.
Also, to distinguish between something like
fish meal or chicken meal, we would observe the bone
under the compound microscope to look at cellular
morphology of fish bone versus poultry bone.
Q. Are you describing now your general
methodology, or are you describing what you
specifically know you did in this case?
A. I'm describing both.
Q. Did you maintain any notes reflecting when you
looked at something versus -- under a compound
microscope versus not?
A. No.
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Q. As we sit here today, is it possible for us to
know what specifically you looked at under a compound
microscope?
A. No.
Q. Is it possible for another scientist
evaluating your work to assess what conclusions were
based on the use of a compound microscope versus not?
A. By performing the analysis or by looking at
the laboratory notebook?
Q. By looking at your work.
A. No.
Q. By the way, the samples that you used in this
round of analysis, where are these now?
A. They are in a storage facility in Sterilite
boxes.
Q. And where is that storage facility?
A. In Mechanicsburg.
Q. And what is the name of that facility?
A. Route 15 Storage, something like that.
Q. Is that a personal storage facility or a
college storage facility?
A. No. It's personal.
Q. What else is in that storage facility?
A. That's it. Nothing else.
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Q. And have you taken precautions in that storage
facility to guard against contamination, infestation,
and so on with regard to those samples?
A. Well, the storage facility guarantees those
types of things against any kind of water damage or
whatever. It's locked so that no one can access it.
Each individual bin is closed and sealed.
Q. Are you aware that storage facilities
typically have provisions regarding the storage of
materials of biological origin?
A. No.
Q. Did you check with this storage facility
whether they are equipped to appropriately preserve
materials that include -A. No.
Q. -- food substances?
A. No.
Q. Did you consult with anyone in deciding where
to store these materials?
A. No.
Q. Did you inform anyone where you had stored
these materials?
A. No.
Q. Now, your report talks about samples from
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examination boards being discarded after one month.
Do you recall that?
A. I do.
Q. Now, are those samples things that you looked
at under a compound microscope?
A. No. They are under the stereo microscope, and
also the compound microscope.
Q. Okay. So I'm trying to understand, what's the
material you threw away? Is it all the material that
you -- the two grams that you took out, floated, and
then inspected?
A. Yes.
Q. So all of that you have now thrown away?
A. I have.
Q. So if another scientist wanted to look at the
same sample you had looked at and say, okay, I see he
is looking at this, I think it's something else, it's
impossible to do that now.
A. They could easily take the original samples,
the bags, and sub-sample from those, and do their own
analysis.
Q. I understand. The bags, you are saying, are
stored in the storage facility. But I'm talking
about the specific sub-samples that your analysis is
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based on. Those you've thrown away, so no one else
can look at them, correct?
A. You mean the sub-samples that are in the
plastic bags or the sub-samples that are on the
examination boards?
Q. I'm talking about -- we talked about you took
a tablespoon worth of material, subjected it to
flotation, and then looked at it under the
microscope.
A. They are gone.
Q. Everything you looked at under the microscope
that grounds these conclusions you threw in the
trash.
A. Yes.
MR. MANGI: Okay. We can take lunch.
and we are going off camera.
(Following a luncheon recess:)
and we are back on camera.
BY MR. MANGI:
Q. Dr. Makowski, in the morning you described
that Nestle Purina recently paid for your purchase of
about ten to twelve thousand dollars worth of
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photographic-related equipment. Do you recall that,
generally?
A. I don't know if I said they specifically paid
for the photographic material. But they did pay, as
part of my overall fee and all, somewhere in the
neighborhood of $25,000 or more at this point.
Q. Well, let's be clear. You described that in
approximately September or October, you purchased
equipment that would enable you to take pictures -A. Yes.
Q. -- that you did not previously have in your
lab.
A. Yes.
Q. And that cost ten or twelve thousand dollars?
A. Yes.
Q. And that was paid by Nestle Purina, correct?
A. A portion of it was, yes.
Q. How much of it was paid by them?
A. $10,600.
Q. Why did Nestle Purina buy you that equipment?
question to the extent it calls for speculation.
THE WITNESS: I think they would like to
have better pictures taken, perhaps. But no one said
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why specifically, other than they thought it would be
something that would be good to have.
BY MR. MANGI:
Q. Well, did you ask for that equipment?
A. No.
Q. Did someone tell you they were sending it to
you?
A. An attorney.
THE WITNESS: That was a -MR. ZARLENGA: Okay. So, just exclude any
attorney communications from your answer, is the best
we can do on that.
THE WITNESS: Someone said that they felt
that it would be good to be able to take pictures;
therefore, they would provide the opportunity to
purchase that equipment.
BY MR. MANGI:
Q. And have you used that equipment?
A. I have used it, yes.
Q. For Nestle Purina?
A. No.
Q. Have you conducted any analyses relating to
this case beyond that reflected in this report we're
talking about?
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A. No.
Q. Now, at what point, Dr. Makowski, did you
become aware that the work you were doing for Nestle
Purina was involved in a litigation?
A. It was soon after my production of the product
in January, again, when I was contacted then by a
representative of Purina indicating they would like
to do more analysis. More samples.
Q. Can you tell me in what month you became aware
there was a litigation involved in -A. I suspect it would be February.
Q. We also spoke this morning about a change that
you made to your Facebook profile in or around June
to August of this year. Do you recall that,
generally?
A. I do.
Q. Did you discuss that change with anyone before
you made it?
A. No.
Q. Did you discuss that change with anyone after
you made it?
A. No.
Q. Is today the first time you have discussed
that change with anyone?
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A. It is.
Q. Now, I would like to hand you what I have
marked as Exhibit 16 to your deposition.
Identification.)
BY MR. MANGI:
Q. Do you recognize this document, sir?
A. I do.
Q. What is Exhibit 16?
A. These are pictures of the ingredients and
nutrient profiles for several of the Purina samples
that are part of Exhibit 1.
Q. Okay. And the numbers, sample number such and
such, these match up to the codes in your report; is
that correct?
A. I think so.
Q. Okay. So, for example, let me ask you to turn
to the photograph with the header "Sample 13."
A. 13?
Q. 13.
A. Okay.
Q. And let me ask you to also open your report to
the Bates number PUR 224.
A. Okay.
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Q. And you will see that there the top sample on
that page has the label "Kibble 13-2014"; do you see
that?
A. Yes.
Q. Okay. So that is your analysis that
corresponds to the document that has the designation
"Sample 13" on Exhibit 16, correct?
A. I believe so.
Q. Now, this is a Nestle Purina product that you
had analyzed, correct?
A. Yes.
Q. And on your report you see at the top of the
page there, it says, "Purina Pro Plan SELECT Adult
Green Free Formula (Dog)."
A. Correct.
Q. Now, let me ask you to have a look at
Exhibit 13. And you will see there, there are a list
of ingredients that go into this product.
A. I see them.
Q. And you understand that ingredients are listed
in order of amount?
A. I understand that theoretically they are
listed in ingredient -- or by -- in amounts.
Q. What do you mean, "theoretically"?
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A. I think theoretically they are supposed to
represent based on amounts. There are times when
non-Purina customers have provided me this type of
information and I have not found it to be accurate.
Q. Now, if you look at Purina's label, you will
see that the third ingredient listed is cassava root
flour, do you see that?
A. I do.
Q. And you will see that the fourth ingredient
listed is chicken meal. Do you see that?
A. I do.
Q. And if you look at your analysis of this
product, neither cassava root flour nor chicken meal
appear. Do you see that?
A. I do.
Q. Can you explain, Dr. Makowski, why you are not
identifying some of the lead products in this Nestle
Purina product?
A. Well, first of all, I cannot distinguish
between -- I'm sorry, is it -- cassava root flour,
that would be a starch. I'm not -- I've never seen
that before, at least I do not have a reference
sample of that. And I would -- again, in a sample
such as this, we wouldn't be able to do --
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distinguish that from another type of flour,
necessarily.
I'm thinking that perhaps under where it says
"canola meal" and then "chicken," that that actually
should have been "chicken meal." But that may have
been an oversight in typing.
Q. Well, you'll see that the ingredients also
list chicken.
A. Uh-huh, uh-huh. Yeah.
Q. So there is, in fact, both chicken and chicken
meal, correct?
A. Uh-huh, yes.
Q. Yet you did not identify chicken meal as an
ingredient.
A. Uh-huh, that's correct.
Q. And what leads you to say, Dr. Makowski, that
this is an oversight in typing as opposed to an
ingredient that's absent from the product?
A. Yeah, I'd actually have to go back and look -look at my lab notebook on this one.
Q. Okay.
A. If we find chicken meal, typically there'll be
bone. If we have just chicken, there may be less
bone or no bone. At least my understanding of what
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chicken might be.
And this is No. 13. Yeah. I have it listed
as chicken and chicken meal, a total of 36. I don't
know. Am I looking at the right one? I'm not
looking at the right one. I'm sorry.
At 26, chicken and chicken meal, yeah.
Again, more than likely, I should have gone
ahead and said chicken and chicken meal. For this
product, for some reason, I was not able to
distinguish between what might be just chicken and
what might be chicken meal.
Q. For other products you certainly were able -A. Yeah.
Q. -- to distinguish between those, weren't you,
Dr. Makowski?
A. I was, uh-huh.
Q. Let's have a look at Sample 27.
A. Okay.
Q. And let me ask you to also pull up the
corresponding sheet that appears at PUR 237.
A. Uh-huh.
Q. And is that the corresponding sheet?
A. Yes, it appears to be.
Q. And you will see that here, again, chicken
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meal is listed as the fourth ingredient in this
Purina product, but it does not appear on your table
of ingredients.
A. Yeah.
Q. Can you explain why that is the case?
A. Well, I see again on my lab notebook, it says
"CM," which would be representative of chicken meal,
at 25 percent, and I simply wrote chicken at
25 percent.
So again, it should probably have been chicken
and chicken meal. And for some reason in the Pro
Plan Select, I wasn't able to, again, distinguish
between those two. So that again would be a typo, or
it should have been included in that.
Q. And in your lab notes, Dr. Makowski, are you
looking at the page with a Bates number 284?
A. I am.
Q. And in your lab notes, you say chicken and
then there's a number by it. What's that number?
A. In the lab notebook?
Q. In the lab notebook.
A. It says "CM."
Q. No. Above "CM." There's a chicken right
there.
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A. That's canola.
Q. Oh, that's canola. I see.
And you've got CM at 25?
A. I do.
Q. Okay. So, as you sit here today,
Dr. Makowski, can you explain why it is that for some
products you differentiate chicken from chicken meal,
but in others you cannot?
A. It probably has something to do with the way
the Purina Pro Plan was processed, in that I was not
able to make a good distinction between the two.
Again, there may be differences in temperature,
pressure, that prevented that from actually being
delineated in that particular sample.
Q. Are you aware that you also failed to identify
chicken meal in other types of Purina products,
leaving aside the Pro Plan?
A. It's a possibility.
Q. Can we agree, Dr. Makowski, then, that as a
general matter, you can not always through your
microscopy differentiate between chicken and chicken
meal?
A. I think I was able to distinguish between the
two. It's just that I, again, didn't record it
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accurately in the report. So in my laboratory
notebook, it indicated it was chicken meal, and it
was probably both chicken meal and chicken, but I
could not distinguish between the two.
Q. But did you make -- when we were talking about
the Blue Buffalo products, we talked about
refinements you made later that are not reflected
here.
A. Right.
Q. For the Purina products, you didn't make any
refinements, did you?
A. No, I didn't. I didn't, and I'm not -Q. And why is that?
A. Because I couldn't distinguish between the two
readily, and I simply listed it as chicken.
Q. Let me ask you to turn to the next document
I'm going to show you.
I will mark this as Exhibit 17 to the
deposition.
Identification.)
BY MR. MANGI:
Q. Dr. Makowski, what is Exhibit 17?
A. Looks to me like a chemical analysis of a
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variety of products.
Q. Have you ever seen this before?
A. I have not.
Q. Okay. This is not something you utilized in
your analysis?
A. It is not.
Q. You don't know where it came from?
A. I have no idea where it came from.
Q. You will see that there are various products
listed at a row across the top, and then there are
various elements described under "Chemistry." Do you
see that?
A. I do.
Q. And it purports to provide a value for each
product relating to each of those elements?
A. I do.
Q. Now, let me ask you to pay particular
attention to the column all the way on the right, in
fact, the two columns all the way on the right, which
are "Blue Buffalo Life Protection Formula" -A. Uh-huh.
Q. -- "Chicken and Brown Rice (Kibble)." Do you
see those?
A. I do.
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Q. Now, you will see that there is a row three
from the bottom that says "Total Starch."
A. I do, uh-huh.
Q. And for the two products, the Blue Buffalo
products I just described, you'll see that the total
values for total starch based on this apparent
chemistry testing are 35.8 percent and 41.3 percent.
Do you see that?
A. Uh-huh, that's correct.
Q. Now, let me ask you to turn to your report at
PUR 217.
A. Okay.
Q. And you'll see this sample is identified by
you as Blue Buffalo Life Protection-Adult Chicken &
Brown Rice. Do you see that?
A. I do.
Q. So it's the same product in the two columns we
were just looking at -A. Yes.
Q. -- correct?
A. Uh-huh.
Q. And I'm sorry, you should just let me finish
for the court reporter's benefit, please.
And you have your own analysis here, don't
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you, Dr. Makowski, of total starch?
A. I do.
Q. And you identify it as 8 percent, correct?
A. That's correct.
Q. Can you help me understand the discrepancy
between your visual observation of 8 percent and this
chemistry test which is a substantially different
number, 35.8 or 41.3 percent?
the form of the question as lacking foundation,
calling for speculation.
THE WITNESS: The total starch that's
listed would be the total starch in addition to the
starch that would be present in ground barley and
brown rice, so both of those are grains that would
have rice in them -- I'm sorry, would have starch in
them. And so this was starch that I couldn't
identify as being a part of rice or barley.
BY MR. MANGI:
Q. So would it be more accurately described as
starch that's not part of another ingredient?
A. We could say additional starch, would be
another way to do that.
Q. Okay. Now, Dr. Makowski, in terms of your
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expert experience, have you been an expert witness
before?
A. Yes.
Q. And how many times?
A. Twice.
Q. And what were the contexts of those
experiences?
A. Once was for a company that produced frozen
food that had a contaminant in there which proved to
be a hair from a certain particular type of rabbit.
And I did the hair analysis to ascertain what type of
a rabbit it was or what type of an animal it was.
Q. Do you recall the name of the entities that
were involved?
A. Seaboard Farms, but I don't remember the
other.
Q. Do you remember where the case was?
A. It was -- I was deposed in Philadelphia.
Q. Was it a case in a United States Court?
A. I have no idea beyond that.
Q. Did you testify at trial?
A. No.
Q. Do you know if there was a judicial decision
in that case?
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A. I was not made aware of one.
Q. And what was the other case you -A. The other one was in Canada where a cattle
farmer was suing a manufacturer because he lost head
of cattle that died. And I was asked to look at the
sample of the feed that they were feeding, and I
found what I thought were inordinate percentages of
some noxious or toxic weeds to be present -- weed
seeds to be present in those samples.
Q. Do you know what the outcome was of that case?
A. No.
Q. Any other expert experiences?
A. No.
Q. When were those two cases?
A. They are probably within -- well, 10 to
15 years ago. I can't give you specific dates.
Q. Now, let's talk a little bit more about your
identifications of corn, or ground yellow corn, to be
precise.
A. Yes.
Q. Now, did you record anything in your notes or
your report that would explain to us what you saw in
any particular sample that led you to conclude corn
was present?
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A. I indicated the presence of corn.
Q. Did you hear my question, though?
A. The only way I can answer that is to say that
someone who is in the very first day of a microscopy
course, learning how to do feed microscopy, can
identify corn, in fact, within a matter of moments.
Q. And did you describe anywhere in your report
what you saw that led you to conclude in any
particular sample you were seeing corn?
MR. ZARLENGA: I will object to the form
of the question as having been asked and answered.
BY MR. MANGI:
Q. Go ahead.
A. So no.
Q. And you took no pictures of corn, correct?
A. No.
Q. And we can agree, can't we, that there's no
way for any other scientist now, looking at your
work, to validate your conclusions regarding the
presence of corn?
A. Based on only the lab notebook and the final
report, I don't think so.
Q. And there is nothing else for them to look at
in terms of your work, correct?
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A. Except for the original samples.
Q. And so we're clear there, the samples you
looked at you threw away, but you're referring to the
bags from which the samples were taken?
A. Yes.
Q. Did you consider any other possibilities when
you were looking at what you thought may be corn
particles?
A. Corn was the first thing that came to mind.
And so then when I examined a particle of the corn
and placed it under the compound microscope and
examined the starch that was present, it was in
agreement with corn starch. Corn starch is very,
very specific in its size and in its shape, and there
are -- other than maybe oat starch, which is much,
much smaller, that's the only starch that looks that
way.
Q. And do you recall specifically looking at corn
under a compound microscope in connection with the
analysis reflected in your report?
A. I do.
Q. And how many samples did you look at under the
compound microscope in relation to corn?
A. Anytime corn was listed, I looked at it under
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the compound microscope.
Q. So every time in your report you have an
identification of ground yellow corn, it's your
testimony that that was a result of an examination
under a compound microscope?
A. There was a confirmatory examination, yes.
Q. But it was done every time?
A. Every time.
Q. And did you record that anywhere in your
report?
A. No.
Q. So as we sit here today, there's nothing we
can look at that validates that fact, other than your
say-so, correct?
A. Correct.
Q. All right. Now, another thing that you look
at in your report in one of the pictures are rice
hulls; is that correct?
A. That's correct.
Q. What is a rice hull?
A. A rice hull is the outer covering of the rice
grain.
Q. Let me ask you to turn to your manual at
Pages PUR 27 to 28.
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A. Uh-huh.
Q. And if you start on 27, you will see a section
under "Macroscopic Features." Do you see that?
A. I do.
Q. And it says that "the rice grain
(caryopsis)" -- am I saying that correct?
A. You are.
Q. "The rice grain (caryopsis) is enclosed by the
lemma and palea, which form the hull. The rice grain
is smooth, long and elliptical in cross-section. The
grain is shiny white, translucent to opaque, with two
longitudinal parallel ridges on each flat surface."
Did I read that correctly, sir?
A. You did.
Q. And do I understand correctly that you also
had a picture -(Deposition was interrupted by a telephone
intercom message.)
MR. MANGI: Sorry.
BY MR. MANGI:
Q. And you'll see you also provide a picture of
the rice hull at figure 2.28; is that correct?
A. Yes.
Q. And do I understand correctly, sir, that in
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the description you gave, and what's consistent with
what's here in the book, you're describing the hull
as something that's part of rice that is distinct
from the rice grain; is that correct?
A. It's morphologically distinct from the grain.
Q. And the hull is the covering that encloses the
grain; is that correct?
A. Yes, much like a seed coat would cover
something else. Uh-huh.
Q. And did you observe any rice grain in any of
the Blue Buffalo products?
A. It depends on what our definition of "grain"
is. If there's rice hull there, typically or often
we will find that there is rice grain associated with
that.
Q. I'm asking you specifically about this
analysis. I know you've identified rice hull in some
of your work, correct?
A. Yes, yes.
Q. Leaving aside the hull, did you identify any
rice grain in any of your review of Blue Buffalo
products?
A. I'd have to look. If something had ground
rice in it, then I did identify ground rice. But I
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would have to look at each individual report.
Q. To the extent your report does not contain any
references to ground rice, can we agree in that
instance there was no rice grain identified in the
Blue Buffalo products?
A. If it's not listed in the report, then I was
not able to observe it under the microscope.
Q. And is rice starch something that you look at
independently of other things?
A. Yes.
Q. And can you identify rice starch
microscopically?
A. Yes.
Q. Did you identify any rice starch in the Blue
Buffalo products?
A. No, I did not.
Q. Now, in your report you find some consistently
high levels of flax.
A. Uh-huh.
Q. Do you recall that?
A. I do.
Q. In fact, you find some levels at like
62 percent or 50-plus percent in the dark bits, for
example. Do you recall that?
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A. I do.
Q. Is flax, Dr. Makowski, a material that is
subject to potential misidentifications?
A. Not typically. Again, maybe someone just
starting out in the field may misinterpret it, but
not usually.
Q. Now, do you know what the fat component is of
flax?
A. No, I don't.
Q. Do you have any experience in pet food
production or extrusion?
A. No.
Q. Do you have any understanding as to what the
impact would be on the product formulation -- let me
rephrase that -- what the impact would be on the
physical appearance of the product if, in fact, your
flax identifications were accurate?
A. I have no idea.
Q. You don't have an opinion on that one way or
the other?
A. No, I don't.
Q. Did you also look for calcium carbonate in
these products?
A. I did.
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Q. And how about carrots?
A. Not typically. Occasionally, you might -- we
might see something that has an orange color to it,
but I wasn't, if you will, hunting for carrot.
Q. Were you hunting for particular things?
A. What I mean by that is, I'm not looking
specifically for any one ingredient, and so I didn't
see carrot. Carrot is something that would be
difficult to identify, and I -- well, so, I did not
see any of it.
Q. Would you be able to identify calcium
carbonate?
A. Oh, yes.
Q. Were you -- are you able to identify dicalcium
phosphate?
A. Yes.
Q. And is that something you were looking for as
well?
A. I wasn't looking for it, but if it was
present, I was able to recognize it.
Q. And to the extent you saw either calcium
carbonate, carrots, or dicalcium phosphate -A. I'm sorry. Calcium carbonate carrots?
Q. No, as distinct. Calcium carbonate, comma,
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carrots, comma, or dicalcium phosphate. To the
extent you saw any of those three ingredients, would
that be reflected in your report?
A. Certainly the calcium carbonate and the
dicalcium phosphate, if I was able to see it, yes.
Q. Now, one of the things you say in your report
is that feed microscopy requires characterizing the
particles by shape, color, size, softness/hardness,
texture, luster, odor and other histological and
morphological features, correct?
A. That's correct.
Q. And that's a formulation you use in a few
different places, correct?
A. Yes. Yes.
Q. Did you in your report or in your notes
characterize any particular particle you were
observing by shape, color, size, softness/hardness,
texture, luster, odor or other histological or
morphological features?
A. Delineated in the report itself?
Q. Correct.
A. No.
Q. How about in your notes?
A. No.
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Q. To the extent you conducted any of that type
of analysis, it was just in your head?
A. It was based on my experience.
Q. But what I'm saying is, you conducted it
mentally, but you did not memorialize any of that
analysis?
A. That is correct.
Q. And to the extent another scientist wants to
test or validate the work that you did with regard to
any particular particle and these characteristics,
there's no way for them to do that; is that correct?
A. I think I've answered that a couple of times,
but, yes.
Q. Now, let's turn to PUR 211, which is part of
your report.
And do you recall we looked earlier at a
section at the top of the page where you identify
what you saw in Blue Buffalo Life Protection Indoor
Chicken and Brown Rice Formula? Correct?
A. Yes.
Q. And you say in your report, "In both
instances, I found small fragments of egg shell, raw
feather and leg scale." Correct?
A. Correct.
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Q. And that is referring -- when you say "both
instances," you're referring to the two samples of
that product, correct?
A. Correct.
Q. Okay. Now, in the appendix to your report,
you included pictures from one of the samples of that
product; is that correct?
A. Could you give me page numbers, please?
Q. Sure. PUR 249 to 251.
A. Yes.
Q. Let's look at 249 first.
Now, you state above the picture that this was
taken at 20X magnification; is that correct?
A. Yes.
Q. But you do not provide a scale bar in the
picture; is that correct?
A. The camera that I took this with, there was no
software that would allow that type of measuring.
Q. Can we agree that it is customary in the field
for pictures of microscopic analysis to include a
scale bar?
A. Yes, it is.
Q. Now, in this picture of figure 1, you'll see
there is a slightly diagonal vertical line that
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appears to be coming off the middle of the particle
in the middle of this picture.
A. Yes.
Q. What is that vertical line?
A. I actually think it's part of a feather vein.
Q. Is that what's sometimes referred to as a
rachis, in your view?
A. It could be, uh-huh.
Q. And let me ask you to have a look at the
picture on 251, what you've identified as a chicken
or poultry egg shell fragment. Do you see that?
A. I do.
Q. And there's another vertical line towards the
right of that picture. Do you see that?
A. Yes.
Q. And what is that?
A. That's another feather vein.
Q. And when you saw these feather veins, or what
you're now identifying as feather veins in these
pictures, did you conduct any chemical testing to
ascertain whether they are, in fact, chemical veins?
A. Whether they are -Q. Whether they are, in fact, feather veins.
A. No.
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Q. There is, in fact, a test using cysteine
reagent that stains feather rachis dark brown; isn't
there, sir?
A. I'm not aware of that.
Q. You're unaware of that?
A. Of that particular stain, yes.
Q. Really?
Let's have a look at your manual -A. Uh-huh.
Q. -- at Page 96, please. PUR 96.
MR. ASSMUS: Can you give me the page
number, the book number too?
MR. MANGI: 96.
MR. ASSMUS: No, the -MR. ZARLENGA: 87.
MR. ASSMUS: Perfect. Thank you.
MR. MANGI: Oh. You mean the non-Bates
number. Sorry.
BY MR. MANGI:
Q. All right. So, Dr. Makowski, let me ask you
to turn to the left column, and you'll see about five
lines down, there's a sentence starting with, "As
feathers." Do you see that?
A. Are we on Page 95?
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Q. Page 96, PUR 96. Left column, five lines up
from the bottom -- four lines up from the bottom.
A. Yes.
Q. And it says, "As feathers have high
concentrations of cystine, a dimmer of the amino acid
cysteine linked by a disulfide bridge, they react by
staining dark brown when using the cysteine reagent."
Do you see that?
A. I do.
Q. And it says, "This allows differentiating
easily some rachis fragment looking like fish bones
or scales from real fish structures which never turn
brown."
A. Uh-huh.
Q. Do you see that?
A. I do.
Q. And that's, in fact, in your own manual, isn't
it?
A. It is.
Q. But you did not conduct that testing here,
correct?
A. I did not. That's typically reserved for
fragments that are very, very small, approximately
the same size as a bone fragment. And that fragment
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of feather may not contain enough morphology to
easily identify it as a feather.
The other pictures that we just looked at, at
20X, those portions of a feather were large enough
that they could easily be recognized as a feather.
Q. The cysteine reagent staining test is an
objective chemical test, correct?
A. I would say so, yes.
Q. It doesn't depend, for example, on the
observations of an individual microscopist?
A. One would still have to observe the apparent
color change, if there is one that occurs.
Q. Sure. But you're observing whether it turns
brown or not, as opposed to making a decision as to
whether something's a feather or a fish bone?
A. We do have to be careful with microchemical
spot tests, because if there are other things that
are present that may also turn brown, then we can
also have some difficulty differentiating between the
brown particles.
So, again, it would require not only the -just of the turning brown, but being able to observe
morphological features as well.
Q. And, nonetheless, your book describes the use
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of cysteine reagent as a way of confirming whether
something's a feather or a fish bone, right?
A. Correct.
Q. Now, let's talk -- now, let's take a look at
your manual at figure 3.13, that appears on PUR 56.
Do you have that page there?
A. I'm there. I'm there.
Q. And you'll see figure 3.13 is an image of
poultry by-product meal observed under a stereoscope.
Do you see that?
A. I do.
Q. You did not take any pictures of anything that
looks like figure 3.13; is that correct?
A. I did not.
Q. Now, you also identified poultry by-product
meal in various dark bit samples, correct?
A. Correct.
Q. And the percentages you identified there tend
to cluster between 1 and 2 percent, but there's some
that range up as high as 11 percent, correct?
A. Correct.
Q. And is there anything in your report or your
notes that tells us what specifically you saw in any
individual sample of dark bits that led you to
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conclude that they contained poultry by-product meal?
A. No. There's nothing in the report or the
notebook.
Q. So there's nothing that another scientist
could look at to test or validate your conclusions
with regard to the dark bits and poultry by-product
meal, correct?
A. That's correct.
Q. Okay. Now, so let's focus on the samples that
we were -- the sample that we were just talking about
that is discussed in your report at PUR 211.
Now, first let's talk about the egg shell.
You say in both instances you saw small fragments of
egg shell. Can you tell me, Dr. Makowski, in the
first sample of the Blue Buffalo Life Protection
Indoor Chicken and Brown Rice Formula how much egg
shell specifically you saw?
A. One particle.
Q. And how about in the second sample?
A. I think it was also just one.
Q. How much raw feather did you see in the first
sample of this product?
A. Since I don't have it recorded as a
percentage, I can't really answer that. It certainly
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would be less than 1 percent.
Q. Well, as you sit here today, do you know
whether you saw one feather, ten feathers,
20 feathers?
A. There would have been several feathers.
Q. As you sit here today, do you know how many
you saw?
A. No. I can't give you a specific number,
seven, 11.
Q. You just don't know?
A. No. It's been months since I've looked at
that sample.
Q. And you didn't memorialize that anywhere?
A. I did not.
Q. Could it have been one feather?
A. It would have been more than one feather.
Q. How do you know that?
A. Because I think it was more than one feather
in what I would remember in this reporting.
Q. Well, to be clear, do you have a specific
recollection that you saw more than one fragment of a
feather?
A. I have to think about this one particular
sample.
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Q. Yes.
A. And I'm not sure that I can recall that.
Q. Okay. And how about with regard to the second
sample of this product, do you recall how many
fragments of feather you saw in that product?
A. I cannot specifically.
Q. How much leg scale did you see in the first
sample of Blue Buffalo Life Protection Indoor Chicken
and Brown Rice Formula?
A. From what I remember, it was two or three, and
it was the same for the other sample as well.
Q. And do you have a specific recollection that
there were two or three pieces of leg scale?
A. That I do.
Q. And you did not memorialize that information
anywhere in your notes or report?
A. I did not.
Q. Did you attempt to weigh the particles that
you identified as fragments of egg shell, feather or
leg scale?
A. No.
Q. Did you engage in any statistical work to
extrapolate from the fragments that you saw to the
overall proportion of poultry by-product meal in the
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sample?
A. I didn't think I needed to, because my
understanding of poultry by-product meal is any
evidence of leg scale, toe pad, any of the other
markers, is indicative of poultry by-product meal.
We can't distinguish on a percentage basis. If it's
there, it's poultry by-product meal, and if it's not
there, it's poultry meal.
Q. So based on the visual observation of, for
example, one fragment of egg shell, you would then
conclude that everything you're seeing in there as a
chicken meal or -- is, in fact, a chicken by-product
meal?
A. By definition, AAFCO definition, yes.
Q. So, therefore, under your methodology, it is
impossible to have -- to identify both chicken meal
and chicken by-product meal in the same product?
A. I don't think there's any way to necessarily
distinguish between those two. Again, by definition,
if we see those markers present, it's poultry
by-product meal.
Q. Dr. Makowski, let me ask you to pull out from
the stack the report you did of the first round of
testing from January of 2010.
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Exhibit 10, if that helps.
A. Okay.
Q. Have a look -- let's start on the first page
there.
A. Uh-huh.
Q. You see the bottom examination, which is of
sample, the number ending in 183-3. Do you see that?
A. Yes, uh-huh.
Q. And you'll see there you purport to identify
chicken meal, 35 percent; poultry by-product meal,
14 percent. Do you see that?
A. Uh-huh. Uh-huh.
A. Yes. Yes.
Q. Now, I understood your testimony a moment ago,
Dr. Makowski, to be that if any of these markers, as
you call them, are present, you deem the whole thing
by-product meal and you can't differentiate between
the two, yet here you appear to be doing just that.
Can you help me understand that?
A. That was probably just a visual extrapolation
or an attempt to separate those two based on, again,
how much -- again, in a -- on a typical poultry
by-product meal, we might expect to find somewhere
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between 1 and 2 percent leg scale, a certain amount
of feather, what have you.
And then by looking at the amount that I saw,
that was kind of an extrapolation of the total. So,
in this case, I did attempt to make some type of a
distinction between the two.
We also saw a lot of muscle material
throughout that, which I thought would be more of the
chicken meal or part of the chicken meal.
Q. Well, as we sit here today, you don't remember
one way or the other what specifically you saw in
sample 183-3, do you?
A. With regard to?
Q. With regard to anything.
As you sit here today, you have no independent
recollection, independent of this document, of what
you saw in that sample in January -A. No.
Q. -- do you?
A. No.
Q. So, Dr. Makowski, in this instance, when you
saw some, as you call them, markers of poultry
by-product meal -A. Uh-huh.
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Q. -- you did not conclude from that that all of
it was by-product meal, but instead you tried to
extrapolate to some proportion of by-product meal
versus chicken meal, correct?
A. Correct.
Q. And how did you make that extrapolation?
A. Again, based on the percentage of leg scale
and toe pad and other markers that I saw, and
compared that to what we would typically see in a raw
sample or a pure sample of poultry by-product meal.
Q. And again, so the record is clear, as you sit
here today, you have no recollection of what markers,
if any, you saw, correct?
A. Not in these samples.
Q. And did you -- would you have done any
mathematics or statistics to flesh out those
extrapolations?
A. No.
Q. So, why is it, Dr. Makowski, that in
connection with sample 183-3, you apportioned the
markers to some level of by-product meal versus
chicken meal, in fact only 14 by-product meal versus
35 percent chicken meal, but in your subsequent
second round of testing --
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A. Uh-huh.
Q. -- you looked at one fragment of egg shell and
decided the whole thing is by-product meal?
form of that question. That is a
mischaracterization, and it's also to a large extent
been asked and answered.
BY MR. MANGI:
Q. Go ahead.
A. I can't say specifically why I did this here.
My current understanding of poultry by-product meal,
again, according to AAFCO definitions, is that if any
of those markers are present, the entire product is
poultry by-product meal.
Q. So you're saying, based on your present
understanding, this analysis from January 2010 is
wrong?
A. It could be revised.
Q. Well, is it right or is it wrong?
A. It's neither. At the time I did it, my
current understand- -- my understanding at the time
of chicken meal versus poultry by-product meal led me
to give those percentages.
Q. Do you think this is still a legitimate
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analysis?
A. I do.
Q. And this is also a legitimate analysis?
A. Given my current knowledge, yes.
Q. In other words, what you're saying is, both of
these are acceptable methodologies, you can do one
versus the other?
A. If I were to redo the January 6th one, and if
I were to find those markers within, I would have
probably lumped them together as poultry by-product
meal.
Q. Is it possible, Dr. Makowski, to look at your
conclusions with regard to the second round of
testing and break it out as you did for the January
testing?
A. I'd be uncomfortable doing that.
Q. But it's possible to do that?
A. It might be.
Q. And another microscopist might do that?
A. If you could find one willing to attempt it,
they might be able to.
Q. And if, in fact, in the manufacture of a
product, both by-product meal and chicken meal were
poured into the formulation --
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A. Uh-huh.
Q. -- your analysis would call it all by-product
meal, correct?
A. Yes.
MR. MANGI: We can take a break.
BY MR. MANGI:
Q. Now, Dr. Makowski, at some point between your
January round of testing and your subsequent round of
testing, you appear to have changed some of the
assumptions that you used in your identifications of
by-product meal versus chicken meal, as we were
discussing before the break, correct?
A. Correct.
Q. When did you change that assumption?
A. I can't tell you when, but I took some time to
look up AAFCO definitions for different meals,
including poultry meal, poultry by-product meal.
Q. And based on that looking up that you did -A. Uh-huh.
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Q. -- you have adopted the methodology that you
were describing before the break that is reflected in
your July report, correct?
A. The methodology hasn't changed, the reporting
has.
Q. Fine. So you are now, based on that work,
identifying all the poultry meal in a sample as
by-product meal if you spot any of what you have
described as indicators or markers of poultry
by-product?
A. That is correct.
Q. And so we have a clear record, when you use
this phrase "markers," what do you mean by that?
A. An identifier. Something that is indicative
or identifying of an event or whatever.
Q. And what are your markers of poultry
by-product meal?
A. Okay. Leg scale, toe pad, beak, claw.
Anything that would be associated typically with the
head or the legs of a chicken or other type of
poultry.
Q. Now, let's assume that in the production of a
particular product -- let me give you a hypothetical.
Let's say that product had -- I'm making up a
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number -- 28 percent chicken meal in it. Okay? Are
you with me so far?
A. I am.
Q. And let's say when that was being made, the
manufacturer put in -- instead of 28 percent chicken
meal, let's say they put in 27 percent chicken meal
and then 1 percent by-product meal. Are you with me?
A. I am.
Q. And you got the sack, you picked it up, you
jostled it, and let's say through luck, you happened
to get a marker in the sample that you're looking at
that comes from that 1 percent, whether it be an egg
shell, a feather or something else.
A. Uh-huh.
Q. Under the methodology reflected in your
report, you would then identify that product as
containing 28 percent poultry by-product meal; is
that correct?
A. That's correct.
Q. Let's talk now a little bit more about your
markers. Let me ask you to turn to your manual
again. And let's go to the page Bates numbered
PUR 95, which, for my friend Mr. Assmus, is 86 of the
document.
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And let me know, sir, when you're there,
please.
A. I'm there.
Q. The first full paragraph on that page ends
with a sentence reading, "Rendered poultry meals and
poultry by-product meals contain feathers that are
generally processed to the point where only small
feather fragments are detectable."
Do you see that?
A. I do.
Q. So, according to your manual, feathers are
present in both poultry meal and poultry by-product
meal; isn't that correct?
A. Well, we typically see feathers and -feathers in both of those meals. Whether they're
allowed or not, I can't speak to that. I can only
say that typically we see some feather in both.
Q. And if you turn to Page 105 -- I'm sorry,
Bates No. PUR 105, which is Page 96 of the report -you say under "Feathers," in the second sentence,
"Raw feathers can be attributed to environmental
contamination, but may also be present as a poultry
meal or poultry by-product meal."
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A. I do.
Q. So, can we agree then, sir, given what you say
in your manual, the presence of feathers is not
necessarily a marker that the product there is
by-product meal as opposed to chicken meal?
A. I don't know if I'm comfortable saying that.
Q. Well, you say it in your book, don't you?
A. Well, we say that raw feathers can be
attributed to environmental contamination.
Q. Right.
A. I don't know how much environmental
contamination there is in a pet food plant as they're
making kibble, whether there are feathers that are
floating about or what. I'm not sure.
Q. Well, you're not saying here that raw feathers
may be present in both because of environmental
contamination, are you? That's not what it says in
this book.
A. I imagine it depends on how you interpret that
sentence.
Q. Well, how about on Page 95? Is there a
reference there to environmental contamination?
Bates No. PUR 95.
A. No. That simply indicates that poultry meals
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and by-product meals may contain feathers that are
processed to the point where only small feather
fragments are detectable.
Q. So if we were to look -- if we were to go only
based on your book -A. Uh-huh.
Q. -- can we agree, sir, that if I read your
book, I would not take the presence of raw feather as
a necessary indicator that I'm looking at by-product
meal rather than poultry meal, because your book
indicates feathers can be present in both, correct?
A. If we're talking one or two feather fragments,
then I would say you're correct. Often what I've
seen, again, after doing this for 28 years, is that
in poultry by-product meal, we tend to see more
feathers than in poultry meal.
Q. Do you need to know how many feathers you saw
in order to make a conclusion?
A. It's qualitative.
Q. And as you testified earlier, we don't know
how many feathers you saw in any of the samples you
looked at here, correct?
A. No. I said I don't remember how many feathers
I saw in any of the samples.
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Q. Now, are you aware, Dr. Makowski, that your
reference standard for poultry meal has feathers in
it?
A. I am.
Q. You've seen those feathers in there?
A. I have, yes.
Q. Now, when you did your analysis, did you
assume an expected rate of inclusion of feathers in
poultry by-product meal as opposed to an expected
rate of inclusion of feathers in poultry meal?
A. No.
Q. So your assumption was simply that if there
are any feathers, it's by-product meal, correct?
A. No. It could be either if it's feathers.
But, again, if we see more than might be typical, it
might be indicative of poultry by-product meal. But,
again, feathers are not the sole marker for poultry
by-product meal.
Q. Well, we'll get to the others in a minute.
A. Okay.
Q. But just focusing on feathers -A. Uh-huh.
Q. -- you did not use a statistical methodology
based on anticipated rates of inclusion in poultry
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meal versus by-product meal, correct?
A. I'm not sure there is a statistical reference
that we could use to determine what the percentage of
feathers should be in either.
Q. You haven't created one?
A. I have not.
Q. And you're not aware of one that exists?
A. I am not aware of one.
Q. But you are aware from your book and your
reference sample that you find feathers in both?
A. Yes.
Q. Did you conduct any feather reference
standards when making your feather identifications?
A. No.
Q. Let me show you the next document, which we're
going to mark as Exhibit 18 to your deposition.
Identification.)
BY MR. MANGI:
Q. Now, what is Exhibit 18, Dr. Makowski?
A. It looks like a paper that I used, Utilizing
Light Microscopy to Identify the Origin of Rendered
Animal Products in Animal Feeds.
Q. Let me ask you to turn to Page 465.
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A. Uh-huh.
Q. And you see you include there some pictures of
feathers, correct?
A. Correct.
Q. And you say, "Raw feathers have a very
characteristic appearance, composed of barbules," and
"Barbules have distinct nodes." Correct?
A. Correct.
Q. Now, let me ask you to turn to the picture
appended to your report. I will give you the page
number in a moment. Bates No. PUR 250.
A. Okay.
Q. Dr. Makowski, the picture at 250 does not look
like any of the pictures at 465; do you agree?
A. I agree.
Q. Let me ask you to turn back to Dr. Bates'
Aquaculture Manual. And let me ask you to turn to
the page with the Bates number 992. And you'll see
there figure 51, "Feather, unprocessed."
A. That's correct.
Q. And this one has a black background like your
pictures, correct?
A. Correct.
Q. And we can agree, can't we, that figure 51 in
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Dr. Bates' manual looks nothing like figure 2 in your
report?
A. I agree.
Q. And Dr. Bates' picture is at the 12 times
magnification; is that correct?
A. That's correct.
Q. So that's less magnification than yours?
A. I think it is, yes. I'm not certain.
Q. Yours is at 20 magnification; is that right?
A. At least the previous one was.
Q. Do you know what magnification the other
pictures are at?
A. I actually don't.
Q. Okay. So as you sit here today, you know that
the first one is 20 -A. Uh-huh.
Q. -- but the pictures that are at PUR 250, 251
and 252, you don't know what the magnifications are?
A. No. They may be of varying magnifications.
If I can interject, part of the reason the
feather on PUR 000250 doesn't look similar to the one
in Dr. Bates' manual is, this one is also coated with
some of the other ingredients that make up the
kibble, and so it tends to weigh it down. It tends
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to flatten it out a little bit.
As opposed to figure 51 in 992, PUR 992, which
is a pure feather sample.
Q. Would you expect that another microscopist,
let's say Dr. Dravid here, for example, do you think
that he would look at your figure 2, and then he
would look at figure 51 and say, those are the same
thing?
A. I would hope so.
Q. And you would expect that of any reasonably
trained, reasonably competent microscopist?
A. I would.
Q. Do you think that is a topic on which
reasonable minds can differ?
MR. ZARLENGA: I objection to the
vagueness.
THE WITNESS: I'm not sure I can answer
it.
BY MR. MANGI:
Q. Well, it's not a difficult question. I mean,
do you think it is something that is so categorical
that no reasonable person could disagree with it, or
do you think it is something that someone else might
have a different opinion on?
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question as argumentative.
THE WITNESS: Are you asking would someone
look at these two pictures and agree or disagree that
they are the same thing?
BY MR. MANGI:
Q. Yeah.
A. Someone with no training may not be able to
determine that.
Q. How about a microscopist?
A. I think a microscopist would be able to say
that they are both the same.
Q. And that's my question. So, is your
testimony, then, that among different microscopists,
no reasonable microscopist could look at these and
say, these are not the same thing or there is no
basis here to conclude these are the same thing?
A. I would be willing to say that 90 percent of
the population would be able to tell that figure 2 is
a feather.
Q. The population in general?
A. In general, untrained.
Q. Including me?
A. Absolutely.
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Q. So you think if I look at figure 2 -A. Can I interrupt? The picture is a terrible
picture. I'll stipulate to that. The background
is -- it's dark, and there is not sufficient lighting
for this.
If this same particle was taken under a better
microscope with adequate lighting, anyone, including
yourself, would be able to determine that that's a
feather.
Q. But we don't have a better picture, do we?
A. Today we don't.
Q. This is your picture.
A. This is a picture that I took.
Q. And you threw away the sample.
A. I'm sorry?
Q. And you threw away the sample, sub-sample.
A. The sub-sample that was on the board for
examination, correct. But I do have a lot of the
retained samples that have not yet been ground, that
we could easily go back and grind and look to see if
feathers are present.
Q. We'll get there.
Now, are you familiar, Dr. Makowski, with
pinfeathers?
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A. I am.
Q. What is a pinfeather?
A. It's a much smaller feather. A tiny feather.
Q. And how do you end up with your chicken having
a pinfeather as opposed to another type of feather?
A. I'm not a chicken morphologist, or I really
couldn't speak to that. I might think it's similar
to a down feather, but I really -- I really couldn't
say.
Q. Do you differentiate between pinfeathers and
other types of feathers in your analysis?
A. Unfortunately, a feather is a feather is a
feather, as far as I'm concerned.
Q. Do you think all feed microscopists would
agree with that conclusion?
A. I've never asked all feed microscopists if
they agree with that.
Q. I'm asking whether you think they would agree
with that.
A. I don't think I can answer that. I imagine it
would have something to do with their area of focus
and concentration. If they were a microscopist who
focused essentially -- sorry for the pun all the time
here -- if they focused entirely on feathers and
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chickens and avian-types of things, I'm sure they
would be able to distinguish between a pinfeather and
any other type of feather.
In the type of work that I do, there has never
been a requirement to distinguish between a
pinfeather or any other type of feather.
Q. If a microscopist has familiarity with poultry
and the poultry industry and poultry rendering, do
you think it is possible that they might draw
different conclusions from the presence of a
pinfeather versus a fully grown feather?
MR. ZARLENGA: I'll just object to the
form of the question. Overbroad. Calls for
speculation.
THE WITNESS: I can't answer that.
BY MR. MANGI:
Q. But in your analysis, you just don't
differentiate between them, correct?
A. That's correct.
Q. For all we know, everything you saw may have
been a pinfeather.
A. Well, these -- most of these feathers were
much larger than what my understanding of what a
pinfeather is. Now, again, I could be incorrect on
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that, but these are obviously feathers.
Q. Now, what proportion of the feathers that you
identified, if any, across your entire analysis, not
just talking about these samples now, did you subject
to analysis under a compound microscope?
A. Typically, that is reserved for hydrolyzed
feathers or hydrolyzed feather meal.
Q. So what is the answer to my question?
A. Could you restate it again? I'm sorry.
Q. Sure.
Across the analysis you did here, across all
the samples, what -A. Just the -- just this report that we are
talking about today?
Q. Correct.
A. Yes.
Q. What proportion of the items that you saw as
feathers did you subject to further examination under
a compound microscope, if any?
A. Zero percent. There really wasn't need to,
because we could easily -- I could easily identify
them under low power.
Q. Okay. Let me ask you to look at your manual
at PUR 81.
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All right, Dr. Makowski. Here in your manual
on Page 72 or PUR 81, I would like to draw your
attention to the left column and the last paragraph
that appears above "Flotate." Do you have that
paragraph, sir?
A. I do.
Q. And it says, "During the examination, suspect
animal products should be pulled out from the sample
with forceps for further examination with the
compound microscope. Examination of suspect muscle,
feather, and hair fragments with the compound
microscope is required to confirm their identity, as
often there are non-animal products (e.g. various
plant products, synthetic fibers, et cetera) that can
be mistaken as animal products [sic]. Distinguishing
between animal product markers and similar looking
products using the stereoscope can be difficult, if
not impossible in some cases. However, this
distinction is generally quite clear when the suspect
specimen is observed with the compound microscope."
A. I do.
Q. Can we agree, sir, that your own manual says
that further examination with a compound microscope
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is required to confirm an identification of a
feather?
A. I think the intent here is that when there are
particles that are in doubt, then they should -- they
must be placed under the microscope in order to
ascertain what they truly are, to prevent them from
being recognized or tagged as something other than
what they are.
Q. And indeed, your book says they should be
pulled out with forceps and examination with a
compound microscope is required to confirm their
identity, correct?
form of the question as misleading.
BY MR. MANGI:
Q. Let me rephrase it.
Your book says that feathers "should be pulled
out from the sample with forceps for further
examination."
And your book says that, quote -- that
examination "with the compound microscope is required
to confirm their identity."
That is what your manual says, isn't it?
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THE WITNESS: The sentence that's key to
this and that represents the intent of that paragraph
is, "Distinguishing between animal product markers
and similar looking products using the stereoscope
can be difficult."
So, if one has difficulty distinguishing
between the two, then they must take a look under the
compound microscope. That's the intent of that
paragraph.
BY MR. MANGI:
Q. I see. And what you're saying is, you didn't
find it difficult, so you didn't have to do that.
A. I can identify a feather. Yes.
Q. So, in other words, what you are saying is,
trust me, I'm an expert, I know it when I see it, and
I don't need to do this confirmation?
A. I wouldn't be quite so belligerent about it.
But after 28 years of looking at these kinds of
products, I would say I can probably identify a
feather.
Q. So, in other words -- and I don't mean to be
belligerent. I'm just saying, your point is, you
know, trust me, I know a feather under a stereo
microscope, and I don't need a compound microscope.
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form of the question. Badgering. Argumentative.
BY MR. MANGI:
Q. I don't mean to badger you. I am just trying
to understand your point. Is that accurate?
A. It's accurate that I can -- I believe that I
can identify a feather under the stereo microscope,
and do not always need to in every case examine it
under the compound microscope to confirm that.
Q. And in this case, you did it in no cases.
A. I did not.
Q. I'm going to ask you to turn to Page 94 to 95
of your manual.
A. Uh-huh.
Q. And starting on 94, there is a section
entitled "Feathers." Do you see that?
A. Yes.
Q. And then there is a subsection entitled
"Stereoscopic Features." Do you see that?
A. Yes.
Q. And starting right at the end of Page 94, you
say, "The rachis may be misidentified as a fish bone
fragment or a hair fragment. Therefore, suspect
fragments should be verified with the compound
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microscope."
A. Yes.
Q. And, again, that is something that you did not
do in this case, correct?
A. I did not need to, no. You are correct.
Q. And in fact, as we described earlier today,
you did not conduct a cysteine reagent chemical test
either, which also differentiates between feather and
fish bone, correct?
A. In very small fragments, yes. Cysteine does
differentiate between them.
Q. Now, I'm sorry, just to be clear, when I asked
you this morning, you said you weren't aware of a
staining test using cysteine reagent, but now you
appear to be familiar with it. Am I missing
something?
A. I just read it, yes.
Q. So you are basing what you say off what you
just read in your manual?
A. Yes. I haven't tried it, so I can't speak
from experience. I can only speak from what is
written here.
Q. Would you agree, sir, that large muscle
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fragments can also be mistaken for a feather or barb
fragment?
A. I have never had that experience.
Q. Let's turn to your manual at Page 87. And
here in your manual you have a section entitled
"Potential Misidentification Traps." Do you see
that, sir?
A. I do.
Q. And it says, "Larger muscle fragments detected
with a stereoscope may be mistaken as a hair
fragment, a feather barb fragment, or other similar
looking fragments. Suspect muscle fragments detected
with the stereoscope should be isolated and observed
with the compound microscope."
Do you see that?
A. I do.
Q. And so, indeed, your book does say that muscle
fragments are a potential misidentification trap for
a feather rachis, correct?
A. For the inexperienced microscopist, yes, which
is why this particular section is written here.
The other thing I would point out from this
particular paragraph is, a feather barb fragment,
which is not the rachis, that's the small piece that
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extends out, and then not even that piece, but the
small piece that extends out from that, which allows
the feathers to interlock, which provides air so that
a bird can fly and trap air.
Those are the things that can, in some cases,
be mistaken as muscle.
Q. But you are sufficiently confident in your
abilities that you don't think you need to do any of
the confirmatory work?
A. That's not what I said. I said in the samples
that we looked at, the feather fragments were large
enough to be identified under the stereomicroscope.
Q. But as you sit here today, you don't remember
what you saw, do you, Dr. Makowski?
A. I remember I saw feathers. I told you I
didn't remember how many feathers I saw.
Q. Do you remember what every individual feather
fragment you saw looked like?
A. It's not important. Each one looks like a
feather. Like snowflakes, not all feathers are
identical.
Q. No, that's the point. But you don't remember
what they look like as you sit here today, correct?
A. I remember that they looked like feathers.
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Q. Now, you are aware that feathers can be
examined under a polarized light to see if they
exhibit birefringence?
A. Birefringence, yes.
Q. You didn't do that test, did you,
Dr. Makowski?
A. Again, I did not need to in this instance.
Q. Now, with regard to any of the identifications
you did here, did you do any confirmatory elemental
analysis?
A. Would you explain what you mean by that?
Q. Sure.
Did you look at the relative amount of the
elements, carbon, nitrogen, et cetera, in a
particular suspect fragment to see what its makeup
was?
A. It's not -THE REPORTER: "Carbon, nitrogen" -BY MR. MANGI:
Q. Let's start the question again.
Did you look -- conduct elemental analysis, by
which I mean did you look at the relative amount of
elements in a suspect fragment, in order to further
assess what it is?
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A. That's outside of the domain of feed
microscopy, agricultural microscopy, so the answer is
no.
Q. I'm just asking if you did it or not.
A. No.
Q. Okay. Did you conduct any confocal laser
scanning microscopy?
A. If I had one, I would have, but I don't have
one. And, again, most microscopists -- agricultural
microscopists, do not have to go to that level of
magnification.
Q. You know what it is, though, don't you?
A. I do.
Q. And if you had it, it would be a useful tool?
A. No. Not in feed microscopy. Not in
agricultural microscopy.
Q. Do you think it would have no bearing on
confirming -A. It would have -Q. -- on confirming any of your points?
A. It would be minimal, at best, in one instance
out of a million.
Q. Did you conduct any FTIR-related microscopy?
A. I did not.
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Q. Did you conduct any PCR analysis?
A. I did not.
Q. Now, PCR would tell us whether something was
of animal origin or not, wouldn't it?
A. It would.
Q. But you didn't do that?
A. I did not.
Q. Did you do any mass spectrometry?
A. I did not.
Q. Now, you also identified what you categorized
as egg shell fragments, as you testified earlier
today, in the sample we have been talking about?
A. That's correct.
Q. I'm sorry. Let me rephrase it.
In the two samples of the one product we have
been talking about, discussed in your report at
PUR 211, you also talked about egg shell, right?
A. Uh-huh.
THE REPORTER: Sorry, I didn't understand
what you said. "Discussed in your report" -MR. MANGI: Sure.
BY MR. MANGI:
Q. At PUR 2 -- let me start the question again.
In your report, at PUR 211, you discussed two
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samples of one Blue Buffalo product, right?
A. Uh-huh.
Q. And one of the markers, as you've been
describing it, that you found was a fragment of egg
shell, correct?
A. Correct.
Q. Now, in your manual, you identify egg shells
as being a defining characteristic of what you call
poultry hatchery by-products; is that correct?
A. Uh-huh.
Q. What is a poultry hatchery by-product?
A. That's when you go into a hatchery, where they
are hatching chickens, and they will take those
chicks that have died, any unfertilized eggs or
fertilized eggs that aren't developing, as well as
any chickens that have died, and grind all of that up
as well, as part of what sometimes is called hatchery
waste as well.
Q. And you also have a definition in your manual
of poultry by-product meal, correct?
A. That's correct.
Q. And you do not identify egg shell as a marker
of by-product meal in your manual definition; isn't
that right?
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A. In the manual, no.
Q. So, even if you're right about the presence of
egg shell, can you help me understand your basis for
confirming from the inclusion of a fragment of egg
shell that the product necessarily includes poultry
by-product meal?
A. I can tell you as to why I think there could
be egg shell present, and that could be it simply was
attached to a chicken when it was slaughtered. Okay?
As part of the leg. It could be any part of it when
it's slaughtered.
To find -- actually, to find egg shell
present, as you've read, is indicative of hatchery
waste, which is even worse than poultry by-product
meal. So the presence of egg shell could even
suggest that the poultry by-product meal was blended
with hatchery waste, and then sold as whatever the
ingredient might be.
Q. Could it suggest, Dr. Makowski, a simple
rendering issue where, let's say, a chicken has an
egg inside it that was not laid, and the egg gets
swept in with the -- as a result of an issue in the
rendering process?
A. I was going to say it's conceivable, but
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that's another poor joke.
I don't think so. I think those chickens that
have been rendered are past producing an egg. So I
think it is unlikely that they would be producing an
egg post-slaughter.
Q. Is it possible that a poultry expert might
disagree with you on that?
A. Absolutely possible.
Q. You are not an expert on the rendering
process?
A. I am not.
Q. And you don't purport to be an expert on what
type of chicken goes into a pet food product versus
what type doesn't?
A. I do not.
Q. And you will agree with me, won't you, sir,
that it's certainly a possibility that an explanation
for the presence of a fragment of egg shell may be a
rendering issue unrelated to the use of poultry
by-product meal?
form of that question as calling for speculation;
utterly lacking in foundation.
BY MR. MANGI:
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Q. Go ahead.
A. I'm not sure that I could say that that's a
possibility or not. Again, I'm just not familiar
enough to be able to say that it is a possibility or
isn't a possibility.
Q. You don't know one way or the other?
A. Not with regard to what you just asked, no.
Q. But in fact, in your analysis in your report,
you did make an assumption, didn't you, that you
assumed from the presence of a fragment of egg shell,
that meant it was poultry by-product meal, correct?
A. That it would be some of the things that we
might -- might see in something like poultry
by-product or hatchery waste. I wasn't willing to
call it hatchery waste on the basis of one piece of
egg shell.
Q. And you did not account in your analysis in
any way for the possibility of an innocent rendering
issue resulting in an egg making its way into a
product?
A. No.
Q. You think that possibility is laughable?
A. I don't know if it is laughable or not. It's
just not the kind of detail that I would go into. If
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I explained every possibility for every ingredient
that was present in a feed, we'd have -- we would
have reports that are hundreds of pages long.
Q. Because there are many possibilities that
explain the presence of a particular product,
correct?
A. There are certainly different ways that we can
conjecture that things will happen, or might happen.
Q. Because the rendering process is sometimes an
imprecise one; is that your view?
A. I have no idea.
Q. Do you know anything about the rendering
process?
A. I know what rendering is.
Q. Have you ever been in a rendering facility?
A. I have not.
Q. Have you ever been in a pet food manufacturing
facility?
A. No.
Q. Have you ever watched a video of pet food
being produced?
A. No.
Q. Have you ever watched video of poultry
rendering?
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A. No.
Q. Now, figure 3 at PUR 251 in your report, that
is the picture that you described as egg shell,
correct?
A. Yes. Uh-huh.
Q. Is this identification something that you
think reasonable microscopists might disagree about?
A. There is some potential for disagreement.
Q. What might another microscopist think this is?
A. It depends on their experience. They might
think it's a lot of things.
Q. What are the possibilities or potential
misidentification traps, as your manual refers to?
A. They might misidentify it as a toe pad or a
leg scale.
Q. Anything else?
A. I don't know what else I would conjecture that
they might think it is. Again, I'm not really sure.
Q. Might they consider it to be a calcium
carbonate mineral deposit?
A. No.
Q. And what features lead you to definitively
exclude that as a possibility?
A. Well, let's back up a little bit. Egg shell
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is calcium carbonate, but in an egg shell, it has
layers to it. The outer layer has a little bit of a
pigment layer to it, and then there is a thicker
white layer to it. That's what I observed here. It
had a little bit of a pigment layer and a little bit
of a whiter, lighter layer to it. And I have never
seen that in calcium carbonate.
Q. Have you ever observed calcium carbonate
scales that result from accumulation on rendering or
pet food formulation equipment?
A. No.
Q. So, you don't know what that -- a flake of
that would look like under the microscope?
A. No.
Q. And you didn't do any secondary or
confirmatory analysis that would confirm, other than
your own visual observation, whether this was in fact
an egg shell fragment versus a calcium carbonate
deposit; is that correct?
A. The only other thing that could have been done
would be to add a little bit of dilute hydrochloric
acid on it, and we would have gotten effervescence,
which we would have gotten from calcium carbonate
anyway, since that's its chemical makeup.
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Q. So that wouldn't answer the question?
A. No. It wouldn't be able to distinguish
between the two. So, again, the visual striation of
dark or pinkish orangish to light is often the,
again, indicator that we have an egg shell.
Q. And did you consult an egg shell reference
standard?
A. I did not.
Q. Do you have an egg shell reference standard?
A. I do not.
Q. And doesn't your book suggest that you should
make comparisons to reference standards?
A. When reference standards are available, yes.
Q. So if you had an egg shell reference standard,
it would have been useful in your work?
A. Perhaps.
Q. Now, you referred to some striations. Can you
point out where those are in figure 3?
A. No, I can't, because it's lying flat. So, if
I were to be able to tip that on to its edge, then we
would be able to see those -- that striation.
Q. Did you do that when you were conducting your
analysis?
A. Yes.
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Q. Do you have a firm recollection of that as you
sit here today?
A. I do.
Q. Did you document that in any way?
A. No.
Q. Did you write it in your notes?
A. No.
Q. Did you take a picture of the striations?
A. No.
Q. In what density-dependent fraction from the
flotation protocol did you find this egg shell
fragment?
A. I think it was in the middle fraction.
Q. And do you have a confident recollection of
that as you sit here today?
A. Not a hundred percent, but I'm trying to
remember. That might be where it was.
Q. To the best of your recollection, that's where
you found it?
A. It was either there or in the heavy fraction.
It was one or the other. And sometimes there is some
overlap between those as well.
Q. And are you saying that based on an
independent recollection, or based on your general
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knowledge of where you would expect such a fragment
to be?
A. Probably more where I would expect it to be.
Q. Now, other than the one fragment in each of
the samples of the product identified at PUR 211, do
you recall whether you saw egg shell fragments in any
of the other samples?
A. I don't recall seeing any.
Q. Do you recall whether you saw feathers in any
of the other samples?
A. Not right now, no.
Q. And as you sit here today, do you recall
whether you saw leg scales in any of the other
samples?
A. If I did not report poultry meal or poultry
by-product meal, then no, I didn't see any leg
scales. But I can't recall at this point whether
this sample had it or didn't have it.
Q. By "this," you mean any given sample?
A. In visualizing a particular sample, I can't
today say it either had something or didn't have
something. But that would be true for any of the
ingredients.
Q. Did you see any toe pads in any of the
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samples?
A. No, I did not.
Q. What do you make of that?
A. I'm not sure. I just didn't see anything that
looked like a toe pad to me.
Q. Did you see any heads, beaks, crowns?
A. No.
Q. What do you make of that?
A. It could be there were no heads involved,
maybe only the legs. I'm not sure.
Q. If a product did in fact include 24 percent
poultry by-product meal, wouldn't you expect to see
some of these markers, toe pads, beaks, heads?
A. It's possible. Not always.
Q. Would you expect to see it?
A. Sometimes. The legs -- the legs are the
largest portion here. And the neck, by the way, also
has scales, so we are going to see leg scales or
scaling in general from either the head or the feet.
Q. By the way, when we talk about leg scale,
poultry leg scale, as you described in your report,
what part of the chicken are we talking about a scale
from?
A. Everything from the feathers down to the
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claws.
Q. Okay. So, as I think of a chicken, I think
of, you know, the feathery bit, and then there is the
leg that doesn't have any feathers on it.
A. Yeah.
Q. So does a leg scale come from the leg bit
without any feathers on it?
A. Yes.
Q. And then there is the claw underneath that,
which are the various toe-like things of the chicken,
correct?
A. They're curved. Yeah.
Q. Okay. And the leg scale comes from either the
leg part or the claw part; is that your testimony?
A. Let's say the leg or the feet.
Q. Got it.
Is a foot distinct from a claw on a chicken?
A. A claw would extend out from the foot.
Q. Got it. So the claw is like the toenail?
A. Yeah.
Q. Got it.
A. That's a good analogy.
Q. Okay. So the leg scale is either from the leg
part or the foot part?
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A. Uh-huh.
Q. Now, the leg scale picture you provide at
PUR 249 in your photographic appendix -- do you have
that, sir?
A. Uh-huh. I do.
Q. And what features did you use to identify this
as a leg scale?
A. Again, it is not well represented in this
particular picture, but what we are going to see is
something that tends to be clear, but slightly
opaque. So it's like looking through a frosted
windowpane. And, again, it's going to be an
irregular shape. And if we were to look at it in a
higher magnification, we would see almost layers.
Q. And did you document those layers?
A. No.
Q. Did you look at those layers in any of this
analysis?
A. No.
Q. Okay. So, what is the work that you actually
did to identify whatever you saw in this instance or
in any others as a poultry leg scale?
A. The irregular clear to opaque material in the
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Q. Anything else?
A. No.
Q. What do you make of the fact that this appears
to be amber in color?
A. It's just poor lighting.
Q. And do you recall what color this fragment
was?
A. It was clear. Clear to whitish.
Q. By "clear," do you mean transparent?
A. Somewhat transparent, but slightly opaque.
That's why I said clear to white.
Q. And you have no images, do you, that represent
that coloration?
A. I do not.
Q. What sort of lighting would cause something
that's white to appear amber?
A. Poor lighting.
Q. Well, were you using an amber-colored light?
A. I wasn't using any light in this case. It was
just room light. I was simply taking a few pictures
to see how they might look.
Q. Did you take any measure of the level of
transparency that you were observing?
A. No.
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Q. Is it possible to do that?
A. I don't have anything that would allow me to
do that.
Q. But there is equipment that permits such an
analysis?
A. I think there probably is, yes.
Q. Do you have a leg scale reference standard?
A. No, I do not.
Q. And, again, your book does counsel
microscopists to always use a reference standard in
making an identification, correct?
A. Yes. What I do have are samples of poultry
by-product meal that contain leg scales.
Q. And did you conduct a side-by-side analysis of
your reference standard to this scale when you did
this analysis?
A. Uh-huh.
Q. You did?
A. Yes.
Q. And do you have a specific recollection of
having done that?
A. I actually pulled out a leg scale from a
poultry by-product reference and set it next to the
sample.
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Q. And did you observe any differences between
the two?
A. Other than this was slightly darker because of
it being blended in with the kibble.
Q. Do you think that a reasonable microscopist
might look at this and have a different view as to
what this, in fact, is?
A. I can't answer that.
Q. Do you think it's possible that a microscopist
might take the view that this is, in fact, a fish
scale?
A. No.
Q. Why is that?
A. Fish scales have concentric rings that are
similar to the growth rings on a tree, and so we
don't find those striations in a leg scale.
Q. Have you ever observed, sir, a fish scale that
has been through a pet food manufacturing process?
A. Yes.
Q. And you still observe the same characteristics
that you just described?
A. I do, yes.
Q. What steps did you take to confirm this is not
connective plant or fruit tissue?
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A. I didn't do anything to confirm or not confirm
that.
Q. If you had conducted a PCR analysis, would
that have definitively confirmed that this is animal
origin versus plant origin?
A. Is it PCR analysis you want to ask? All PCR
analysis does is amplify DNA. It doesn't identify
DNA.
Q. Okay. Well, PCR in combination with a DNA
analysis then. In other words, using a DNA analysis,
would it have been possible to confirm that this is
of animal origin rather than plant origin?
A. I suppose it would, or I expect it would.
Q. Do you recall in what density-dependent
fragment from the flotation you found this leg scale?
A. This was in either the middle or the light. I
do remember that. It wasn't in the heavy fraction.
Q. And did any of the resources you consulted in
connection with your work provide an expected rate of
inclusion of leg scale in -A. No.
Q. I'm sorry, let me finish.
-- in poultry by-product meal versus poultry
meal?
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A. No. Let me rephrase that, or re-answer that.
References that I have indicated that poultry meal
contains no leg scales. Poultry by-product meal will
contain leg scales.
Q. And what references are you referring to?
A. AAFCO.
Q. The AAFCO manual?
A. Yes.
MR. MANGI: We can take a break.
and this is the beginning of DVD No. 4 [sic].
BY MR. MANGI:
Q. Dr. Makowski, what is a check sample program?
A. A check sample program is one in which
individuals participate to see how accurate they are
in identifying a variety of things.
Q. And what is the context for these programs?
A. Often it is to check how well an individual
does at identifying, again, a variety of products.
Q. So the record is clear, these are programs
used in the context of microscopy, correct?
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A. Not always. A check sample program can be
used to identify certain types of oils. I mean,
there are a variety of check samples that ask
individuals to identify many, many, many things.
Q. The idea generally is you can look at a sample
where it's blinded but someone knows what it is, and
then you can see if you got it right or not, correct?
A. That's correct.
Q. Okay. And under the auspices of AAFM, you
have conducted check sample programs for agricultural
microscopists to check their skills, correct?
A. That's correct.
Q. Do you conduct those today?
A. No, we don't.
Q. When did you stop?
A. Well, actually we do. We do. I just don't
oversee it.
The number of microscopists who are
participating are a little -- it's a little bit lower
now than it was, say, 15 years ago, 10 years ago.
Q. How many participate?
A. I have no idea.
Q. When did you administer the program?
A. Oh, that would be back in the '90s.
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Q. And how many participated then?
A. I would say 20.
Q. Had you ever participated in check sample -A. I did.
Q. -- programs yourself?
A. I did at one point, yes.
Q. When was that?
A. In my early career as a microscopist.
Q. And how did you do?
A. I did quite well.
Q. Did you have a hundred percent correct rate?
A. No one has a hundred percent.
Q. What sort of rates -- what's the range of
rates you tend to see among microscopists?
A. Anywhere from 50 to 90 -- 98 percent.
Q. Is it fair to say, sir, that this is a
discipline in which the accuracy of results depends
in large part on the individual skill of the
microscopist?
A. Yes.
Q. And with a varying skill level, you will get
varying degrees of accuracy?
A. Yes.
Q. One microscopist -- one microscopist might get
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50 percent of the identifications right, and another
might get 90 percent right?
A. Yes.
Q. But no one gets a hundred percent right all
the time.
A. Not all the time, no.
Q. Because this is not like an objective chemical
test where there is a level of certainty associated
with your results, correct?
A. I think there is a high level of certainty.
The thing is, not everyone gets everything right.
Q. But -- let me be more specific. If you want
to know, for example, if you have a particular
genetic syndrome, you can conduct a genetic test and
it will tell you to a virtual certainty that yes, you
have that syndrome, or no, you don't have that
syndrome, right?
A. Not always.
Q. Okay. But there are instances in which you
can have that level of certainty?
A. Yes.
Q. For example, if you want to know whether or
not you have Down Syndrome, there is a test that
tells you whether or not you have that chromosome and
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you have Down Syndrome, correct?
A. A carrier-type analysis is one way. It's not
always.
Q. And there are other chemical tests, aren't
there, that do give you certainty to a high degree,
like certain chemical staining tests, for example?
A. I'm not sure what you mean by "chemical
staining tests."
Q. Well, let's say, for example, you want to
identify blood.
A. Okay.
Q. Is there a chemical way that you know of, of
identifying blood?
A. Only -- yes. Yes. Uh-huh.
Q. Can you be certain whether it is blood versus
tomato juice?
A. Oh, yes. I mean, we can distinguish between
those two, certainly.
Q. And is it fair to say, sir, that agricultural
microscopy is a little bit different in that now you
are not assessing whether or not a particular
chemical reaction has occurred or whether on a
computerized genetic analysis you are seeing a
particular sequence; here, someone is looking at it
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visually, computing it in their brain, making a
determination? Yes?
A. In some cases. If you want to use your
example of blood, we do have chemical confirmatory
tests to see for the presence of blood.
Q. Absolutely. And I'm not talking now about the
confirmatory tests. I'm just talking about the
agricultural microscopy visual analysis using a
stereo microscope.
A. I'm sorry. Was there a question in there?
Q. Yeah.
A. I didn't catch it. I'm sorry.
Q. The question was, that discipline, that field,
does not have the same level of certainty associated
with it as certain other diagnostic tests, for
example.
A. I think that was a statement, not a question.
Q. Do you agree with it, is the question.
A. Not in all cases.
Q. What do you mean?
A. It depends on what diagnostic tests we are
talking about.
Q. Okay. What is the most certain diagnostic
chemical test that you know of?
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A. I mean, there are many.
Q. Give me one.
A. But there are many that we use in microscopy
as well.
Q. Give me one chemical test for something that
you consider a hundred percent definitive.
A. I can give you one that we use in microscopy,
would be adding silver nitrate to a phosphate. That
is going to produce a chemical reaction where we are
going to get a green precipitate.
Q. And is that used to identify whether or not
something is silver nitrate?
A. No. It's a -- silver nitrate is the reagent
that helps us to identify the presence of phosphate.
Q. Okay. So, is that a hundred percent
dependable test, it's always right?
A. No.
Q. And how certain is that?
A. It might be 98 or 99 percent.
Q. Are there any chemical tests that you know of
or genetic tests that you consider a hundred percent
definitive?
A. I don't consider anything to be a hundred
percent definitive.
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Q. Do you consider anything to be more than -THE REPORTER: I can't -- you have to give
me a little bit of time. I cannot do this.
MR. MANGI: I understand.
THE REPORTER: I missed the answer.
MR. MANGI: Let's continue. I understand.
I'll do my best to be slow for you.
BY MR. MANGI:
Q. Do you understand -- are there any tests that
you would categorize as being more than 99.9 percent
certain?
A. I don't know if I can give you a good example
today.
Q. Okay. Do you consider an individual's
analysis under a stereo microscope to be a definitive
analysis?
A. I think you'll have to define "definitive" for
me.
Q. Do you -- do you consider it to be something
that has a very high level of certainty associated
with an identification?
A. I think that would depend upon the person
performing the analysis.
Q. And if someone is terrible at agricultural
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microscopy, maybe they'd get everything wrong, yes?
A. That would be unusual, but they would get less
right.
Q. Now, in your own case, do you have any basis
for assessing your own error rate?
A. Only through anecdotal feedback from
individuals for whom I performed analyses, where they
may have called and wanted to discuss it and wanted
to know how I could be so accurate by just observing
under the microscope.
Q. What's your own view as to how much of the
time you get it right?
A. I think I get it right a vast majority of the
time.
Q. A hundred percent of the time?
A. No one gets it right a hundred percent of the
time.
Q. How right do you think you get it?
A. Very right.
Q. Ninety-nine percent?
A. I don't know if we can quantify something like
that.
Q. Would you say more than 90 percent?
A. Depending upon the thing that we are looking
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at, perhaps.
Q. Now, sometimes you do change your mind, don't
you, about what you think you observed?
A. After a secondary evaluation, we may -- I may
come to a different conclusion, yes.
Q. And you said in a speech that sometimes you
put something away for a few hours or a day, and then
sometimes you'll see things you missed previously or
you'll reconsider what you think something might be?
A. It's always good to look at a sample with
fresh eyes after you have been looking at it for a
period of time.
Q. Can we agree that field microsco- -microscopy is not a discipline in which there is any
one particular scientifically verifiable accuracy
level associated with it?
A. It's vague. I'm not sure what you are asking.
Q. Well, for example, you know, sometimes you
hear, you know, this is a -- we have compared this
criminal's DNA or the suspect's DNA to the person we
know committed the crime, and we can say, you know,
to a level of 99.99852535 that it's the same guy.
A. Uh-huh.
Q. You have no methodology for calculating the
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same level of confidence or certainty as to your
conclusions in the field of -- in field microscopy;
is that correct?
A. Feed microscopy?
Q. Feed microscopy.
A. I'm not sure that we are talking -- we are
talking about apples and oranges here.
Q. I know we are.
A. So, I mean, 99.9 percent of microscopists can
identify corn. I don't know if that's similar to
what you are asking with regard to DNA analysis.
Q. Well, in a sense, that illustrates my point,
which is, you have no scientific basis you can point
to for the 99.8 percent figure you just tossed out,
correct?
A. I'm not sure what scientific basis you are -Q. There is no survey you can point to. There's
no test you can point to, no statistically relevant
analysis of, you know, here are a thousand
microscopists, we had them all look at corn, and
based on that study, we can say 99.8 percent of them
know how to identify it.
A. We did do check sample analyses, and
99 percent or more were able to identify corn in a
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mixed feed sample.
Q. And you recall that statistic specifically?
A. Uh-huh.
Q. And when did you run that math?
A. Oh, years ago.
Q. So you sat at some point and you counted up
all the results of all the check sample programs, and
you calculated across all the years how many people
got corn right; is that your testimony?
A. I would read a report from one particular year
and take a look at any time there was corn in a
sample, how many people were able to identify corn.
Q. So you have never done the statistical
analysis we are talking about, correct?
A. There was no need to do that.
Q. Is the answer that you haven't done it, sir?
A. That's correct. Uh-huh.
Q. Now, with regard to the dark bits, you, in a
number of instances, said you identified 1 percent or
2 percent of poultry by-product meal; is that
correct?
A. Uh-huh.
Q. Now, how, sir, did you come to these rather
specific conclusions that dark bit had 1 percent
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poultry by-product meal in it?
A. Now, part of that would be what I was finding
in the dark bits was consistency from one sample that
contained dark bits to the next. And in those that
had somewhat of a little bit higher percentage, we
were able -- I was able to see one of the markers.
In those that contained 1 or 2 percent, the
presence of bone was an indication of poultry meal.
I may not have seen a marker in those, but if you
will assume, based on consistency across samples,
that it was probably also poultry by-product meal.
Q. So how do you get to 1 percent?
A. Often it's -- you know, often it's a process
of elimination. Everything else totaled 98 percent,
and there is a little bit left over, and it's
probably poultry meal or poultry by-product meal.
We don't always identify a particular
ingredient as a specific percentage in the whole. In
other words, I may be able to identify six of the
seven ingredients and have it total 94 percent, and
then indicate that there is something else that's
there that I'm not -- that I think is this product,
but I'm going to estimate, based on what's remaining,
it's about 6 percent.
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Remember, these are estimated percentages.
Q. So are your percentages of poultry by-product
meal in the bits based on -A. The amount of bone, chicken bone we would see,
poultry bone that we would see, and that it wasn't
anything else that looked -- it didn't -- nothing -I mean, it looked more like poultry meal as opposed
to anything else.
Q. So, let me just finish my question, if I may,
and then you can answer it.
A. Sure.
Q. When -- the percentages you have provided for
poultry by-product meal in the dark bits, are those
based on calculating how much poultry by-product meal
is there, or are those based on calculating what else
is there and then seeing how much percentage is left
over?
A. Both, in some cases. Again, looking for the
percentage of bone that was present, poultry bone,
and then performing a calculation based on the fact
that typically we are going to see about 16 percent
bone in a poultry by-product meal, we can then
estimate approximately how much bone would -- or how
much poultry meal or poultry by-product meal would be
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present.
Q. Well, are you using the presence of poultry
bone as a marker of by-product meal?
A. In very small amounts, yes. And, again, that
was based on consistency across samples, wherein some
of the samples that were very similar looking in all
of the other components, I was able to see a marker.
Q. Well, Dr. Makowski, when we talked this
morning and I asked you to identify all of the
markers you used for poultry by-product meal, you did
not list poultry bone.
A. Okay.
Q. So, can you help me understand why now you are
identifying a marker that you did not identify in
response to my series of questions -A. Because poultry -Q. -- this morning?
A. Poultry bone is also present in poultry meal.
Q. So for your identifications of poultry
by-product meal in the dark bits, what specifically
did you see that led you to conclude there was
poultry by-product meal in the dark bits?
A. Based on the percentage of bone, but comparing
it to like similar samples of dark bits where I did
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see markers.
Q. Was there anything else in the dark bits that
you saw, other than poultry bone, that led you to
conclude that they had poultry by-product meal in
them?
A. Not that I remember.
Q. So as you sit here today, your only basis for
identifying poultry by-product meal in any dark bit
was the presence of poultry bone; is that correct?
A. No. Only perhaps at that 1 to 2 percent
level. Those that were closer to 6, 7, 9 percent,
that was based on the presence of one of the markers.
Q. Okay. So let's go back to your table at
PUR 211.
A. Okay.
Q. All right. Let me ask you to take my blue
pen, which I'm handing you now, and can you circle
all of the identifications of poultry by-product meal
that are based only on the presence of poultry bone.
A. Oh. I'm sorry. I did the wrong one.
Q. Have you done it, sir?
A. I did.
Q. May I have that copy for a moment?
A. Uh-huh.
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Q. Okay. So you have circled all of the
identifications of 2 or 1 percent; is that correct?
A. That's correct.
Q. There is also an identification of 3 percent.
You have not circled that one.
A. I probably just missed that one in circling.
You may circle that one.
Q. Why don't you do it, so we don't have any
ambiguity.
Thank you.
A. Make sure I didn't miss any others.
Q. Sure.
A. Okay.
Q. Did poultry bone play a role in your analysis
of by-product meal in any of the kibble?
A. No.
Q. Now, so 11 of the samples in which you
identified poultry by-product meal in a dark bit was
based solely on the presence of poultry bone,
correct?
A. In comparison to those dark bits that had
poultry by-product meal in larger amounts.
Q. Now, Dr. Makowski, let's talk about this.
A. Okay.
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Q. Given that poultry bone exists in both poultry
meal and poultry by-product meal, what was your basis
for saying that, well, this bit, since I'm seeing
bone, must be by-product meal rather than chicken
meal?
A. Again, when I looked at some of the other bits
that had 9 percent and did have markers, the rest of
these dark bits were so similar in their composition,
that I thought this was also then poultry by-product
meal.
Q. And did you do any statistical analysis of
bone quantification in -- of the presence of bone in
by-product meal versus chicken meal?
A. No. We just use a number that for microscopy
is considered to be a standard number.
Q. And what is that number?
A. About 16 percent.
Q. Is that in by-product meal or is that in
chicken meal?
A. It tends to be somewhat similar in both.
Again, for a rough estimate, 16 percent is an
accurate -- or is fairly decent to use.
Q. So, Dr. Makowski, if poultry by-product meal
and poultry meal both have bone in about the same
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amount, then what's the basis for saying that these
products contain poultry by-product meal rather than
poultry meal?
A. Because in the other samples that were similar
in their composition, I was able to see markers to
identify them as poultry by-product meal. Since
these other ones at the lower percentages appeared to
be very, very similar in their makeup, I assumed it
was also poultry by-product meal.
Q. But they didn't have any of the markers of
A. I wasn't able to observe any of the markers.
Q. So, if you don't see a marker, doesn't that
mean it's not poultry by-product meal?
A. Again, in such a low quantity, what I said
was, I compared it to those others that were so
similar, that it would appear this should also be
Q. Dr. Makowski, I'm no scientist, but I have no
idea what the basis is for this, from what you just
said, of identifying poultry by-product meal. So let
me break it down and ask you to help me understand
it.
A. Okay.
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Q. As I understand what you have said, poultry
by-product meal and poultry meal both contain bone -A. Some bone, uh-huh.
Q. -- at 16 percent, approximately.
A. Whatever, uh-huh.
Q. Right?
Now, let's just take one sample. Let's take
"Basics-Adult Turkey & Potato (Cat)." Here. I'll
let you have it. If that helps, you can look at it.
A. Which one is this one?
Q. It's the second from the bottom.
A. Okay.
Q. And you will see that in the dark bits, you
identified 2 percent poultry by-product meal,
correct?
A. Uh-huh. Uh-huh.
A. Yes. Yes.
Q. And you made that identification based only on
the presence of an ingredient, bone, that you admit
is present in the same amounts in poultry meal,
correct?
A. Yes. And there may have been feather also.
But, again, feather is in both.
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Q. Well, Dr. Makowski, all of the testimony you
gave so far has been that you were basing these
identifications, in fact you circled them, because
they were based on bone; is that correct?
A. I'm trying to remember back to when this
actually occurred.
Q. As you sit here today, you don't remember
specifically any feather in any of these products, do
you?
A. I don't remember that there wasn't any feather
either.
Q. Now, can we agree that your observation on
"Basics-Adult Turkey & Potato (Cat)" were just as
consistent with poultry meal as they were with
poultry by-product meal?
A. Yes.
Q. So, therefore, based on your microscopy, you
are unable to say whether or not this sample
contained by-product meal versus poultry meal at a
2 percent inclusion rate; isn't that correct?
A. That's correct.
Q. And yet you called it by-product meal.
A. Uh-huh.
Q. Why did you do that?
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A. As I explained previously, in the rest of the
samples that had dark bits, when we had 9 to
11 percent, I was able to see the markers. These
other samples of dark bits appeared to me, both
stereoscopically, morphologically, and then after
examining under the microscope, very, very similar to
one another. And so I made the extrapolation that
this poultry meal was also poultry by-product meal.
Q. So are you saying that basically because it
was a Blue Buffalo product, just like the other ones
where you saw by-product meal, you concluded it had
by-product meal?
A. No. Because, again, at the time I was not -I didn't know what I was looking for. I said because
the dark bits were similar to other dark bits where I
did identify poultry by-product meal, I assumed that
this was also poultry by-product meal.
Q. So you assumed that all the dark bits must
have it, since some of them have it?
A. I assumed that they were so similar in their
composition, that this must carry through, yes.
Q. So, you assumed the presence of poultry
by-product meal.
A. In these lesser amounts, yes. Only in those
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that were 1 to 2 to 3 percent.
Q. Dr. Makowski, where in this report do you
disclose that your identification of poultry
by-product meal in the dark bits is an assumption?
A. It's not disclosed anywhere.
Q. And what -A. It's based on my understanding and having
looked at all of these samples.
Q. Let's talk about the samples that you have not
circled -A. Okay.
Q. -- as to the dark bits.
A. Uh-huh.
Q. You have not circled four identifications; is
that correct? And there is the top two rows,
"Wilderness-Adult Chicken Recipe (Dog)" -THE REPORTER: Sorry. "And there is the
top row" -BY MR. MANGI:
Q. Top two rows. One is "Wilderness-Adult
Chicken Recipe (Dog)," and the other is
"Wilderness-Adult Chicken Recipe (Cat)." Correct?
A. Correct.
Q. And in those particular samples, in the dark
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bits you identified 9 and 11 percent for the dog
recipe and 8 and 5 percent for the cat recipe.
A. That's correct.
Q. Now, what did you see in those four samples in
the dark bits that led you to conclude they included
by-product meal?
A. Feather and leg scale -- or fragments of leg
scales.
Q. And do you remember how many feathers you
saw in -A. I do not.
Q. -- either of them?
And as we've talked about earlier today,
feathers can be present in both poultry meal and
A. Correct.
Q. Do you remember how many of the four samples
had feathers in them?
THE REPORTER: Sorry.
(Discussion off the record.)
BY MR. MANGI:
Q. Do you recall in how many of those four
samples you saw feathers?
A. I can't recall now.
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Q. Do you recall in how many of those four
samples you saw leg scale?
A. I can't recall now.
Q. Is it possible you saw only feather in all of
them?
A. No.
Q. Do you recall distinctly seeing a leg scale in
at least one of them?
A. Yes. Leg scale is the basis, again, for that
poultry meal designation.
Q. And feather meal is -- well, withdraw that.
You don't recall, as you sit here today, that
leg scale was the basis for these four particular
determinations, do you, sir?
A. Not particularly, no.
Q. And you've already testified that feathers can
be present in poultry meal just as they can in
A. I have seen feathers in both, yes.
Q. You talked about having done some chemical
tests as part of your analysis.
A. Uh-huh.
Q. What did you analyze on a chemical level?
A. I don't know that we analyzed anything
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chemically for this report, other than if there was a
trace of calcium carbonate, we did the salt test.
Well, pH, using pH paper, but that's not really a
chemical test. I mean, it is a chemical reaction,
but it's not a -- where I am using reagents
necessarily.
Q. Anything else?
A. No.
Q. Dr. Makowski, with regard to your
identification in the bits, isn't it possible you
were not identifying either poultry or -- poultry
meal or poultry by-product meal, but were instead
seeing something else?
A. I saw poultry bone present, so I'm not sure
what the other something else might be.
Q. Do you think it might have been a different
type of bone?
A. No.
Q. Do you think it might have been any other
substance?
A. No. It's poultry bone.
Q. Are there any other possible identification
traps with regard to poultry bone?
A. The only other possibility could have been
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meat and bone meal, but I think that there was enough
identification in the bone to say that it was poultry
bone.
Q. Did you conduct any tests to confirm the
animal origin of anything you saw in the dark bits?
A. No.
Q. But such testing does exist, you just didn't
do it, correct?
A. I'm not sure what testing exists to do that.
Q. Well, you could do genetic testing, for
example.
A. You could. We are not equipped to do that
type of testing.
Q. If you had done such testing, would it have
identified definitively whether or not the products
you saw were of animal origin?
A. I think it probably would have.
Q. Is there a margin of error that you use in
relation to your visual identifications?
A. Somewhere around 10 percent, plus or minus
10 percent, typically.
Q. And how do you come by that number?
A. Just, again, after 28 years, that's where it
seems to fall. No statistical analysis.
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Q. Got it.
So, in other words, whatever your result is,
let's say you are saying 40 percent of ingredient X,
the actual inclusion rate may be plus or minus
10 percent of that?
A. Plus or minus four, yeah.
Q. I'm sorry.
A. Which would be 10 percent of 40.
Q. You'll have to explain that one to me.
A. Well, that would be 36 to 44, would be the
range if it was a plus or minus 10 percent.
Q. Oh, I see. You are saying you go above and
below, basically.
Okay. So if you have an identification of a
product at an inclusion rate of less than 10 percent,
is it fair to say that that is within the margin of
error?
A. No. Something at that level would be plus or
minus 1 percent.
Q. Well, when is it 1 percent and when is it
10 percent?
A. Ten percent and below would be plus or minus
1 percent. When we start to get up into values in
the 40s and 50s or so, it is plus or minus
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10 percent.
Q. So, is there a scale that I can look at to see
what is the margin of error and confidence marker for
any particular microscopic analysis you have done?
A. No, because it depends on the individual
microscopist who's performing the analysis.
Q. So there's no way of knowing whether it's
10 percent or 15 percent or 20 percent or 90 percent?
A. No.
MR. MANGI: Let's take a quick break.
BY MR. MANGI:
Q. Dr. Makowski, have you ever considered the use
of image recognition software as part of your process
of making identifications?
A. No, I have not. I didn't know if it existed
for grain samples in a mixed sample.
Q. You are aware that image recognition software
is widely used in microscopy today?
A. In certain forms of microscopy, yes.
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Q. And you are aware that it's not even that
expensive anymore, it's actually quite reasonable?
A. I'm not aware of that. I'm sorry. I'm not
aware of that.
Q. Have you ever explored the potential use of
image recognition and accuracy software in connection
with your work?
A. No.
Q. Now, let's talk more about your reference
library. How many ingredients are in your reference
library?
A. I have never counted them completely. I would
estimate somewhere between 90 and a hundred.
Q. How do you -- how did you obtain your
reference library?
A. My initial reference library came from my
participation in some early short courses,
concentrated, microscopy short courses where we
obtained raw ingredients from manufacturers and
labeled those as to what they were, and then placed
them into a library that we -- that I have and that
we would also give to individuals who participated in
that course.
Additional samples are as someone may send a
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sample to me for a purity study, and if I can
ascertain that it's pure, I will keep that as a
reference sample.
Q. In regard to the check sample program you were
just talking about -A. Yes.
Q. -- did I understand what you just said to be
that you allow people participating in that to use
your reference standards?
A. No. I said what we did was, anyone who has
attended one of our microscopy short courses is given
a reference library to take home with them.
Q. So, let me clarify. I'm asking about your own
individual reference library.
A. Yes.
Q. And I'm trying to understand where it came
from. So, can you explain that to me?
A. Again, a variety of sources. Some of my
original reference library samples have come as being
a part of those short courses.
Q. Now, let me stop you there. How does being
part of a short course get you a reference sample?
As an attendee?
A. As an attendee or as an instructor.
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Q. Now, are you able to trace the provenance of
each item in your reference library?
A. No.
Q. Is it fair to say, sir, that the accuracy of
your identifications are largely dependent on the
accuracy and integrity of your reference library?
A. Not completely.
Q. Well, you say that because it is partly
dependent on your own expertise?
A. Correct.
Q. But typically, in terms of the methodology
described in your manual, it is, to quote from your
manual, "comparing each particle to a reference
library of known ingredients." That's the basic
discipline you describe.
A. Yes. We can also compare it to photographs of
those same ingredients.
Q. And with regard to your own samples, do you
know, for example, what the provenance and origins
are of your chicken meal or poultry meal standards?
A. I do not.
Q. By the way, is it a chicken meal standard or a
poultry meal standard?
A. It was labeled as poultry meal.
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Q. Do you know where it came from?
A. I do not.
Q. How long have you had it?
A. Ten or 15 years.
Q. How about your poultry by-product meal sample?
A. Same amount of time. It was in the same
reference library.
Q. Do you know where it came from?
A. I do not.
Q. Have you been using the same reference
standard for 15 years?
A. I have.
Q. And so, explain to me how you use it.
A. If I am examining particles under the
microscope and I observe something that I am unsure
of, I will go to the reference library, I'll pull out
the two or three things that I suspect it could be,
I'll place them on the microscope next to the
particles in question and look for similarities in
size, color, texture, those types of things.
In addition, I may also take one of those
particles each and place them in the compound
microscope and look for cellular similarities.
Q. When you are looking under the stereo
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microscope, is there is a board or some surface on
which you are placing these materials?
A. There is.
Q. What do you call that?
A. The examination board.
Q. So on the examination board, you will place
whatever it is you are trying to identify, and then
next to it you'll put some of your reference
standard; is that correct?
A. That's correct.
Q. And if they are both powders, you'll have a
bit of powder to the left of your board and a bit of
powder to the right of your board; is that correct?
A. Well, they'll be next to each other on some
portion of the board.
Q. So they will be close to each other on -A. Yes.
Q. -- the board?
A. And one of the things that it's important to
do is, when the powder is placed on the board, to do
so, so that the particles form a single layer, as
opposed to a mound, so that we can look at individual
particles.
Q. And after you've done your analysis with the
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microscope, what do you do with the reference
standard material that you have taken out for
examination?
A. In some cases, if there hasn't been
cross-contamination, it's placed back into the
reference library.
Q. And what steps do you take to test whether or
not there has been any cross-contamination?
A. Visual examination. The other thing is to
make sure that they haven't come in contact with each
other. That's why we place one in one position on
the board and the other on the other position on the
board and then move back and forth when examining
them.
Q. Is there a divider between them?
A. No.
Q. And we are talking about -A. Particles.
Q. -- particles, right?
It's possible, isn't it, that a particle, by
gravity or breeze, or for whatever reason, one
particle might blow across from one side of the board
to the other?
A. It would be highly unusual.
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Q. You can't exclude that possibility when you
are talking about microscopic particles, can you?
A. I'd be 99 percent sure that it didn't occur.
Q. Where do you get that statistic?
A. By looking at it under the microscope and
seeing that it still appears to be pure.
Q. Do you do that after every test?
A. I do.
Q. So, as you sit here today, are you a hundred
percent certain that none of your reference standards
are contaminated in any way?
A. Oh, no, no. Some of the reference samples -reference standards are indeed contaminated. And
it's my expertise in microscopy that's actually
helped to identify some of the contaminations that
are present.
Q. To be clear, I'm not talking about
contamination that may have been in an original
sample. I'm talking about contamination that
occurred through your use of the samples.
A. Oh. I'm not -- I don't think any of them have
been contaminated.
Q. So, as you sit here today, are you a hundred
percent confident that none of your reference library
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is contaminated?
A. I'm highly confident that it's not.
Q. Same level as to which you're confident about
the conclusions that you've made in your report?
A. I'm just highly confident that there hasn't
been any contamination.
Q. Are you highly confident of those conclusions
too?
A. I am.
Q. Do you think -- is there a scientific
standard, methodological standard, associated with
the question of whether or not it is appropriate to
reuse reference standard materials after you've
examined them, put them on a board with something
else, and to just pour them back into the vial?
A. Not that I'm aware of.
Q. But you check your reference standards after
every use, before putting them back in the vial, to
make sure they haven't been contaminated?
A. Yes.
Q. That's your standard practice?
A. Yes.
Q. You've never deviated from that practice?
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Q. Are your reference standards identified by a
labeling convention of any kind?
A. Simply the name of the ingredient.
Q. Is there a number on them as well?
A. In some cases I have a number on the cap, if
it's in a vial, and then that corresponds to a grid
that simply has the numbering. Okay. And then there
will be a grid that also indicates Sample No. 1 is
this, Sample No. 2 is this. That's on the cap. But
on the vial itself, there'll be the name.
So that if I wanted to quickly find something,
I lift the lid, look at the reference and say, okay,
I'm looking for poultry by-product meal. That's
No. 56. So I look in my sample box, I pull out 56, I
check the side, it's poultry by-product meal, then
I'm ready to go.
Q. Now, you made your -- certain elements of your
reference library available for inspection; is that
correct?
A. I did.
Q. And one of them was your flaxseed reference -A. Yes.
Q. -- correct?
A. Oh, was it? I'm not even sure what I gave at
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this point.
Q. Well, you -- I'm sorry, go ahead.
A. No. Go ahead.
Q. You produced a vial that contained flaxseed,
but in fact had no identifiers on it. Are you aware
of that?
A. No.
Q. Do you have any vials that don't have any
labeling on them?
A. I thought all of them had labeling on them, if
not on the side, certainly on the cap.
Q. Is it possible that the fact of an unlabeled
sample in your reference library may have contributed
to issues with your identifications of flaxseed?
A. Oh, no. I don't think so. Flaxseed is very
easy to identify. It's also referred to as linseed.
Q. It's rubbed on cricket bats, is it not?
A. Perhaps.
Q. Now, can we agree that your analyses would be
rendered unreliable if the reference standards you
used were not what they purported to be?
A. No.
Q. So if your entire reference library was wrong,
nothing was what it purported to be, would that have
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any impact on your conclusions?
A. It could on those samples that I'm not sure of
what they might be. I would certainly hope that the
entire reference sample is not contaminated or
mislabeled in any way.
Q. What's a problem sample?
A. A problem sample? I'm not really sure.
Q. I'm going to show you another exhibit.
Identification.)
BY MR. MANGI:
Q. I'm going to hand you what's been marked as
Exhibit 19. Do you recall earlier today I told you
that there was one Inform article that we had been
able to find?
A. Uh-huh.
Q. This is indeed that one.
A. Uh-huh.
Q. And you'll see this is from November of 1998.
A. Uh-huh.
Q. Do you see that?
A. Yes.
Q. Let me ask you to turn to the page with the
Bates number PUR 656.
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A. Uh-huh.
Q. And by the way, for context, this is an
article that you wrote for Inform, correct?
A. It is.
Q. And on the top right hand of 656, in the
column on the far right, you say, "This sample
library should contain as many different ingredients
and problem samples as possible."
A. Hmm.
Q. Can you help me understand what -A. Okay.
Q. -- you meant?
A. I think in that particular case, it could be a
sample that is a mixed feed that's been identified as
to the constituent parts. Or in some cases, some
reference samples, if it's available, we may make up
a combination of something like corn and soybean in
known quantities, so that when you have a sample, a
feed sample that contains both corn and soybean, if
you begin to take a look at what 10 percent corn
looks like, 20 percent, 30 percent, 40 percent, as
you begin to look at a mixed feed sample, it helps in
your estimation of, is that 20 percent corn,
10 percent corn, what have you.
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Q. So, would a mixed feed sample be, for example,
something that has a mix of poultry meal and poultry
by-product meal; is that what you're calling a mixed
sample?
A. No. No, no, no, no. I'm talking about more
grain types of things. Not meal, not poultry meals
or poultry by-product meals or fish meals.
Q. Help me understand. Why is it that a mix of
meals is not a problem sample, but a mix of grains is
a problem sample?
A. I can't tell you why it's that way. It's just
the way that it has been done since the beginning of
microscopy -- feed microscopy.
Q. What's been done?
A. The types of problem samples that are used.
Q. I'm a little perplexed, Dr. Makowski, because
a moment ago you didn't know what a problem sample
was, and now you are testifying about what problem
samples have meant since the dawn of microscopy. Can
you help me understand that apparent-A. I had a look at -Q. -- apparent contradiction?
A. I had to look at it in the context of the
article, and now I understand within that context
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what it is that we are talking about. Today I
wouldn't necessarily call it a problem sample.
Q. All right.
A. And I'm not even sure at this point what was
actually meant by a problem sample, unless these are
samples that are difficult or are problem-inducing
for individuals.
Q. All right. Dr. Makowski, let me show you now
an image that I'm marking as Exhibit 20 to your
deposition.
Identification.)
BY MR. MANGI:
Q. Dr. Makowski, what is Exhibit 20?
A. I'm not very good at telling from this
particular picture. I would like to be able to
examine this under the microscope, my own microscope,
to bring it into better focus and better lighting, to
determine what it is.
Q. Do you think the focus and lighting is
deficient in this picture?
A. For me, it is. There's a lot of cellular
structure that's blurred in this. I think maybe you
can see some striations that exist. There are some
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dark areas that could possibly be what we refer to as
twin cells. But, again, it is very difficult to see
because it is not in focus.
The difficulty with thick particles is that
under the compound microscope, we can only see one
plane of focus at a time. So at any one time, you
are only looking at one small cross-section of the
particle.
Q. Looking at this picture, are you able to
assess what this is?
A. Not with a hundred percent confidence. In
fact, I'm not even sure I can do it with 50 percent
confidence. I'm just not really sure by looking at
it.
Q. Do you think this is plant tissue?
A. I really can't tell.
Q. Can you tell at a high level whether it's
plant in origin versus, you know, chicken meal or
animal in origin?
A. Not from this photo, no.
Q. You have no idea based on this photo?
A. No.
Q. Would it surprise you, Dr. Makowski, if there
were plant fibers in, or plant tissue in your poultry
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meal sample?
A. Not at all.
Q. Why not?
A. Because poultry meal and chicken meal contain
the stomach contents of chickens, and chickens eat
plants, and therefore, plants are part of the
processing, and they end up in your poultry meal and
Q. Do chickens eat blue jeans?
A. Sometimes they do.
Q. Would it surprise you if there were blue jean
or cotton fibers in your poultry meal sample?
A. I would find it to be a little unusual, but
not -- doesn't mean it is out of the realm of
possibility.
Q. Have you ever spotted such things in your
poultry meal sample?
A. Not that I remember.
Q. Here is Exhibit 21 to your deposition.
Identification.)
BY MR. MANGI:
Q. What's that, Dr. Makowski?
A. It's a fiber of some sort.
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Q. A cotton fiber, isn't it?
A. Could be.
Q. And does it surprise you to find a cotton or
denim fiber in your poultry meal sample?
A. It's not a part of the poultry meal. It
probably has something to do with whoever was
processing it, and it got in there by hook or by
crook, whatever.
Q. Do these suggest there may be contamination of
your samples too?
A. Not necessarily. Not contamination of the
ingredient itself. It might be some, again, just,
you know -- not -- not -- I don't even want to -- I
don't know if I want to use the -- it's an incidental
exposure to something that managed to get in there.
Q. How does it get in there?
A. Oh, that's a good question. I wish I knew.
Q. You said one possibility is that a chicken
might eat something?
A. Sometimes they'll peck.
Q. And then that ends up in its stomach, and -A. That's a possibility. It could be the person
that was actually shoveling the chicken meal got a
little bit of their fiber mixed in with that. That's
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a possibility.
Q. Chickens eat corn, don't they?
A. It's one of the things they eat.
Q. And so, is it possible that in poultry meal,
you would see traces of corn?
A. I suppose it is possible.
Q. So, when you have identified corn at an
inclusion rate of 0.2 percent in a particular sample,
is it possible that's how that corn got in there?
Chicken ate some corn, in its stomach, and that's how
it winds up in poultry meal?
A. If it was 0.2 percent corn in a sample that
contained 25 percent or more poultry by-product meal,
I would be willing to say that that's a possibility,
if we are looking at something where there might be
1 percent or 2 percent poultry by-product meal, no.
The odds of it having a single piece of corn
from the stomach contents of an animal at that very
small percentage is highly unlikely. Statistically,
it would be highly unlikely.
Q. Have you done any statistical analysis?
A. I have not.
Q. Now, how is it, Dr. Makowski, that when we are
looking at your sample, you are very willing to
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imagine and conjure all kinds of innocent
explanations for why plant tissue or cotton or denim
may be in the samples, but you appear more hesitant
to concede innocent explanations for finding other
products in Blue Buffalo samples?
the lack of foundation as to where these photographs
came from and whose samples they are.
BY MR. MANGI:
Q. Go ahead.
A. Could you be more specific as to the
allegation?
Q. Let me give you Exhibit 22.
A. Uh-huh.
Identification.)
BY MR. MANGI:
Q. What, Dr. Makowski, is Exhibit 22?
A. It could be another fiber of some sort. It's
not in very good focus again. If the outer edges
were a little more in focus, I could try to determine
if it was a hair of some sort, but they're not, so
it's difficult to tell.
I don't see any medullary structures
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internally, so it is difficult to see if it would be
a hair. It seems to be somewhat birefringent, so
there's a good possibility that it's some type of
cellulose product, but, again, that's about as far as
I can go.
Q. Do you think it's possible, Dr. Makowski, that
another microscopist might look at this and conclude
it is in fact a white human hair?
A. It's possible.
Q. And would it surprise you, Dr. Makowski, if a
white human hair were found in your poultry meal
standard?
A. It would surprise me, yes -- well, no, it
wouldn't surprise me, because I don't know who has
been handling it previously.
Q. You don't know who has been handling your
reference standards?
A. Previous to their being part of the reference
standards.
Q. Previous to your acquiring them?
A. Yes.
Q. So you have no idea what's in any of these
standards because you don't know where they came
from; is that your testimony?
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A. I'm testifying that I don't know where this
hair -- if it does indeed exist in the poultry meal
or poultry by-product meal sample, I can't determine
its origin.
Q. And in fact, your hair is white, isn't it,
Dr. Makowski?
A. It is.
Q. And are you, as you sit here today, able to
categorically exclude the possibility that this is
your hair?
A. No, I couldn't.
Q. And it's possible, isn't it, that you may have
gotten some hair -- of your own hair in your
reference standard for poultry meal?
A. It's unusual that that would have happened,
because, again, I'm looking at various small amounts.
I think I would have noticed a hair of my own in
there, at least I think I would.
Q. Could be a very small hair fragment, right?
A. Could be.
Q. Sometimes things look bigger under the
microscope?
A. Uh-huh. Always.
Q. Do you have a chicken meal standard?
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A. Just poultry meal.
Q. Do you have a turkey meal standard?
A. Just poultry meal.
Q. Why don't you have separate standards for
chicken meal and turkey meal?
A. I have never obtained a chicken meal or a
turkey meal standard.
Q. Would they be useful for your work?
A. Not necessarily.
Q. Do you think they would help you firm up some
of those identifications you had as chicken/turkey
meal?
A. There's a some- -- somewhat possibility, but I
wouldn't know without looking at an actual pure
sample of turkey meal and chicken meal.
Q. Now, you know that there are different types
of poultry meal, don't you?
A. Yes.
Q. Poultry meal can be manufactured to different
standards?
A. I would imagine it could be. I don't know
that for certain.
Q. Purchasers typically have their own
specifications for poultry meal?
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form of the question. Now it's really calling for
speculation, and lacking foundation.
BY MR. MANGI:
Q. Do you know that purchasers can spec- -- can
provide specifications for the poultry meal they're
purchasing?
A. I'm not familiar with that.
Q. Do you know that there are high-ash, low-ash,
medium-ash variations on poultry meal?
A. I have heard the terms high, medium and low
ash, but usually in reference to fish meal samples.
Q. Do you know what specifications were used for
the poultry meal that constitutes your reference
standard?
A. I do not.
Q. Do you know what specifications were used for
the poultry by-product meal that constitutes your
standard?
A. I do not.
Q. Have you taken any steps to insure that your
poultry meal sample is representative of the poultry
meal that is sold in the market today?
A. No, I haven't.
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Q. Have you taken any steps to insure your
poultry by-product meal standards are representative
of the by-product meal that's sold in the market
today?
A. I have not.
Q. You are aware that there have been changes in
manufacturing practices over the last 15 years in the
rendering industry?
A. I'm not aware of what happens in the rendering
industry.
Q. Do you think it's possible your samples may be
out of date and not reflecting current manufacturing
practices?
A. I can't speak to that. I don't know.
Q. They are at least 15 years old, correct?
A. Probably. Some of them are, yes.
Q. Poultry meal and by-product meal are, correct?
A. Perhaps.
Q. What steps have you taken to preserve these
reference standards? After all, this is biological
material.
A. Uh-huh. In some cases they are refrigerated.
Depending upon what it is, a lot of the meals are
refrigerated. But they are kept in vials that are
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tightly sealed, kept within cardboard. Some are
refrigerated. Some are placed then in another
container that's sealed as well.
Q. Are your chicken meal and poultry by-product
meal standards refrigerated?
A. No. No.
Q. So, Dr. Makowski, if I were to take chicken
meal or poultry by-product meal and leave it sitting
out for 15 years, would any changes occur in the
visual appearance of those reference standards?
A. It might if it was just sitting out, but if it
was enclosed in a small vial with very little air,
humidity, those types of things, I would say not as
much or not at all.
Q. But you do in fact take it out periodically
when you are using it as a reference standard,
correct?
A. Occasionally, yes.
Q. So, in fact, your reference standards are
exposed to air on a periodic basis.
A. But not sitting out, as you might indicate,
for days, weeks, months at a time.
Q. Do you think, Dr. Makowski, that a biological
material might alter in its physical appearance under
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a microscope over the course of 15 years?
A. I haven't found that to be the case.
Q. And have you compared new by-product meal or
new poultry meal to your aged reference standards?
A. I have not.
Q. So you have no basis for knowing whether aging
would impact it one way or the other, correct?
A. That's correct. However, the reference
samples do look similar to what I see in finished
products. There is not enough of a discrepancy for
me to rule out that it would be poultry by-product
meal or poultry meal.
Q. Now, when you take something like poultry meal
and put it through a manufacturing process, does it
look any different in a finished product from how it
would look when it was just fresh from the
manufacturer?
A. Yes.
Q. And your reference standards are fresh from
the manufacturer; is that correct?
A. They are pre-processing, yes.
Q. Okay. Dr. Makowski, let me hand you
Exhibit 23.
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Identification.)
BY MR. MANGI:
Q. What is in Exhibit 23, Dr. Makowski?
A. It looks like a feather.
Q. And this feather, Dr. Makowski, does not look
anything like the photo that you provided in an
appendix to your report. Can we agree on that?
A. We can agree on that.
Q. Okay. Let me show you the next one.
A. Although they do look similar. It's a
different magnification. It's a better lighting.
But we can also see the particles that are attached
that are probably part of the kibble that's been
ground, or part of the rest of the meal that is
present. So those are similar in their attributes.
Q. Let me show you what I'm marking as Exhibit 24
to your deposition.
Identification.)
BY MR. MANGI:
Q. What is Exhibit 24, Dr. Makowski?
A. I have absolutely no idea by looking at this.
It looks like it could be some type of a grain
product that's been crushed, but I have no idea from
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this picture.
Q. Dr. Makowski, Exhibit 25 to your deposition is
the next one I'm handing you.
Identification.)
BY MR. MANGI:
A. It's some type of a meal. And from this
picture, it's a little blurry, but there's a -- I
really can't tell whether that's leg scale or whether
that's a piece of grain. Again, I'm getting too much
reflected light on it and not enough light passing
through to determine whether it's completely opaque,
semi-opaque or transparent.
Q. And when you -- what you are referring to, is
that the white -A. The large -Q. -- section that appears in the middle of the
page?
A. The large white object, yes.
Q. And would you mind holding that up for the
camera and pointing to what you are identifying?
A. (Witness complying).
Q. Thank you.
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THE VIDEOGRAPHER: Hold on a second. Can
you hold it there.
BY MR. MANGI:
Q. Can you do it again, please.
A. (Witness complying.)
THE VIDEOGRAPHER: Okay.
BY MR. MANGI:
Q. And I'm sorry, Dr. Makowski, I lost my train
of thought. What were you saying that you think that
white particle may be?
A. I said I'm not sure what it might be, because
I can't determine based on the morphology of it.
It's irregular, it's amorphous. But it is -- it
could be -- based on reflected light, it could either
be opaque, semi-opaque or transparent. And it's just
too difficult to tell from the picture itself.
Q. And what are some of the possibilities as to
what that might be?
A. There is a possibility it could be -- it could
be a leg scale. There is a possibility it could
be -- it could actually be a piece of grain of some
sort, because I -- again, I don't have enough
definition here to be able to say it would be one
thing or another.
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I don't think it would be a toe pad. I don't
think it would be beak or claw, because it is not -not formed enough, not shaped properly.
Beyond that, I wouldn't be able to conjecture.
Q. Any other possibilities of what you think it
might be?
A. I really would like to look at it under the
microscope and to be able to focus and change
contrast and to manipulate it a little bit. Part of
microscopy is not simply taking one shot and then
trying to identify something. It really requires
much, much more detailed work, particularly under the
Q. Do you think it might be an egg shell?
A. It's a possibility, but, again, I can't tell,
because we are looking only at the flat edge of it,
not on the side.
Q. That's not something that came to mind,
though, in your initial list of possibilities?
A. It could be. I don't know.
Q. I'll show you Exhibit 26.
A. Uh-huh.
Identification.)
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BY MR. MANGI:
Q. What is Exhibit 26, Dr. Makowski?
A. Again, not enough definition. Color and
contrast is absolutely terrible. I really don't
know. I see air bubbles. They are the nice dark
circles with the light centers to them. There are
three or four on this.
Everything else is just amorphous and
transparent. There are some small particles that are
running along the side that look like they could
possibly be barbules, but it is very difficult to
tell, again, from this depth of field, from this
focus.
Q. By "barbules," you are referring to a feather?
A. Yes.
Q. Okay. I'm going to show you Exhibit 27 to
your deposition.
A. Okay.
Identification.)
BY MR. MANGI:
A. These are the reference samples that I
provided.
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Q. Did you prepare this list yourself?
A. I did.
Q. Now, why did you provide that little starred
entry at the bottom there?
A. Counsel had asked to provide these in addition
to the ones that were provided, but I didn't have a
good sample of blood meal or ground rice.
Q. Now, did you provide any samples that are not
on this list?
A. Not to my knowledge. Not that I remember.
Q. Did you provide dicalcium phosphate as one of
your reference standards?
A. I don't remember. I don't think I did, but I
don't remember. I would have to go back and look at
the packet that I still have with those samples in
there.
Q. Do you have a reference standard for dicalcium
phosphate?
A. I do.
Q. Did you -- I'm sorry.
As you sit here today, can you identify for me
the provenance and history of any of the reference
standards that are on this list?
A. I can identify the -- for the pea fiber.
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Q. Where did you get your pea fiber?
A. I think it was from Principle Solutions.
Q. When did you get the pea fiber?
A. Sometime in the first quater of this year.
Q. Any others?
A. No, I can't.
Q. So, is it fair to say that -A. Pea fiber is an unusual one that I hadn't seen
previously, so I remember getting that.
Q. Why did you get it?
A. This company sent it and asked for a purity
study to see if there were any contaminants or
adulterants, and then I kept the retained sample.
Q. It's not something you went out looking for.
A. No. No.
Q. It happened to come to you.
A. Uh-huh.
Q. Now, you did, in fact, identify in the course
of your study, and the report that's reflected as
Exhibit 1, a number of ingredients that are not part
of your reference library; is that correct?
A. It's a good possibility. I'm not sure.
Q. To the extent you had reference -A. Can you tell me which ones you think were not
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part of my reference collection?
Q. Sure. Feather, egg shell, leg scale, chicken
meal, turkey meal, chicken, fish, fat, starch,
vegetable pomace, blood meal -A. What was the previous one?
Q. Vegetable pomace.
A. Oh. Pomace?
Q. Pomace.
A. Yes. Okay.
Q. And many more.
A. Okay. Uh-huh.
Q. So there are in fact many ingredients that you
do not have reference standards for, correct?
A. I may have some of those. I would have to go
and check and see.
Q. Did you endeavor to produce for inspection all
of the reference standards that correlated to
ingredients that were identified in your report?
A. I endeavored to produce those which counsel
asked me to provide.
Q. And have you in fact done a comparison of your
reference library against all the ingredients
identified in your report?
A. No, I haven't.
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MR. MANGI: For the record, we will ask
that such a comparison be done, and any reference
standards in Dr. Makowski's library that were not
made available for inspection be identified.
BY MR. MANGI:
Q. Now, with regard to the comparisons that you
may have made to your reference standards as part of
this project, did you undertake any effort to
determine a confidence interval for an
identifications?
A. As to?
Q. As to your identifications.
A. As to the identity?
Q. Yes.
A. I'm not sure how a confidence interval
interplays with identification of a product.
Q. Is the answer no?
A. The answer would be no.
Q. And did you attempt to construct a confidence
interval in connection with your quantifications of
product?
A. Again, no.
Q. Now, do you recall using any reference
standards in connection with the compilation of your
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report other than those listed on Exhibit 27?
A. No.
Q. No?
A. No.
Q. So, to be clear, are you confident, as you sit
here today, that you did not utilize any reference
standards in connection with the work that you did in
this case other than the ones identified on
Exhibit 27?
A. Yes.
MR. MANGI: Let's take a break.
THE VIDEOGRAPHER: The time is now 5:17.
We are back on camera, and this is the beginning of
DVD No. 6.
BY MR. MANGI:
Q. Dr. Makowski, I would like to talk to you now
about your quantification methodologies.
A. Okay.
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Q. As I understand your testimony earlier today,
as you say in your report, one of the things you did
is, you visually estimated the percentage of each
particle in each fraction, looking through the
microscope?
A. Correct.
Q. And then you added up what you saw in each
fraction and calculated a total for the whole?
A. Correct.
Q. And as we described earlier, you testified
that you did that using a calculator, but did not
memorialize what you saw in each fraction?
A. Correct.
Q. And another quantification that you described
is where you calculated how much you had seen of
different ingredients and then you assessed how much
was left to get to a hundred percent?
A. Yes.
Q. Now, it's the second methodology I want to
understand a little bit better. Let's say that you
have looked at all of the ingredients you can
identify and it comes to 96 percent.
A. Okay.
Q. What do you do then with the remaining
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4 percent?
A. Well, again, we will never indicate a hundred
percent, so I will probably go somewhere about
98 percent to 99 percent, somewhere in that area. So
we are looking at about another 2 to 3 percent.
And, again, if there is an ingredient that I
have been able to identify but I have not estimated,
and it seems to be the only one remaining, then I
will indicate that that remaining 2 or 3 percent is
comprised of that ingredient.
Now, again, that's my initial, and then after
looking at all of the ingredients and how they match
up and what their percentages are in relation to one
another, I will go back and look at that sample on
the examination board to get, again, another visual
estimation, do I think that these numbers are -- you
know, are good.
Q. Is your goal to get to 98 percent, 99 percent,
99.5 percent? What is the number you're shooting at?
A. Anything between 98 and 99, somewhere between
those two.
Q. How do you decide which one you are going to
shoot for?
A. It just depends on what I'm able to see or not
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see, what it tallies out to be. I try to keep whole
numbers for most of the major ingredients, and then
when we get into, oh, the chloride determination, the
dicalcium phosphate, the calcium carbonate, those
types of things, which are gonna be sometimes less
than one. When we add those up, it might not always
come up to a whole number. So it could be something
like 98.4, 98.7. 98.6 is normal.
Q. Let's say you have done your analysis and
you've come to 97 percent with the ingredients you've
identified in a portion, but you have also seen
vegetable pomace in the product.
A. Okay.
Q. And so, you are at 97 percent with everything
you have apportioned, but there is vegetable pomace
you can identify too. What do you do then? How much
vegetable pomace do you attribute?
A. It would depend on how much I see.
Q. Okay. So -A. Are you asking if the only remaining
unidentified ingredient is vegetable pomace -Q. Correct.
A. -- whether that automatically indicates
3 percent?
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Q. So, would you then attribute 3 percent
vegetable pomace?
A. I might do that initially. But then again,
what I will do is look at the sample as a whole. And
vegetable pomace, for instance, since you chose that,
has a really nice golden color that stands right out,
which works for you and it works against you. For
you because it is easy to identify, it stands right
out. Secondly, because it stands out so much,
sometimes you may want to overestimate it.
And so I'll go back and take a look and again
say, does that look like 3 percent? Maybe it does.
Maybe I'm going to say it's more like 2 percent.
Maybe it's three-and-a-half percent or 4 percent.
Q. Now, Dr. Makowski, there are a number of
instances in which you have identified ingredients at
0.1 or 0.2 percent.
A. Uh-huh. Uh-huh. Uh-huh.
Q. Do you recall that?
A. Yes.
Q. And, for example, you've got in some instances
vegetable pomace at 0.1 percent; do you recall that?
A. That's correct.
Q. And in others, you have ground yellow corn at
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0.2 percent?
A. That's correct.
Q. How did you come to those rather precise
numbers?
A. Okay. Typically, if I find only two or three
particles in a fraction, that's going to represent
much less than 1 percent, somewhere in the
neighborhood of, let's say, between 1 and
5 percent -- .1 and .5 percent. And then, again,
simply looking at that fraction, based on my
experience, I try to estimate that.
I'm not always able to pick out each
ingredient and somehow weigh it and compare it to the
total to get something precise, because these things
are often impossible to lift out to do that. So,
again, it has to be based on a visual estimation.
Q. So let's try and understand that. Let me give
you a piece of paper. I'm going to mark it as
Exhibit 28.
Identification.)
BY MR. MANGI:
Q. It is a blank piece of paper on McNees
letterhead, which is the firm where we are sitting
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today. I will give you my blue pen as well. Do you
have one? Great. You can use your own pen.
Now, when you look through your microscope,
what shape is your field?
A. Round.
Q. Okay. So could you draw me a circle, please,
on that page.
A. Okay.
Q. Now, if you are visually seeing a particle at
.1 percent, what would you be seeing in that circle?
Would it be something akin to one pen dot or
something different?
A. The point that you are missing here is, what
I'm actually looking at is a fraction, which is
actually a square.
Q. Okay.
A. My field of view on the microscope may take
six fields of view to cover that entire square.
Q. Okay.
A. So, as I scan through there, again, I'm
estimating how many particles have I seen in that
fraction.
Q. So in the six squares you have drawn -- I'm
sorry -- the six circles you have drawn on that
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examination board, how much vegetable pomace would
you see -- let me take another example. How much
ground yellow corn would you see to then say, oh,
it's 0.2 percent overall?
A. Okay. Probably two to three to four
particles.
Q. So, why don't you represent those so we can
get a sense of what you do see.
A. There could be one here, there could be one
here, there could be one here. Again, it could be in
a variety of places.
Q. And based on those observations, how do you
conclude 0.2 percent as opposed to, say, 0.4 percent?
A. Again, the number of particles. Again, from
doing this for 28 years, you start to get a pretty
good idea of what .1 percent of something is versus
.5 versus 1 percent.
Q. And how many parts in a thousand is
.2 percent?
A. I think it would depend on the particle.
Q. No. I'm just asking you about math.
A. How many -- I'm sorry?
Q. How many parts of a thousand is 0.2 percent?
A. Twenty or so.
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Q. So 0.2 percent is 20 parts out of a thousand?
A. I think so.
Q. And that's sort of the visual observation you
do when you're looking at it to assess what is
0.2 percent?
A. In a sense. I'm not trying to count a
thousand particles and say, of a thousand particles,
there are four, therefore it's this percentage.
Again, it's looking at that fraction and saying, how
many particles are there? Four particles, from again
years of doing this, typically represents about .1,
.2 percent.
Q. And is there any scientific methodology you
can point to justifying that type of calculation?
A. Other than what's in our manual, no.
Q. Dr. Makowski, .2 percent is two parts in a
thousand, isn't it?
A. It could be.
Q. Why don't you do the math?
A. My math is terrible when it comes to that type
of thing.
Q. And yet -- and indeed, you had some problem
calculating 3 percent of 400,000 earlier today,
didn't you?
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A. It's harder when you are nervous. Yes.
Q. Granted.
And despite that, you did not memorialize any
of the math you did in these calculations so we could
check it; isn't that right?
A. That's why I use a calculator while I'm doing
it.
Q. And sometimes you can type things wrong on a
calculator, can't you?
A. If you are careless, yes.
Q. And if there's no record, there's no way to
check it, right?
A. (No response.)
Q. What's the margin of error on an
identification at 0.2 percent inclusion?
A. Probably 50 percent of it. In other words, it
could be .1, it could be .2.
Q. What's your scientific basis for that margin
of error?
A. Just my estimation over the years of doing
this.
Q. Dr. Makowski, you are aware, aren't you, that
in scientific terms, margins of error are typically
calculated on a statistical basis?
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A. Not in agricultural microscopy.
Q. Is there any scientific discipline you are
aware of in which people just sort of construct
margins of error based on their say-so?
A. I don't know if I can speak to that, because I
don't know the whole realm of all sciences to say if
that's a possibility or not.
Q. Can you identify a single scientific field in
which you think that's considered acceptable, other
than agricultural microscopy?
A. Perhaps some areas of ecological measurement,
field studies.
Q. And precisely what areas are you talking
about?
A. I can't tell you specifically. I'm just
trying to give you an example of where it may occur.
Q. Let me ask you to turn to your manual at
Page 16. PUR 16.
A. Uh-huh.
Q. The second column on the right, last
paragraph, it states, "Much patience and study are
required to do quantitative estimation in this way,
as it is still primarily an art. However,
surprisingly accurate results can be obtained,
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particularly after frequent practice."
A. I do.
Q. Do you agree with that statement in your
manual?
A. I do.
Q. What do you mean when you say it's primarily
an art?
A. An art is based on expertise. So, for
instance, if I'm in my Introduction to Cellular
Molecular Biology class, and I'm going to teach my
students how to do a -- run a gel electrophoresis, it
takes only a few minutes to show them how to load a
gel, how to put the lid on it, how to plug it in, how
to run it, and even how to interpret the gel.
Q. Uh-huh.
A. All right? When I'm looking at a feed sample,
where there are the potential of any of a hundred or
more ingredients present, the art of this is my being
able to identify those based on my previous
experience, and also to be able to calculate
percentages based on previous experience.
Q. So, you are saying it depends on individual
skill, just like art does? Whether you'll get a
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Monet or a scribbling depends on the skill of the
artist?
A. I don't want to equate it with the visual
arts, where we are painting something.
Q. What art would you -- did you have in mind?
A. It's an art in that it's a technique. It's a
skill that one has to attain over long periods of
time.
Q. But it cannot be replicated by another
scientist just based on using the same method,
correct? In other words, there is an element
specific to the individual skill and expertise
involved.
A. All right. If two individuals have the same
expertise, the same background, and examined the same
sample, I would say they would come very close to
producing the same results.
Q. Now, let's say two scientists both use the
same methodology but had different levels of
experience and expertise, would they come to
different results?
A. They may, depending upon, again, their
experience with the ingredients that are present,
their level of experience.
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Q. Let me ask you to pull our Dr. Bates' manual
again.
A. Okay.
Q. Do you know what Dr. Bates says about
quantification?
A. I do not.
Q. Have you ever discussed quantification with
Dr. Bates?
A. He has taught me how to quantify.
Q. And what did he teach you?
A. The methodologies that are in our manual.
Q. And are those the methodologies you applied
here that you've described this morning?
A. Yes.
Q. Let me ask you to turn to Page 976 of the
manual.
And by the way, let me ask you another
question. When did Dr. Bates teach you?
A. In the beginning years of my exposure to
agricultural microscopy.
Q. In what setting?
A. In several short courses.
Q. Anything else?
A. No. We also taught together.
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Q. When was that?
A. After a period of time, in those same types of
short courses. Typically, we would offer one or two
short courses per year. Some were basic, some were
intermediate, and some were advanced.
I took all of those with Dr. Bates. Some of
those I repeated, just so I could have additional
experience. Over time, they felt that my technique
and my ability to teach was so good, that they had
asked me to join the teaching team.
Q. Who are "they"?
A. Dr. Bates, Lewis Barefield, Patricia Ramsey,
Glenn Miller. A variety of those who were teaching
those courses at the time asked me if I would be
willing to join the teaching team and actually be a
part of the individuals who would then teach
subsequent courses.
Q. Let me ask you to turn to Page 976. And
you'll see there, there is a subject heading
"Quantitative Analysis." Do you see that?
A. I do.
Q. And at the bottom of that page, it says,
"Unfortunately, quantitative analysis is not as easy
as qualitative. Any subjective technique is
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empirical, and most microscopists develop techniques
that work best for them individually."
A. Yes.
Q. Do you agree with Dr. Bates?
A. I think I understand what he is saying. And
if I am understanding what he is saying, I agree with
him.
Q. What do you understand him to be saying?
A. "Any subjective technique is empirical, and
most microscopists develop techniques that work for
best for them."
When I instruct a course like this and I have
students look at -- we'll keep it simple -- look at
corn, I may describe somewhat what the corn looks
like typically, often according to AAFCO definitions
or whatever. What is important for the student is,
what does the corn look like to them? It doesn't
matter what it looks like to me. Can they recognize
corn based on their perception of what it looks like?
If they can do that, then they will continually be
able to recognize corn.
Q. And they come up -- I'm sorry, go ahead.
A. We don't have to rely exclusively on an AAFCO
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definition. We can, again, based on experience,
begin to recognize, okay, I see this particle. It
looks like -- to me, it looks like this, it looks
like this, it looks like this, it looks like this.
So they are interpreting those physical
characteristics so that they remember it, rather than
just memorizing a list of descriptors.
Q. They are doing it subjectively in a way that
works best for them?
A. They are taking those descriptors and using
them so that they understand them and can retain them
better.
Q. And Dr. Bates goes on to say, "Consequently,
no one quantifying technique has been standardized,
and many variations exist, depending on the type of
sample analyzed."
A. I do.
Q. Do you agree with that statement?
A. Yes. I think again what he is saying is, it
could be the solvents that are used may vary. The
amount of sample that is subjected to analysis may
vary. The type of microscope that is used.
Q. He is referring to quantifying techniques,
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correct?
A. Yes. Yes.
Q. Well, let's have a look and see what
quantifying techniques he then describes. And he
calls these the primary quantification methods. Do
you see those?
A. Yes.
Can I go back to something previously? It's
not part of what you said, but I did notice under
"Qualitative Analysis," we do weigh out a two-gram
aliquot, which is kind of interesting, because,
again, I think he uses two grams in some of his work
as well.
I'm sorry. Go back to the question.
Q. Sure.
So, on 977, you'll see that he talks about the
primary quantification methods and presents them
below. That's the paragraph below the one we were
looking at.
A. "Feed microscopists should determine the best
methods to use" -- is that the paragraph?
Q. It's the last sentence of that paragraph.
A. Okay.
Q. Do you see that?
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A. Yes.
Q. And now, the first methodology he describes is
pick and weigh.
A. Yes.
Q. What is pick and weigh?
A. Pick and weigh is what I did to separate
kibbles from dark bits, where you physically separate
them, pick them out and weigh them, and then write
down the weights.
Q. Okay. And you did not perform pick and weigh
with regard to your individual ingredient
determinations, correct?
A. I did not.
Q. And why didn't you do that?
A. It's too demanding. And notice it says it's
the most meticulous and accurate quantifying. It's
done by physically picking them out, but it is very
difficult. It's very laborious, and should be
performed on small samples.
I didn't have small samples. In fact, I had
50 samples. So this is a technique that would not be
something that we should use.
Q. You could take as small of a sample as you
wanted, couldn't you?
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A. But then that goes against getting a good
representative sample.
Q. So you did not use pick and weigh, correct?
A. Again, I used pick and weigh to separate the
kibbles from the bits.
Now, in other samples, in other work that I
have done, there are what we refer to as mixed feeds,
where we'll have whole grains, pellets, fine
material. In order to do those, we must pick out the
individual things, weigh those, and then do a
flotation on it, if there is a pellet or if there is
a -- you know, what we call a mash, kind of the
ground material.
Q. The next methodology he describes is ratio
standards. Do you see that?
A. Yes, uh-huh.
Q. And the ratio standard, as I understand it,
involves comparing what you see in the sample you are
studying versus the ratio of what you see in another
reference standard where you know what proportion is
a particular ingredient; is that correct?
A. Yes.
Q. Did you use that methodology?
A. I did not.
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Q. Why not?
A. Well, in this particular example, we are
taking a look at mixtures of something like salt,
copper sulfate, dicalcium phosphate and so on. These
are particles that are individual particles that are
readily identifiable by one individual particle. And
so, if we set these up in ratios, then by looking at
the whole, over time one has the ability then to
estimate how much of this, this and this is present.
That would be, again, almost impossible to do
with a sample that has 30, even 15 ingredients, that
some of them look similar to others.
Q. Could you look, for example, at what
proportion of feathers are in your poultry by-product
meal standard and compare it to what proportion of
feathers you are seeing in a sample? Would that be
an example of ratio standard?
A. Again, my understanding is poultry meal isn't
supposed to have any feathers at all in it.
Q. By-product.
A. Poultry by-product meal isn't supposed to have
any either, except that which is by -- you know, kind
of accidentally gets in by processing.
Could I look at the number of -- the amount of
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feathers in a sample and estimate the percentage of
feathers by looking at these types of samples?
Q. Could you compare the ratio of feathers in a
sample versus in a reference standard?
A. I suppose it could happen. It could be.
Q. You didn't do that here?
A. I did not.
Q. The third method he describes is counting
cells -A. Uh-huh. Yes.
Q. -- using the compound microscope, correct?
A. Uh-huh.
Q. You didn't do that here either, correct?
A. It's not germane to the type of analysis we
did. If you notice, it's for blood counting using
occular grids. So if we want to count the number of
white blood cells, you know, various white blood
cells, now we're going to look at individual cells to
determine what they are.
Q. Could you use it to count the number of
feathers?
A. I don't think we could, because we would be
looking at feather fragments. And on a counting
grid, one fragment might take up 10 or 15 grids.
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Q. And the fourth thing he describes is analysis
or verification from chemical analysis.
A. Uh-huh.
Q. This is, for example, the cysteine reagent
test for feather that we talked about earlier?
A. That is not what it is.
Q. Okay. What is it?
A. This is a method where, in a chemical
laboratory, they would determine what we refer to as
proximate analysis, which would be protein, fat,
fiber, those types of things. And so this can be
used as a way of comparing your final results to a
protein value that was actually achieved by chemical
analysis, or a fat content by chemical analysis.
Q. Dr. Makowski, I'm now going to hand you a
document that I'm marking as Exhibit 29 to your
deposition.
Identification.)
BY MR. MANGI:
Q. Can you tell me what that document is, please?
A. This is another -- looks like another
presentation that I made, Identifying Animal Protein
Products by Feed Microscopy.
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Q. And do you know when you made this
presentation?
A. I would have to go back and look. I'm not
sure of the actual date.
Q. Let me ask you to turn to the page with
Bates number ending in PUR 536.
A. Okay.
Q. And you say at the end of the -- you see in
the top paragraph there, you are talking about this
use of fractions under a stereo microscope and
estimated percentages?
A. Yes.
Q. And in the last paragraph -- in that top
paragraph, in the last two sentences you say, "The
estimated percentages from each fraction are then
combined to produce a total of each ingredient
present in the sample."
A. Uh-huh.
Q. And that's similar to what we have been
talking about earlier today from your manual?
A. It is.
Q. And then you go on and say, "This procedure
can often produce results that have a plus or minus 3
to 5 percent accuracy for high quantity ingredients
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and a plus or minus 0.5 to 1 percent for ingredients
present in lower quantities."
Do you see that?
A. I do.
Q. Now, that is -- those are numbers that are
different from those you gave me earlier today,
aren't they, sir?
A. Uh-huh.
Q. And can you explain why in this article, for
example, for a high volume ingredient, you are saying
plus/minus 3 to 5 percent, whereas earlier today you
said plus/minus 10 percent?
A. Okay. Three to 5 percent for high quantity
ingredients, There we're looking at something that's
greater than 50 percent, is a high quantity
ingredient. And so, if we have -- for instance, many
animal feeds for cows will have 60 to 70 to even
80 percent what we call wheat middlings in it, and
it's easy to come in with somewhere plus or minus 3
to 5 percent.
Plus or minus 10 percent is what I say just to
make sure that we have a good range, particularly
when we are, again, looking at things that are more
difficult to estimate.
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Q. Now, Dr. Makowski, earlier today you said that
you would apply a plus or minus 10 percent if the
product were included at a quantity of around
40 percent.
A. Uh-huh.
Q. And now you are saying 3 to 5 percent if it's
there at 50 percent.
A. Or higher.
Q. Or higher.
So where are these numbers coming from?
A. Again, just experience, and people reporting
back to us that this is what we found and this is
what was -- again, back to the check samples that we
talked about. When I was part of the check sample
program, I would estimate on a percentage basis, and
then I would get the results back in percentage
basis. And often I would be within that 3 to
5 percent on some ingredients. Others it would be
closer to the plus or minus 10, depending upon the
amount.
Q. Doctor, there is no scientifically verifiable
or justifiable tests for any of these confidence
intervals or margins of error you are describing, are
there?
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A. Only 28 years of experience.
Q. In other words, I'm the expert, trust me?
A. If you'd like to say it that way.
Q. In sum and substance, that's what you are
saying, isn't it?
A. I'm saying, based on 28 years of experience,
I'm confident in saying these are my confidence
intervals.
Q. Now, Dr. Dravid submitted a declaration in
this case. Are you aware of that?
A. I think so.
Q. And have you reviewed Dr. Dravid's
declaration?
A. It's been a while.
Q. By the way, is there an error rate described
anywhere in your report?
A. No.
Q. And how many years of experience do you think
are necessary to calculate these error rates in the
way that you have?
A. You know, some people are a little better and
have a shorter learning curve or a lower learning
curve than others, so I can't say what -- that will
also vary from one individual to the next. I've
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known some individuals who have been practicing
microscopy for five years and are very, very good,
that their confidence intervals may be plus or minus
7 or 8 percent.
Q. So, 28 years of experience, what you are
saying, ultimately, is it's irrelevant. It's a
question of how good you are, isn't it?
A. Well, that requires experience, though.
Q. But some people with five years' experience
are really great. Is that what you said?
A. Some people. Some people can complete a Ph.D.
in two years, others take ten. It doesn't mean there
are any differences between the two people.
Q. Now, do you have any responses to the specific
critiques that Dr. Dravid put forward in his
declaration?
A. Only if you are willing to give me something
specific to respond to; otherwise, no.
Q. One of the things Dr. Dravid noted is that
feed microscopy is not a determinative science, that
at best, it tells you whether the appearance of
something is consistent with something else, but it
cannot definitively tell you that it is that thing.
Do you agree with that?
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A. Again, if I say a feather is a feather, is it
a feather? If five of us agree that it's a feather,
is it a feather?
Q. Well, five of us aren't seeing anything, you
are, right?
A. Yeah. But what is that based on? It's based
on the experience and the instruction from other
individuals who also recognize that this is a
feather.
Q. So, it's based on, I am an expert, trust me,
yes?
A. It's based on instruction from individuals who
have had as much or more experience in the field as
anyone else.
Q. Would you answer my question yes or no? It's
based on, I'm an expert, trust me?
A. I don't want to answer it that way. My
students in my classroom when I lecture to them
accept what I say. Is it because they assume that
I'm an expert, therefore trust me?
Q. What I'm saying, Dr. Makowski, is that you are
asking us to accept your conclusions that something
is definitively what you are saying it is, but the
only basis for that is your say-so, given the lack of
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any objective scientifically verifiable or
confirmable testing, correct?
form of the question. It lacks foundation, it's a
mischaracterization, and it's misleading.
BY MR. MANGI:
Q. Go ahead.
A. Again, in comparing an unknown to a known and
examining color, size, shape, texture, luster, I
think that's scientific. I think that would be a
scientific way of comparing it.
Q. But you did not annotate any narrative about
those features of what you were observing, correct?
A. I didn't annotate it, but it doesn't mean I
didn't do it.
Q. Now, Dr. Dravid also states in his declaration
that if your report were submitted for publication in
a journal, he would reject it as lacking and not
being compliant with basic scientific principles.
A. I would reject it, also. It's not -- the
purpose was not for publication. It was not a
research article. It was not a journal article.
It's not a review article. It's not anything that
would require peer review or would be expected to be
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published in any publication of any type.
Q. So, you agree that this is not of a standard
such that it would be accepted for publication
anywhere?
A. It's not -- its purpose is not for
publication.
Q. But in its current form, based on the level of
disclosure and technique and detail provided here,
this would not be accepted for publication anywhere,
correct?
A. Its intent is not to be published.
Q. I understand that.
A. Therefore, there was no reason for it to be
published. So, in its current form, it is not going
to be published anywhere, but it's not because it
lacks anything in particular. It is not designed to
be published.
Q. So, Dr. Makowski, can you answer my question
yes or no? In its current form, can we agree that
this article would not be accepted for publication
anywhere?
form of the question. It's been asked and answered.
It's badgering. It's argumentative.
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BY MR. MANGI:
Q. Go ahead.
A. Yes.
Q. Dr. Dravid also says in his report that in
order to quantify an ingredient within a heterogenous
sample, it's necessary to repeat the analysis over a
large number of samples to mitigate errors due to
random variability, systematic bias, or spurious or
gross errors.
A. In theory, yes.
Q. And in this case, you did not do that,
correct?
A. Actually, I did.
Q. For each sample of pet food, you performed
your analysis once, right?
A. On 25 to 30 individual kibbles, which, again,
each represents the makeup of the whole. So,
theoretically, I performed 20 to 25 samples.
Q. How many samples did you take from each bag?
A. How many samples did I -- well, again, what is
a sample? You mean an individual kibble, or do you
mean a quantity?
Q. Well, from each bag you took out one sample,
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separated it into kibble and bits, and then tested
it, correct?
A. That's correct.
Q. But it all traces back to that one sample of
two cups that you took from each bag, correct?
A. Yes. But again, in theory, one kibble is a
sample of the whole. Each kibble is a sample of the
whole. Therefore, multiple samples were tested and
composited, which is often the way it is done, also.
Q. Now, Dr. Dravid stated that he found your work
to be, quote, lacking in basic detail necessary for
one scientist to evaluate another's work.
A. Again, the purpose was not for any other
scientist to examine it, to agree or disagree with
it.
Q. Can you answer my question? I'm not asking -A. Will you restate it?
Q. -- about the purpose of the analysis. I'm
simply asking if you agree with the statement.
A. Could you repeat the statement?
Q. Dr. Dravid said that he found your notebook to
be lacking in basic detail necessary for one
scientist to evaluate another's work. Do you agree
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with that, yes or no?
A. I suppose it would depend on what they were
evaluating.
Q. Dr. Dravid notes that in his expert opinion,
identification by optical microscopy alone may be a
first step or hypothesis, but that, quote, can be
definitively confirmed only by further objective
analytical tools. And he provides his examples,
chemical staining, elemental analysis, confocal laser
scanning microscopy, FTIR-related microscopy, PCR
analysis, and mass spectroscopy.
A. I agree that agricultural microscopy is a tool
to help us identify things, but it is a tool to be
used in conjunction with some of those other
techniques.
Q. Which you did not utilize here, correct?
A. We're not established as that type of a
laboratory, so, no.
Q. Now, Dr. Makowski, let me show you the next
exhibit.
Now, Dr. Makowski, you teach at Messiah
College, which is a Christian college, correct?
A. Correct.
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Q. What does that mean?
A. It means it's affiliated with a church.
Q. What church is it affiliated with?
A. Initially the Brethren in Christ Church, but
it has roots in Anabaptism, Pietism and Wesleyanism.
Q. And what is its relationship to the church?
A. I think it was founded initially by the
church.
Q. And does it -A. By a denomination.
Q. And does it receive funding from the church?
A. If anything, I think the college funds the
church.
Q. It is an ongoing affiliation?
A. Yes.
Q. Let me hand you Exhibit 30.
Identification.)
BY MR. MANGI:
Q. This is the website for the Department of
Biology at Messiah; is that correct?
A. It looks like it.
Q. And it states down there, there's a heading
"Biological Sciences in a Christian Liberal Arts
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Setting." Do you see that?
A. Uh-huh.
Q. And it says, "Thus, while investigating the
world around them, they" -- meaning students -- "also
study themselves and their Creator. The Department
places special emphasis on integrating the knowledge
and methods of the sciences with what Christian faith
teaches about people and their place in the
universe."
Do you see that?
A. I do.
Q. Is that an accurate statement of what you do
in the Department of Biological Sciences?
A. That's exactly what we attempt to do.
Q. Okay. Do you teach what is sometimes referred
to as Creationism at Messiah College?
A. No.
Q. Okay. What is Creationism?
A. Creationism is the belief in a spontaneous
24-hour, six-day creation by a Creator.
Q. And what do you teach at Messiah College in
relation to the role of creation by a Divine Creator
versus Darwin's Theory of Evolution and things like
that?
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A. Am I allowed to ask why we are asking these
questions?
MR. ZARLENGA: I think it is pretty
inappropriate, so...
But go ahead and answer. I mean, we're -this is -- you are treading on thin ice, Mr. Mangi.
BY MR. MANGI:
Q. Go ahead.
A. Which courses do I teach that integrate
science and faith?
Q. I'm trying to understand what your
philosophical approach is to how you deal with these
issues and how you teach these issues in the context
where you are teaching.
A. Can you give me a specific issue, and I will
try to give you a specific response?
Q. Sure. Darwin's Theory of Evolution versus the
conception of a Divine Creator. How do you deal with
those in a classroom?
A. I have no problem with both of those. There
is nothing to say that a Divine Creator could not
have used evolution as the vehicle or the mechanism
by which evolution occurred or by which diversity
occurred.
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Q. And is that, in fact, the theory that you
teach when you address these issues?
A. I don't teach it as the theory. I teach it as
one of -- one of the things we try not to do in the
department is to dictate to students what it is they
should believe. We present a variety of models for
the creation of the universe, the creation of life,
the creation of humans, and then allow them, through
reading and through their own personal introspection,
to decide which theory for them best fits their world
view.
Q. I see.
What proportion of the faculty is Christian?
A. You'll have to define what you mean by
"Christian." Do you mean non-Jewish?
Q. By that definition, I am Christian. Probably
not.
How do you define "Christian"?
A. Again, I'm not sure how we want to define
that.
Q. That's my question. How would you define
"Christian"?
A. I would define it as someone who has a faith
in Jesus Christ as Lord and Savior.
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Q. So, using that definition, what proportion of
the faculty are Christian?
A. I would say the majority, but I have never
asked each individual faculty member where they come
down on that.
Q. And do you know what proportion of the student
body is Christian?
A. Oh, not at all.
MR. MANGI: Okay. I'll pass the witness.
CROSS-EXAMINATION
BY MR. ZARLENGA:
Q. Okay. So, Dr. Makowski, this is just so
everybody knows it's a different voice. As you know,
my name is Carmine Zarlenga. I represent Nestle
Purina in this case.
I want you to assume with me that on May 6,
2014, a complaint was filed, a lawsuit was filed
against Blue Buffalo alleging that contrary to their
labels that say no poultry by-product meal, the
products did in fact have poultry by-product meal in
them. Do you follow me so far?
A. I do.
Q. If you take that assumption, what I'm
wondering, based on your experience, is, could you or
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another qualified microscopist analyze the Blue
Buffalo products to determine whether there in fact
was poultry by-product meal in those products?
A. Yes.
Q. And based on your experience, how long would
that sort of testing take?
A. Not very long. With -- less than an hour's
time.
Q. And based on your experience, how much would
that sort of testing cost?
A. Depending upon what the microscopist wants to
charge on an hourly basis, less than a hundred
dollars.
Q. If it were you that were asked to review some
samples of Blue Buffalo products on or around May 6th
of 2014, if they were sent to you and you were asked
to review them, how much would you charge per sample?
A. For the purpose of identifying the presence of
poultry by-product meal only?
Q. Yes. Let's just start with that.
A. Ninety, 95 dollars.
Q. Can you think of a reason why, if someone was
accused of having poultry by-product meal in their
products, contrary to the labeling on every single
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bag, why they wouldn't do that testing?
MR. MANGI: Objection. Lack of
foundation.
THE WITNESS: It seems to me that that
type of testing should be done on a routine basis. I
can't say why it would or wouldn't be done. But it
seems like it should be done.
BY MR. ZARLENGA:
Q. Is one reason it wouldn't be done was because
if in fact there was poultry by-product meal in the
product, it would be confirmatory of the lawsuit
allegations?
foundation. Calls for speculation.
THE WITNESS: I suppose that's a
possibility.
BY MR. ZARLENGA:
Q. So let me ask you some questions about your
analysis. Mr. Mangi asked you about your analysis
pretty much all day today, right?
A. Yes.
Q. Okay. So is the validity, the overall
validity of your analysis in this matter affected by
typos or omissions in your curriculum vitae?
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A. No.
Q. Is the overall validity of your analysis in
this matter affected by recommendations of the
Environmental Protection Agency, contained in
Exhibit 14?
A. No.
this matter affected by aquacultural methods
contained in Exhibit 15?
A. No.
this matter affected by the presence or absence of
photographs?
A. No.
this matter affected by the quality of any given
photographs?
A. No.
Q. Have you received feedback from any outside
actors or agencies on the validity of your work,
Dr. Makowski?
A. Yes. Anecdotally, when I have submitted
results of samples, I have received feedback on
numerous occasions from individuals or companies that
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want to know -- they might ask about the methodology
or how we did this, and want to know how we got to be
so close in our percentages.
Q. Can you give me the names of any such
companies?
A. Pan American Grain in Puerto Rico. Cargill.
Nutro Products in -- I think they are in California.
Those are a few off the top of my head.
Certainly, the FDA has used our methodology as
a means by which to prevent the incoming of banned
animal protein products in animal feeds.
Q. I think it was mentioned early on today, but
I'm not sure, that you have done some presentations
to the United States Food and Drug Administration?
A. That's correct.
Q. Can you give us some details on that?
A. They had invited me to come down and do a
presentation on how, at that point we referred to it
as feed microscopy could be used as a preliminary
test to determine the presence of banned animal
protein products in animal feeds.
Q. And when did that occur?
A. I'd have to look up the date. It's probably
been, again, close to 15 years since that's happened.
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Q. Have you had any other interactions with the
FDA?
A. The FDA will often send some of their chemists
to our short courses for training so that they, then,
in each one of their laboratories, can use the same
methodologies to identify these banned protein
products.
Q. Training in what field?
A. Agricultural microscopy.
MR. ZARLENGA: So, what are we at,
Number 41? Would this be Number 41.
MR. MANGI: 31.
MR. ZARLENGA: Because this was -- I wrote
down 40 on this last exhibit. Is that possible?
THE WITNESS: 30.
MR. ZARLENGA: 30? Okay. Sorry. My bad.
Identification.)
BY MR. ZARLENGA:
Q. All right. I want to hand you what we've had
marked as Exhibit 31, Dr. Makowski, which says it is
a 2014 official publication, Association of American
Feed Control Officials, Incorporated. Are you
familiar with this document?
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A. I'm familiar with the organization. I don't
think I have looked at the 2014 manual.
Q. I think you mentioned earlier today, you
referred to AAFCO definitions. Do you remember that?
A. That's correct.
Q. What are AAFCO definitions?
A. They are the definitions that are put forth by
the Association of American Feed Control Officials.
Q. On what topics?
A. Descriptions of a variety of feed ingredients
that one might find in animal feeds.
Q. Let's look at the definition in this
Exhibit Number 31 for "poultry meal." It's on
Page 361, Definition Number 9.71. Do you see that?
A. I do.
Q. As I read this definition, poultry meal is not
supposed to contain feathers. Is that consistent
with your understanding?
A. Let me read this. It does say, "exclusive of
feathers, heads, feet and entrails."
Q. And are these the definitions that you applied
in your work in this matter?
A. Yes.
Q. Now, Mr. Mangi asked you about whether your
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report in this matter could be published in a
journal.
A. That's correct.
Q. He also asked you about Dr. Dravid's
affidavit. Do you remember that?
A. Yes.
Q. Could Dr. Dravid's affidavit be published in a
journal?
A. I don't think so.
Q. Why do you say that?
A. Because it is simply a response to my report,
and so it is based on his opinion and perceptions of
my report.
Q. And since Dr. Dravid's affidavit can't be
published in a journal, does that render every single
word and sentence in it invalid?
foundation.
THE WITNESS: I don't think so.
BY MR. ZARLENGA:
Q. Can you tell me, Dr. Makowski, what courses
you are teaching at Messiah College this year?
A. Just this year?
Q. This year.
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A. Introduction to Cellular and Molecular
Biology. Genetics for Biology Majors. I have three
laboratories that go along, two with the Introduction
to Cell and Molecular, and one that goes along with
the Genetics.
And, again, I do a first-year seminar, which
is a writing course in the context of science fiction
in society. In the spring I will be teaching
Bioethics, what we call our senior capstone course,
which essentially takes an emphasis look on
integration of faith and science. And then two
sections of what we call Biology 189, which is
genetics for the health professions.
Q. And have you taught -- outside of this year or
what is planned for this year, have you taught
courses in microscopy?
A. Yes. I teach Microbiology on a rotating
basis. In fact, I forgot, in the spring, I will be
doing a microbiology laboratory as part of an
overload.
Q. What about microscopy?
A. Well, microbiology is microscopy.
MR. ZARLENGA: All right. Thank you,
Dr. Makowski. I have no further questions.
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MR. MANGI: Dr. Makowski, I have some
redirect, which is going to be very short, but I
really need to use the bathroom, so we will just take
a short break.
THE WITNESS: Sure.
CROSS-EXAMINATION CONTINUED
BY MR. ZARLENGA:
Q. Dr. Makowski, can you get out Exhibit
Number 15, which is the Aquaculture Feed Microscopy
Manual that you were asked about earlier today.
A. Okay.
Q. So, there is a section in this manual on
Page 000976 relating to quantitative analysis in feed
microscopy; is that right?
A. Yes.
Q. So, let's look actually at the next page, 977
at the top. And counsel read you the sentence, the
first full sentence. "Consequently, no one
quantifying technique has been standardized, and many
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variations exist, depending on the type of sample
analyzed." Do you remember that?
A. I do.
Q. What I want to focus on is the next sentence,
which says, "However, results from collaborative
studies are remarkably close, and guidelines can be
established to minimize error."
Did I read that correctly?
A. You did.
Q. And how does that relate to this quantitative
analysis of feed ingredients?
A. It seems to me that what Dr. Bates is saying
is that as several individuals attempt to do this
type of quantification using the methodologies
outlined here, that they've gotten results that are
very close, and as a result, the methodology can be
standardized with the hope of always producing
reliable results.
MR. ZARLENGA: That'll do it. Thank you,
Dr. Makowski.
REDIRECT EXAMINATION
BY MR. MANGI:
Q. Dr. Makowski, you described, in response to
counsel's questions, feedback that you have received
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from certain clients that was sort of glowing in
terms. Do you remember that?
A. I do.
Q. How do you get so accurate and stuff like
that?
A. Yes.
Q. Now, were any of those clients asking you to
differentiate between pet food that had poultry meal
in it versus poultry by-product meal?
A. No.
Q. He asked you just now some questions about
Dr. Bates' manual and that others can get to similar
results. Do you remember that?
A. Yes.
Q. Has anyone else done this work or replicated
your work here that you are aware of?
A. Replicated my work?
Q. Yes.
A. Which work would that be?
Q. All the work reflected in your report.
A. Not the individual samples, no.
Q. Is there some other work you've done in your
report that someone else has replicated?
A. No. But I think you are asking methodology
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or -Q. The specific analysis you've done.
A. No.
Q. Counsel asked you some questions about the
EPA, for example, and other methodological critiques,
and asked you whether those impact your results, and
you said no. Do you remember that?
A. I do.
Q. Do you remember the reason why the EPA said
that quartering is not recommended?
A. Not without going back and rereading it.
Q. Do you think the reason they and others may
disapprove of particular techniques is because they
can result in variability or biased results?
A. They seem to think so.
Q. Now, last set of questions.
Counsel asked you about typos or omissions in
your CV and asked whether those impact your results.
Do you remember that?
A. Yes.
Q. When -- you recall we talked this morning
about your CV listing a publication in a
peer-reviewed journal that was, in fact, rejected for
publication from that journal, correct?
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A. Correct.
Q. Do you consider that to be a typo or omission?
A. That was a mistake. That should have been
omitted from the CV or put down in the presentations.
MR. MANGI: Nothing further.
and this concludes the deposition of James Makowski.
(The deposition concluded at 6:15 p.m.)
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COUNTY OF LANCASTER
:
COMMONWEALTH OF PENNSYLVANIA :
I, Christine M. Baird, RPR, CRR, Official Court

Reporter and undersigned Commissioner, do hereby
certify that personally appeared before me, JAMES V.
MAKOWSKI, the witness, being by me first duly sworn
or affirmed to testify to the truth, the whole truth
and nothing but the truth, in answer to the oral
questions propounded to him by the attorneys for the
respective parties, testified as set forth in the
foregoing deposition.
I further certify that before the taking of
said deposition, the above witness was duly sworn or
affirmed, that the questions and answers were taken
down stenographically by Christine M. Baird, RPR, CRR
and Official Court Reporter, Lancaster, PA, approved
and agreed to, and afterwards reduced to print by
means of computer-aided transcription under the
direction of the aforesaid reporter.
In testimony whereof, I have hereunto
subscribed my hand this 24th day of November, 2014.
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___________________________
Christine M. Baird, RPR, CRR
Official Court Reporter
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$1100 (1)
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$12,000 (1)
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$18,000 (1)
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$200,000 (2)
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$25,000 (1)
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$30,000 (1)
93:5
$300 (1)
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$400,000 (4)
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$8 (2)
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257:22 300:7,8
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331:7 387:25
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blueberries (3)
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board (18)
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boards (2)
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body (1)
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bone (49)
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book (55)
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books (2)
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boom (1)
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botanical (1)
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bother (1)
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bottom (21)
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bought (2)
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Brethren (1)
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brown (17)
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BSE (1)
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Buffalo (32)
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Buffalo's (1)
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by-product (185)
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C
C (1)
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camera (23)
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Canada (3)
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Canyon (2)
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Carmine (3)
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case (40)
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CFR (1)
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chair (6)
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change (20)
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chapter (10)
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Checkerboard (1)
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Chefs (1)
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chemical (37)
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Chester (1)
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Chicago (1)
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China (1)
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chloride (6)
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Chow (2)
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Chows (1)
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Chris (1)
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Civil (1)
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claim (18)
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claimed (7)
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clear (29)
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cluster (1)
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CM (9)
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CM/TM (2)
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CMs (1)
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college (19)
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color (26)
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column (22)
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columns (2)
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come (23)
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COMMONWEAL...
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compound (45)
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Conceptions (2)
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indicated (11)
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indicates (9)
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indicating (9)
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indication (2)
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indicative (7)
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indicator (2)
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indicators (1)
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indicia (1)
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individual (36)
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individual's (1)
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individually (3)
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individuals (21)
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Indoor (4)
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industry (5)
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inexperienced (1)
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infestation (3)
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Influence (1)
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inform (18)
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information (21)
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ingredient (30)
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284:19 287:2
312:19 319:21
327:4 337:4 345:13
366:7,11 367:22
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383:22 387:17
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ingredients (47)
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101:16 118:15
128:9 136:11
167:22 187:6 191:9
192:19 202:20
204:21 209:19
219:11 220:19,21
222:8 224:4 240:3
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312:21 329:11,20
331:15,18 340:8
361:21 362:13,19
362:23 365:17,22
366:13 367:3,11
368:17 375:20
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initial (11)
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144:3,11 166:12
171:13 205:14
329:17 358:20
366:12
initially (16)
70:14 88:23 97:13
105:13 109:3
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158:23 159:14
167:5 186:8 368:4
398:5,8
inks (2)
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innocent (3)
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inordinate (1)
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input (2)
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inputted (1)
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insect (3)
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insects (3)
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inside (2)
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insist (1)
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inspect (3)
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inspected (2)
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inspection (6)
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Inspector (1)
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instance (15)
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instances (22)
877-702-9580
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instruct (3)
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instructed (1)
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instruction (9)
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instruction/science ...
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instructor (1)
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instrument (1)
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insure (2)
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integrate (1)
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integrating (1)
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integration (1)
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integrity (5)
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intend (2)
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intended (1)
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intent (6)
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interactions (1)
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intercom (1)
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interested (1)
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interesting (2)
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international (5)
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interplays (1)
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interpret (2)
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interrupt (2)
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interrupted (1)
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interrupting (1)
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interval (3)
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intervals (3)
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interviewing (1)
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introduce (1)
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Introduction (3)
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introspection (1)
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invalid (1)
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invert (1)
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investigating (1)
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invited (1)
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invoice (1)
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involved (11)
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involves (1)
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irregular (3)
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irrelevant (1)
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isolated (1)
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issue (6)
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issues (6)
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item (1)
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items (1)
272:18
J
J (1)
2:20
James (422)
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Janet (2)
84:5,6
January (14)
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108:11,22 110:22
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Japan (1)
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jean (1)
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jeans (1)
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Jesus (1)
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Jim (3)
4:12,14 73:2
JOB (1)
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join (3)
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joke (1)
285:2
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jostle (1)
178:6
jostled (4)
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jostling (2)
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journal (22)
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16:25 22:19,21
23:17,18 26:6,7
36:21 39:17,21,23
393:19,23 409:3,9
409:16 414:24,25
journals (1)
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judicial (1)
230:24
juice (1)
304:17
July (10)
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120:12 122:22,23
123:2,16 171:11
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June (5)
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218:14
justifiable (1)
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justifying (1)
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K
K (2)
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Karachi (1)
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keep (5)
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kept (3)
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key (1)
275:2
kibble (31)
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106:17 114:9
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kibbles (9)
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kid (1)
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Kim (2)
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kind (15)
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kinds (3)
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kitchen (3)
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knew (7)
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knock (1)
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know (165)
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65:10,16 70:12,20
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275:16,24,24
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303:14,23 304:13
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knowing (3)
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knowledge (17)
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known (5)
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knows (2)
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Kobata (3)
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Koch (2)
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Konings (1)
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L
L (3)
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lab (31)
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label (2)
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labeled (5)
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labeling (4)
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labels (8)
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laboratories (19)
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laboratory (24)
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laborious (1)
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labs (8)
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lack (6)
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lacking (9)
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229:11 285:24
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lacks (3)
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laid (1)
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laminar (1)
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Lancaster (2)
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language (6)
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large (11)
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largely (1)
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larger (5)
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largest (1)
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laser (2)
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layer (6)
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layers (4)
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lead (4)
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leading (9)
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leads (1)
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learn (3)
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leaving (7)
877-702-9580
30:20 49:20 108:23

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lecture (1)
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led (17)
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left (18)
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135:23 136:16
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left-hand (4)
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leg (53)
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145:21 150:24
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258:19 284:11
288:16 292:14,17
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294:7,7,14,15,16,24
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legal (4)
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legitimate (2)
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legs (4)
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lemma (1)
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lens (1)
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lesser (1)
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let's (77)
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letter (6)
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letterhead (1)
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level (24)
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levels (3)
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Lewis (1)
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Liberal (1)
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library (25)
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license (2)
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lid (2)
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life (9)
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lift (2)
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lifted (1)
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light (18)
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88:13 125:23
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lighter (1)
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lightest (1)
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lighting (9)
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lights (1)
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limited (2)
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Lindquist (1)
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line (4)
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lines (6)
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linked (1)
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LinkedIn (8)
11:2 81:11,13,16,24
82:2,4,7
linseed (1)
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liquid (4)
137:5 210:3,4,11
list (28)
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25:11 28:4,7 39:3
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listed (36)
12:23 14:15 17:22
23:13 25:10 26:25
28:13 31:4,21 40:13
58:11 60:25 62:14
70:15 73:18 80:22
115:5,7 132:17
147:9 158:18
168:17 202:21
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221:7,11 223:3
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listing (4)
13:4 17:23 61:14
414:23
lists (1)
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literature (4)
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litigation (10)
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little (46)
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84:2 120:13 126:4
137:7 138:9 140:2
156:4 161:11,12
162:11 170:21
176:10 177:18,24
177:24,25 188:10
209:6,9 231:18
259:21 267:2
288:25 289:3,6,6,22
301:20,20 304:21
307:4 312:6,16
341:17 344:14
345:25 347:22
353:13 356:10
358:10 360:4
365:21 390:22
live (2)
194:6,8
lives (2)
21:3 194:9
LLC (1)
1:12
load (1)
375:14
located (2)
25:21 85:20
lock (1)
105:9
locked (2)
108:3 213:7
logged (1)
122:10
logically (1)
122:19
long (16)
18:13,15 70:13 78:16
78:18 81:15 172:2
172:17 178:3,6
235:11 287:4 332:4
376:8 403:6,8
longer (3)
26:7 107:5 207:20
longitudinal (1)
235:13
look (153)
12:4,21 19:4 22:17,18
23:5 25:9 33:11
38:4 44:8 54:11
56:21 57:7,22 60:14
66:20,22,23 72:3,17
81:25 82:5,11,18
84:24 86:24 87:20
91:7,22 106:15
113:8 114:4 120:17
121:14 124:15
130:18 131:2 138:8
138:9 142:6 144:10
150:7,8 154:10
156:3 159:4,15
172:20 173:8 183:9
191:24 195:24
196:24 199:12,18
203:17,18,24
204:22 205:3,24
208:4,22 211:16
214:16 215:3
220:17 221:6,13
222:20,21 223:18
231:6 232:24
233:23 234:14,17
236:24 237:2,9
238:23 242:12
243:10 244:9 247:5
248:6 252:4 256:13
257:22 262:5
265:14 266:22
267:7,8 268:5,16
269:2,21 272:24
275:8 279:24
280:14,22,23
289:14 295:14,18
296:22 298:7 301:6
309:11 310:21
311:12 319:10
877-702-9580
328:3 332:20,24
333:23 337:13,15
340:21,23 341:22
341:24 348:8
349:22 354:10,16
354:17 355:6,11
358:8 359:11
360:15 366:15
368:5,12,13 370:4
379:15,15,19 381:4
384:4,13,14,25
385:19 387:4
406:24 408:13
410:11 411:22
looked (46)
27:14 31:2 36:5 45:17
77:2 78:21 81:2
82:14,15 89:23 90:8
131:11 132:10
134:12 148:22
161:11 165:8
171:16 181:18
198:24,25 205:7,8
211:23 212:3 214:5
214:17 215:9,12
233:4,25 241:17
246:4 249:12 255:3
262:23 279:12,19
279:25 293:6 313:7
313:8 317:7 322:9
365:22 408:3
looking (82)
12:10,22 15:12 16:2
59:9 71:10 73:21
82:17,17 84:20 88:7
127:16 131:15
138:20 141:24
144:23 149:5
162:23 163:4,6
171:8,18 199:20
203:18 204:21
205:13 212:9,11
214:18 223:5,6
224:17 228:19
232:19 233:8,19
239:7,18,20 245:12
253:4 257:24
259:12 262:10
273:17 275:5,19
278:13 295:12
304:25 308:25
309:12 313:19
314:7 321:15
332:25 335:6
337:14 343:8,10,14
346:16,25 349:17
Page 23
350:15 355:23
358:17 361:15
365:5 366:6,13
369:11 370:15
372:5,10 375:18
381:20 384:8 385:3
385:24 388:15,24
looks (29)
13:19 87:14 106:7,8
111:20 122:3 124:7
150:9 156:7,13
226:25 233:17
247:14 264:22
266:2 279:20
340:22 355:5,24
379:16,20,21 380:4
380:4,4,5,5 386:23
398:23
Lord (1)
401:25
lost (2)
231:5 357:9
lot (10)
35:7,11 82:3 134:17
140:21 253:8
269:19 288:12
342:23 352:24
lots (1)
175:16
Louis (1)
2:10
low (4)
42:15 272:23 318:16
351:12
low-ash (1)
351:10
lower (9)
86:6,18 87:5,6 135:22
301:20 318:8 388:3
390:23
luck (1)
259:11
lumped (1)
256:11
lunch (1)
215:16
luncheon (1)
215:19
luster (3)
240:10,19 393:10
lying (1)
290:20
Lynn (1)
45:22
M
M (9)
1:11 2:6 141:25 142:9
148:3 156:23 416:7
416:14,23
Macroscopic (1)
235:4
magnification (9)
87:12 242:14 266:6,8
266:10,12 281:12
295:15 355:12
magnifications (2)
266:19,20
mail (2)
104:4 109:4
main (1)
60:9
maintain (1)
211:22
major (5)
95:15,15 118:15,15
367:3
majority (4)
48:13 204:17 308:14
402:4
Majors (1)
410:3
makeup (4)
280:16 289:25 318:9
395:19
making (14)
21:19 73:17 78:20
127:22 172:21
204:14 246:15
258:25 261:14
264:14 286:20
297:12 305:2
328:20
Makowski (586)
1:11 3:5 4:3,10,12,14
5:14 6:3,5 7:1,4 8:1
8:5,10,14,21 9:1
10:1 11:1 12:1 13:1
13:3 14:1,4 15:1,17
16:1,15 17:1 18:1
18:14 19:1 20:1
21:1 22:1,16 23:1
24:1 25:1,5,9 26:1,9
27:1,17 28:1,8,12
29:1 30:1,19 31:1
31:20 32:1 33:1
34:1,9 35:1,15 36:1
36:4,18 37:1 38:1,6
39:1 40:1,13 41:1
42:1 43:1,13 44:1
45:1 46:1 47:1 48:1
49:1 50:1 51:1 52:1
52:4 53:1 54:1 55:1

55:7 56:1,10,22
57:1 58:1 59:1,2,10
59:24 60:1,13 61:1
62:1,3,16 63:1 64:1
65:1 66:1,7 67:1,6
68:1 69:1,5,14,25
70:1,9,16 71:1 72:1
72:9 73:1,2,10,20
74:1 75:1,6 76:1,22
77:1,14 78:1,4 79:1
79:7 80:1,3,17 81:1
81:3,11 82:1,8,13
83:1,21 84:1 85:1
86:1 87:1,18 88:1
89:1 90:1,18 91:1
92:1 93:1 94:1 95:1
96:1 97:1 98:1,23
99:1 100:1,8 101:1
102:1,12 103:1,3
104:1 105:1 106:1
106:11 107:1 108:1
109:1 110:1 111:1
111:18 112:1 113:1
113:24 114:1,18,24
115:1 116:1 117:1
117:11 118:1 119:1
120:1,7 121:1 122:1
123:1 124:1 125:1
126:1 127:1 128:1
129:1 130:1 131:1
132:1 133:1,6,19
134:1 135:1 136:1
137:1 138:1 139:1
140:1 141:1 142:1
143:1 144:1,25
145:1 146:1 147:1
148:1 149:1 150:1
151:1 152:1 153:1
153:25 154:1 155:1
156:1,20 157:1
158:1,8 159:1 160:1
160:11 161:1,15
162:1 163:1,9 164:1
164:10 165:1 166:1
167:1 168:1 169:1
170:1,18 171:1
172:1,22 173:1
174:1 175:1,11
176:1 177:1 178:1
178:10 179:1,5
180:1 181:1 182:1
182:22 183:1 184:1
185:1 186:1 187:1
188:1 189:1 190:1
191:1 192:1 193:1
194:1 195:1 196:1

197:1 198:1 199:1
200:1 201:1 202:1
203:1 204:1 205:1
206:1 207:1 208:1
208:15 209:1,12
210:1 211:1 212:1
213:1 214:1 215:1
215:23 216:1 217:1
218:1,3 219:1 220:1
221:1,17 222:1,17
223:1,16 224:1,16
225:1,7,20 226:1,24
227:1 228:1 229:1,2
229:25 230:1 231:1
232:1 233:1 234:1
235:1 236:1 237:1
238:1,3 239:1 240:1
241:1 242:1 243:1
244:1,21 245:1
246:1 247:1 248:1
248:15 249:1 250:1
251:1,23 252:1,17
253:1,22 254:1,20
255:1 256:1,13
257:1,13 258:1
259:1 260:1 261:1
262:1 263:1,2 264:1
264:21 265:1,14
266:1 267:1 268:1
269:1,24 270:1
271:1 272:1 273:1,2
274:1 275:1 276:1
277:1 278:1 279:1
279:15 280:1,7
281:1 282:1 283:1
284:1,20 285:1
286:1 287:1 288:1
289:1 290:1 291:1
292:1 293:1 294:1
295:1 296:1 297:1
298:1 299:1 300:1
300:17 301:1 302:1
303:1 304:1 305:1
306:1 307:1 308:1
309:1 310:1 311:1
312:1 313:1 314:1,9
315:1 316:1,24
317:1,24 318:1,20
319:1 320:1,2 321:1
322:1,3 323:1 324:1
325:1,10 326:1
327:1 328:1,18
329:1 330:1 331:1
332:1 333:1 334:1
335:1 336:1 337:1
877-702-9580
338:1 339:1 340:1

341:1,17 342:1,9,15
343:1,24 344:1,24
345:1 346:1,24
347:1,19 348:1,7,11
349:1,7 350:1 351:1
352:1 353:1,8,24
354:1,23 355:1,4,6
355:22 356:1,3
357:1,9 358:1 359:1
359:3 360:1 361:1
362:1 363:1 364:1
364:23 365:1 366:1
367:1 368:1,16
369:1 370:1 371:1
372:1,17 373:1,23
374:1 375:1 376:1
377:1 378:1 379:1
380:1 381:1 382:1
383:1 384:1 385:1
386:1,16 387:1
388:1 389:1,2 390:1
391:1 392:1,22
393:1 394:1,19
395:1 396:1 397:1
397:21,23 398:1
399:1 400:1 401:1
402:1,13 403:1
404:1 405:1,22
406:1 407:1,22
408:1 409:1,22
410:1,25 411:1,2,14
412:1,21,24 413:1
414:1 415:1,8 416:1
416:8
Makowski's (1)
363:4
Makowskis (1)
72:11
managed (1)
345:16
Mangi (162)
2:13 7:17,17 8:9,20
21:12 22:24 23:9
25:4 28:18 29:11
31:9,12 32:11 36:24
38:19 40:12 44:18
47:18,21 53:5 56:9
63:6,22 71:7,21
72:8 74:2 75:13
76:21 79:11 83:11
83:20 86:12 99:16
100:7 101:23 102:4
103:2 111:4,17
113:9,17,22,23
114:12,13 115:25
Page 24
116:16 117:10,23
119:24 120:4,6
121:25 123:13
127:8 132:4,8
133:11,15,17
138:16 139:21
145:14 147:6 150:3
151:16 153:2,3
161:21 163:19,21
164:9,21 165:6,25
168:22 169:22
170:6,10,17 177:12
179:4 180:25 184:6
189:12 193:14,16
193:20 201:14,15
215:16,22 217:4,18
219:7 226:23
229:20 232:13
235:20,21 244:14
244:18,20 255:9
257:6,12 264:20
267:20 268:7
271:17 274:16
275:11 276:4
280:20 282:22,23
285:25 300:10,16
307:5,7,9 322:20
323:22 328:11,17
339:12 342:14
344:23 347:10,18
351:5 355:3,21
356:7 357:4,8 359:2
359:22 363:2,6
364:12,22 369:23
386:21 393:7 395:2
398:20 400:7,8
402:10 404:3,14,20
407:13 408:25
409:18 411:2
412:23 415:6
manipulate (1)
358:10
manual (81)
5:7 10:11 36:8 40:9
40:14,22 41:6,23
42:4,7 44:9 48:3,17
49:3,11,19 50:9,14
50:18,20 51:23,24
52:5,25 53:14 57:5
64:14 66:17,21
67:16 124:4 128:14
179:20 180:11,12
182:18,22 185:22
189:14 191:4 192:2
202:8 203:22 204:7
234:24 244:9
245:18 247:6
259:22 260:12
261:4 265:18 266:2
266:23 272:24
273:2,24 274:24
276:14 277:21
278:5,6 283:8,20,24
284:2 288:14 300:8
331:13,14 372:16
374:18 375:6 377:2
377:12,17 387:21
408:3 411:16,18
413:13
manual's (1)
43:14
manuals (1)
45:18
manufacture (1)
256:23
manufactured (1)
350:20
manufacturer (4)
231:5 259:6 354:18
354:21
manufacturers (1)
329:20
manufactures (1)
195:14
manufacturing (5)
287:18 298:19 352:8
352:13 354:15
March (7)
4:20 122:4,7,8,12,19
174:8
margin (5)
326:19 327:17 328:4
373:15,19
margins (3)
373:24 374:5 389:24
Marjorie (1)
52:18
mark (18)
24:24 32:6 56:5
102:22 139:18,24
156:14 157:20,22
157:25 162:17
166:8 174:18,20,25
226:19 264:17
369:19
marked (41)
8:15,17,21 25:2 32:9
40:10 56:7,11 72:6
76:19 86:10,13
100:5 102:24 103:4
111:15,19 121:23
168:11 179:2 184:4
189:10 219:4,5
226:21 264:18
339:10,13 342:12
344:21 347:16
354:25 355:19
356:5 358:24
359:20 369:21
386:19 398:18
407:18,22
marker (20)
114:23 117:3,6,8
145:17 146:11,13
146:15,18 147:10
259:12 261:5
263:18 283:23
312:10 314:4,8,15
318:14 328:4
markers (42)
115:6,8,10 116:5,7
117:4 127:11
144:10,14 149:14
151:6,11,13,20
152:12 196:12
251:6,21 252:17
253:23 254:9,13,22
255:14 256:10
258:10,14,17
259:22 273:17
275:4 283:4 293:14
312:7 314:11 315:2
315:13 317:8 318:6
318:11,13 321:4
market (3)
42:16 351:24 352:4
marketplace (3)
66:17 82:16 104:23
marking (11)
40:7 72:4 76:17 100:3
102:21 111:14
178:24 183:6
342:10 355:17
386:17
marks (3)
157:14 166:7,9
mash (1)
383:13
mass (3)
188:6 282:9 397:12
match (5)
33:2 158:8 209:19
219:15 366:13
material (14)
188:2,12 214:10,10
215:8 216:5 238:3
253:8 295:24 334:3
352:22 353:25
383:10,14
materials (21)
13:5 24:9 90:20 94:23
115:20 174:5
178:11,14 181:6
193:4 196:23
197:14,25 201:18
210:15 213:11,15
213:20,23 333:3
336:14
math (8)
97:7 205:6 209:14
311:5 371:22
372:20,21 373:5
mathematical (1)
203:22
mathematics (1)
254:17
matter (14)
7:4 67:17 69:8 200:10
225:21 232:7
379:20 404:24
405:4,9,13,17
408:23 409:2
Mayer (3)
2:3 7:23,25
McCutcheon (2)
52:19,20
McNees (2)
1:12 369:24
meal (383)
114:15,21,23 115:5
115:21 116:8,9,13
116:23 117:6,16
127:14 132:15,16
141:14,16,20,22,24
141:25 142:2,11,12
142:15,20,21 143:2
143:2,4,4,19,20,24
144:9,9,13,15,24
145:4,19,25 146:3
146:10,12,24,25
147:10,12,16 149:9
150:22 151:12,13
151:15 152:3,16
153:22 154:2,3,7,7
154:11,19,23 157:2
157:2,5,10,12,12
158:11,14,18,24,25
159:9,13,25,25
160:4,5,8,10,10,13
160:14,16,21,25,25
161:6,6,9,10,12,23
161:23,25,25 162:5
162:6,7,16 163:11
163:12 164:2,3
877-702-9580
166:12,13 172:24
172:25 173:22
176:13,18,22 177:6
190:19 191:7
195:10,23 196:3,7,8
207:24 211:15,15
221:11,14 222:5,6
222:12,14,23 223:4
223:7,9,12 224:2,8
224:12 225:8,17,23
226:3,4 247:10,17
248:2,8 250:25
251:4,6,8,9,13,14
251:17,18,22
252:11,11,19,25
253:10,10,24 254:3
254:4,5,11,22,23,23
254:24 255:4,12,15
255:23,23 256:12
256:24,24 257:4,17
257:17,23,23 258:8
258:9,18 259:2,7,7
259:8,18 260:13,14
260:24,24 261:6,6
262:11,11,16,17
263:3,10,11,14,17
263:19 264:2,2
272:8 283:21,24
284:7,16,17 285:21
286:12 292:16,17
293:13 295:25
297:14 299:24,25
300:3,4 311:21
312:2,9,12,17,17
313:4,8,14,15,23,25
313:25 314:4,11,19
314:21,23 315:5,9
315:19 316:16,19
316:23 317:3,3,5,6
317:11,14,14,19,20
317:24,25 318:3,4,7
318:10,12,15,19,22
319:3,3,15,22
320:15,16,20,20,23
321:9,9,12,13,17,18
321:24 322:5 323:7
323:15,16 324:11
324:12,18,19
325:13,13 326:2
331:21,21,23,24,25
332:6 337:14,16
341:3,4,7 343:19
344:2,5,5,8,9,13,18
345:5,6,24 346:5,12
346:14,17 348:12
349:3,4,15,25 350:2
Page 25
350:3,4,6,6,7,8,13
350:16,16,18,20,25
351:7,11,13,15,19
351:23,24 352:3,4
352:18,18 353:5,6,9
353:9 354:4,5,13,13
354:14 355:15
356:9 360:8 362:4,4
362:5 384:16,19,22
402:20,21 403:4,20
403:24 404:11
408:14,17 413:9,10
meal/turkey (1)
160:5
meals (12)
141:19 257:22 260:6
260:7,16 261:25
262:2 341:7,8,8,10
352:24
mean (52)
24:14 48:8 54:8 68:4
68:4 115:10 128:12
133:19 140:20,24
142:17 162:22
168:3 177:14
182:17 185:10
192:20 196:5,7,9
197:8 215:4 220:25
239:7 244:18
258:14 267:21
275:22 276:5
280:12,23 292:20
296:10 301:3 304:8
304:18 305:21
306:2 310:10 313:8
318:15 325:5
344:15 375:8
391:13 393:15
395:23,24 398:2
400:6 401:15,16
meaning (1)
399:5
means (11)
35:24 115:8 137:17
137:19 139:11
142:18 162:19
184:18 398:3
406:11 416:16
meant (4)
286:12 340:13 341:20
342:6
measure (4)
11:23 34:14 140:7
296:23
measurement (1)
374:12
measures (2)
35:22 141:5
measuring (4)
178:16,17,18 242:19
meat (1)
326:2
Mechanicsburg (3)
85:21 194:9 212:18
mechanism (2)
89:14 400:23
medium (1)
351:12
medium-ash (1)
351:11
medullary (1)
347:25
meetings (2)
45:17 53:14
member (2)
84:19 402:5
members (2)
21:14 129:18
memorable (1)
60:2
memorialize (6)
138:12 241:6 249:14
250:16 365:13
373:4
memorialized (1)
208:17
memorizing (1)
380:8
men (1)
204:2
mentally (1)
241:6
mention (2)
39:8 136:8
mentioned (3)
71:25 406:13 408:4
message (1)
235:19
Messiah (27)
6:6 14:12 17:24 18:21
19:4,24 20:18 29:5
30:3,6,22,25 34:7
68:13 76:11 77:21
84:9 126:15 128:10
128:13 129:11
170:19 397:23
398:22 399:17,22
409:23
met (1)
174:16
metal (1)
105:7
method (6)
4:22 100:14 179:6
376:11 385:9 386:9
methodological (2)
336:12 414:6
methodologies (8)
99:8 182:18 256:7
364:24 377:12,13
407:7 412:15
methodology (25)
114:25 140:23 169:9
169:25 176:16
180:17 189:3
211:19 251:16
258:2,5 259:16
263:24 309:25
331:12 365:20
372:14 376:20
382:3 383:15,24
406:2,10 412:17
413:25
methods (14)
99:21 100:11,17,22
101:4 102:14
184:16 198:12
199:22 381:6,18,22
399:8 405:9
meticulous (1)
382:17
micr (1)
125:18
micro (1)
210:6
Microanalysis (1)
39:18
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210:20 225:15
227:18 230:11
231:24 232:10
239:6 240:17
241:11 244:7
249:24 258:24
278:22,24 280:16
287:6 292:21
295:10 303:14
304:22,25 309:16
311:11 312:18
322:25 324:14
328:5 340:14
342:17 346:9
383:22 384:3
394:17 414:14
particularly (5)
191:19 324:16 358:13
375:2 388:23
particulate (2)
5:5 184:9
parties (1)
416:10
partly (1)
331:9
parts (5)
340:16 371:19,24
372:2,17
Pascal (1)
48:24
pass (3)
15:15 193:5 402:10
passing (4)
88:10,13,14 356:13
patience (1)
374:22
Patricia (3)
37:17 52:17 378:13
pattern (1)
163:8
patterns (1)
163:13
Patterson (2)
2:13 7:17
PAUL (1)
2:19
pay (6)
34:9 42:3,6 84:25
216:5 227:18
PBM (1)
141:22
PBPM (1)
155:17
PCR (7)
282:2,4 299:4,7,7,10
397:11
pea (4)
360:25 361:2,4,9
peck (1)
345:21
peer (2)
15:16 393:25
peer-review (3)
16:18 36:20 38:7
peer-reviewed (10)
15:2,18,25 16:16
26:17 34:25 35:2
36:6,9 414:24
peers (1)
37:8
pellet (9)
181:12,18 190:19
191:8 192:4 193:16
210:2,3 383:12
pelleted (4)
193:11,14,15,16
pellets (1)
383:9
pen (6)
138:10,10 315:18
370:2,3,12
Pennsylvania (3)
7:10 85:22 416:3
pens (1)
138:4
people (34)
10:17 16:8 21:22 35:7
35:11 37:21 38:3
51:14,22,23 52:15
52:23 67:3,7,12
76:6 82:16,17,22
86:21 96:15 192:5
199:2 311:9,13
330:9 374:4 389:12
390:22 391:10,12
391:12,14 399:9
percent (201)
40:25 43:12 96:24
97:5,5,18 114:16
142:18 145:18
146:9,24,25 147:16
148:9,9 150:22
154:2,3,19,23
158:14 195:9
202:24 203:2,4,4,4
205:12,12,15,15,16
205:16 207:13,18
207:20 208:7,7,9,10
208:13 209:20,24
210:13 224:9,10
228:8,8 229:4,7,9
237:24,24 247:20
247:21 249:2
252:11,12 253:2
254:24 259:2,6,7,8
259:13,18 268:19
272:21 291:17
293:12 302:12,13
302:16 303:2,3,5
306:7,16,20,22,25
307:11 308:16,17
308:21,24 310:10
310:15,22,25
311:20,21,25 312:8
312:13,15,21,25
313:22 315:11,12
316:3,5 317:8,18,22
319:5,15 320:21
321:4 322:2 323:2,3
326:21,22 327:4,6,9
327:12,16,20,21,22
327:23,24 328:2,9,9
328:9,9 335:4,11,25
340:21,22,22,22,24
340:25 343:12,13
346:9,13,14,17,17
365:18,23 366:2,4,5
366:5,6,10,19,19,20
367:11,15,25 368:2
368:13,14,15,15,18
368:23 369:2,8,10
369:10 370:11
371:5,14,14,17,18
371:20,24 372:2,6
372:13,17,24
373:16,17 387:25
388:2,12,13,14,16
388:19,21,22 389:3
389:5,7,8,19 391:5
percentage (21)
42:22 43:3 95:15
98:12 207:16
209:19 248:25
251:7 254:8 264:4
312:6,19 313:17,20
314:24 346:20
365:4 372:9 385:2
389:16,17
percentages (13)
141:5 231:8 247:19
255:24 313:2,3,13
318:8 366:14
375:23 387:12,16
406:4
perception (1)
379:21
perceptions (1)
409:13
Perfect (1)
244:17
perfectly (1)
80:20
perform (2)
118:23 382:11
performed (8)
65:13 92:23 124:21
199:3 308:8 382:20
395:16,20
performing (5)
123:25 212:9 307:24
313:21 328:7
period (8)
19:21 57:23 92:6,16
107:3,5 309:13
378:3
periodic (2)
19:18 353:21
periodically (1)
353:16
periods (1)
376:8
permission (2)
129:9,11
permissions (1)
128:24
permits (1)
297:5
perplexed (1)
341:17
person (15)
10:5,6,7 22:2,7 65:16
69:21 91:2 169:9
174:17 189:24
267:23 307:23
309:21 345:23
person's (1)
129:3
personal (6)
17:19,21 174:10
212:21,23 401:10
personally (7)
11:4 37:21 38:20 46:5
48:4 49:18 416:8
pet (17)
105:25 106:7,8,13
114:9 118:12
130:21 134:17
238:11 261:13
285:14 287:18,21
289:11 298:19
395:16 413:9
877-702-9580
PetCare (7)
1:5 2:9 4:21 7:4,22
95:7 97:15
petroleum (2)
89:5 198:3
pH (2)
325:4,4
Ph.D (485)
1:11 3:5 5:14 7:1 8:1
8:5 9:1 10:1 11:1
12:1 13:1,24 14:1,3
15:1 16:1 17:1 18:1
19:1 20:1 21:1 22:1
23:1 24:1 25:1 26:1
27:1 28:1 29:1 30:1
31:1 32:1 33:1 34:1
35:1 36:1 37:1 38:1
39:1 40:1 41:1 42:1
43:1 44:1 45:1 46:1
47:1 48:1 49:1 50:1
51:1 52:1 53:1,23
54:1,12,23 55:1,7
55:18 56:1,23 57:1
58:1,11 59:1,3,23
60:1,18,22,25 61:1
61:14,23,25,25 62:1
62:5,7,17,18,21,23
63:1 64:1,6,10 65:1
66:1 67:1,14 68:1
69:1 70:1,10,23
71:1,19,22,24 72:1
72:22 73:1,14,22
74:1,4,5,7,9,10,14
74:17,22,23 75:1,2
75:8,16,16,17,20,21
75:21 76:1,3 77:1
77:11 78:1,17,25
79:1,3 80:1,19,20
80:23,24 81:1,5
82:1,6,15,20,25
83:1,2,4,5,8 84:1
85:1 86:1 87:1 88:1
89:1 90:1 91:1 92:1
93:1 94:1 95:1 96:1
97:1 98:1 99:1
100:1 101:1 102:1
103:1 104:1 105:1
106:1 107:1 108:1
109:1 110:1 111:1
112:1 113:1 114:1
115:1 116:1 117:1
118:1 119:1 120:1
121:1 122:1 123:1
124:1 125:1 126:1
127:1 128:1 129:1
130:1 131:1 132:1
Page 30
133:1 134:1 135:1
136:1 137:1 138:1
139:1 140:1 141:1
142:1 143:1 144:1
145:1 146:1 147:1
148:1 149:1 150:1
151:1 152:1 153:1
154:1 155:1 156:1
157:1 158:1 159:1
160:1 161:1 162:1
163:1 164:1 165:1
166:1 167:1 168:1
169:1 170:1 171:1
172:1 173:1 174:1
175:1 176:1 177:1
178:1 179:1 180:1
181:1 182:1 183:1
184:1 185:1 186:1
187:1 188:1 189:1
190:1 191:1 192:1
193:1 194:1 195:1
196:1 197:1 198:1
199:1 200:1 201:1
202:1 203:1 204:1
205:1 206:1 207:1
208:1 209:1 210:1
211:1 212:1 213:1
214:1 215:1 216:1
217:1 218:1 219:1
220:1 221:1 222:1
223:1 224:1 225:1
226:1 227:1 228:1
229:1 230:1 231:1
232:1 233:1 234:1
235:1 236:1 237:1
238:1 239:1 240:1
241:1 242:1 243:1
244:1 245:1 246:1
247:1 248:1 249:1
250:1 251:1 252:1
253:1 254:1 255:1
256:1 257:1 258:1
259:1 260:1 261:1
262:1 263:1 264:1
265:1 266:1 267:1
268:1 269:1 270:1
271:1 272:1 273:1
274:1 275:1 276:1
277:1 278:1 279:1
280:1 281:1 282:1
283:1 284:1 285:1
286:1 287:1 288:1
289:1 290:1 291:1
292:1 293:1 294:1
295:1 296:1 297:1
298:1 299:1 300:1
301:1 302:1 303:1

304:1 305:1 306:1
307:1 308:1 309:1
310:1 311:1 312:1
313:1 314:1 315:1
316:1 317:1 318:1
319:1 320:1 321:1
322:1 323:1 324:1
325:1 326:1 327:1
328:1 329:1 330:1
331:1 332:1 333:1
334:1 335:1 336:1
337:1 338:1 339:1
340:1 341:1 342:1
343:1 344:1 345:1
346:1 347:1 348:1
349:1 350:1 351:1
352:1 353:1 354:1
355:1 356:1 357:1
358:1 359:1 360:1
361:1 362:1 363:1
364:1 365:1 366:1
367:1 368:1 369:1
370:1 371:1 372:1
373:1 374:1 375:1
376:1 377:1 378:1
379:1 380:1 381:1
382:1 383:1 384:1
385:1 386:1 387:1
388:1 389:1 390:1
391:1,12 392:1
393:1 394:1 395:1
396:1 397:1 398:1
399:1 400:1 401:1
402:1 403:1 404:1
405:1 406:1 407:1
408:1 409:1 410:1
411:1 412:1 413:1
414:1 415:1 416:1
Philadelphia (1)
230:19
philosophical (1)
400:13
Philosophy (1)
54:13
phosphate (10)
239:16,23 240:2,6
306:9,15 360:12,19
367:5 384:5
photo (11)
4:15 5:17,18,19,20,21
5:22,23 343:21,22
355:7
photograph (1)
219:19
photographic (3)
126:3 216:5 295:4

photographic-relat...
216:2
photographs (15)
113:25 117:13 123:22
123:24 124:14,18
124:19,23 126:16
127:5,10 331:17
347:8 405:14,18
photography (4)
94:11 125:19,21
129:13
photos (3)
60:11 86:14,16
phrase (2)
166:2 258:14
physical (7)
54:6 120:11 124:8
186:11 238:17
353:25 380:6
physically (3)
174:23 382:8,18
pick (10)
177:23 369:13 382:4
382:6,7,9,11 383:4
383:5,10
picked (2)
53:16 259:10
picking (1)
382:18
picture (36)
59:15 87:4,5,6,14
88:18 89:13 90:16
124:6 125:10
235:17,22 242:13
242:17,24 243:3,11
243:15 265:10,14
266:5 269:3,4,11,13
269:14 288:4 291:9
295:3,10 342:17,22
343:10 356:2,10
357:17
pictures (39)
5:8 60:8 86:7 87:3
88:16 90:5,8 107:22
126:12,25 127:17
147:13 148:25
149:8,15 150:5
152:6,11 186:19,22
198:21 216:10,25
217:15 219:11
232:16 234:18
242:7,21 243:21
246:4 247:13 265:3
265:15,23 266:13
266:18 268:5
296:21
piece (10)
182:4 278:25 279:2,3
286:16 346:18
356:12 357:22
369:19,24
pieces (2)
28:4 250:14
piecing (1)
122:6
Pietism (1)
398:6
Pietro (1)
2:20
pigment (2)
289:4,6
Pine (2)
1:12 7:9
pinfeather (7)
270:3,6 271:3,7,12,22
271:25
pinfeathers (2)
269:25 270:11
pinkish (1)
290:5
piping (1)
89:14
place (8)
105:8 107:24 178:2
332:19,23 333:7
334:12 399:9
placed (8)
89:7 157:18 233:12
274:6 329:21
333:21 334:6 353:3
places (5)
160:12,16 240:14
371:12 399:7
placing (2)
182:3 333:3
Plaintiff (1)
1:5
Plaintiffs (1)
2:11
Plan (6)
110:21 112:6 220:14
224:13 225:11,18
plane (1)
343:7
planned (2)
53:21 410:16
plant (10)
261:13 273:15 298:25
299:6,13 343:16,19
343:25,25 347:3
plants (2)
877-702-9580
344:7,7
plastic (4)
108:4 167:25 178:18
215:5
platforms (2)
11:3,6
play (3)
23:24 94:12 316:15
played (1)
24:3
please (13)
7:16 10:15 83:24
123:7 144:18 146:4
228:24 242:9
244:11 260:3 357:5
370:7 386:22
pleased (1)
109:16
plug (1)
375:15
plus (14)
326:21 327:5,7,12,19
327:23,25 387:24
388:2,20,22 389:3
389:20 391:4
plus/minus (2)
388:12,13
point (47)
20:7 21:17 27:15,24
33:10 57:20 58:14
58:16 62:12 69:24
77:22 78:24 106:21
108:18 118:6,19
122:11 145:8
146:22 166:25
176:16 182:10
185:21 201:22,24
216:7 218:3 257:13
260:8 262:3 275:23
276:6 278:23
279:23 290:19
292:18 302:7
310:13,14,18,19
311:7 338:2 342:5
370:14 372:15
406:19
pointed (2)
165:5 179:11
pointing (3)
150:18 206:14 356:23
points (1)
281:21
polarized (1)
280:3
policy (2)
100:16 128:14
Page 31
pomace (12)
362:5,7,8,9 367:13,16
367:18,22 368:3,6
368:23 371:2
poor (4)
125:10 285:2 296:6
296:18
population (2)
268:20,22
porcelain (1)
88:25
portion (8)
30:17,18 61:22
123:17 216:18
293:18 333:16
367:12
portions (3)
58:9 115:14 246:5
position (4)
17:7 55:5 334:12,13
positive (1)
193:22
possession (1)
113:7
possibilities (6)
233:7 287:5 288:13
357:18 358:6,20
possibility (30)
63:8 162:20 200:21
200:25 201:25
225:19 285:18
286:4,5,6,19,23
287:2 288:24
325:25 335:2
344:16 345:19,23
346:2,15 348:4
349:10 350:14
357:20,21 358:16
361:23 374:8
404:17
possible (34)
23:5,10,11 27:12
33:16 40:24 62:24
63:2 67:10 212:2,6
256:13,18 271:10
285:7,9 293:15
297:2 298:10
299:12 324:5
325:11,23 334:21
338:13 340:9 346:5
346:7,10 348:7,10
349:13 352:12
407:15
possibly (2)
343:2 359:12
post-slaughter (1)
285:6
potato (3)
134:19 319:9 320:14
potatoes (11)
130:21 131:3 132:24
134:10,10,13,15,16
134:19,23 135:5
potent (2)
197:6,9
potential (10)
82:24 83:6,7 238:4
278:7,19 288:9,13
329:6 375:19
potentially (1)
80:6
poultry (269)
114:15,20 115:5
116:7,9,12,23 117:5
117:16 127:14
141:22 142:9,11,12
142:15,19,19,20,21
142:25 143:2,3,4,18
143:23 144:9,9,13
144:15,24 145:3,18
145:25 146:3,9,12
146:24,25 147:10
147:11,16 148:3
149:9,21 150:22
151:8,12,13,15
152:2,16 153:22
154:3,7,11,23
156:23 157:2,5,12
159:6 160:3,20
161:3,3 162:7
172:24,25 173:21
195:10,22 196:2
211:17 243:12
247:10,16 248:2,7
250:25 251:4,6,8,9
251:21 252:11,24
253:23 254:11
255:12,15,23
256:11 257:23,23
258:8,10,17,22
259:18 260:6,7,13
260:13,23,24
261:25 262:11,16
262:17 263:3,10,11
263:17,18,25 271:8
271:9,9 283:10,12
283:21 284:6,15,17
285:7,20 286:12,14
287:24 292:16,16
293:13,22 295:23
295:25 297:13,24
299:24,24 300:3,4
311:21 312:2,9,12
312:17,17 313:3,6,8
313:14,15,20,23,25
313:25 314:3,11,12
314:17,19,19,20,23
315:4,5,9,10,19,20
316:15,19,20,23
317:2,2,3,10,24,25
318:3,4,7,10,12,15
318:19,22 319:2,3
319:15,22 320:15
320:16,20 321:9,9
321:17,18,23 322:4
323:15 324:11,18
325:12,12,13,15,22
325:24 326:3
331:21,24,25 332:6
337:14,16 341:3,3,7
341:8 343:25 344:5
344:8,9,13,18 345:5
345:6 346:5,12,14
346:17 348:12
349:3,4,15 350:2,4
350:18,20,25 351:7
351:11,15,19,23,23
352:3,18 353:5,9
354:5,12,13,14
384:15,19,22
402:20,21 403:4,20
403:24 404:11
408:14,17 413:9,10
poultry-type (1)
160:2
pounds (4)
195:6,7,8,9
pour (1)
336:16
poured (1)
256:25
powder (3)
333:13,14,21
powders (1)
333:12
power (1)
272:23
PR (2)
43:24 44:2
practice (13)
112:19 121:10 138:12
139:13 140:11
143:25 145:24
146:2 164:6 166:9
336:22,24 375:2
practices (3)
188:21 352:8,14
practicing (1)
391:2
pre-processing (1)
354:22
precaution (1)
202:4
precautions (2)
197:13 213:2
precipitate (1)
306:11
precise (3)
231:20 369:4,15
precisely (2)
178:7 374:14
precursors (1)
210:7
predominant (1)
75:10
preferably (1)
190:23
preliminary (2)
205:10 406:20
preparation (3)
10:10 84:11 94:10
prepare (9)
9:16 57:13 112:19,22
171:3 172:6,17
175:21 360:2
prepared (6)
57:15,21,25 138:22
171:10 172:9
preparing (4)
45:2 113:15 139:4
171:9
prescribed (1)
100:15
presence (34)
10:24 116:6,9 117:9
117:15 127:13,14
152:15 153:22
159:2 232:2,21
261:4 262:9 271:11
284:3,16 285:19
286:11 287:6 305:6
306:15 312:9 314:3
315:10,13,20
316:20 317:13
319:21 321:23
403:19 405:13
406:21
present (56)
1:13 2:18 18:6 53:22
74:4 91:5 92:12,13
97:2 115:6,15,16
117:8 134:25
137:10,11 144:10
150:22 203:3,18
877-702-9580
210:13 211:13
229:15 231:9,10,25
233:13 239:21
246:19 251:21
252:18 255:14,16
260:13,23 261:17
262:12 269:22
284:9,14 287:3
313:20 314:2,19
319:22 323:15
324:18 325:15
335:17 355:16
375:20 376:24
384:10 387:18
388:3 401:7
presentation (4)
27:24 386:24 387:3
406:19
presentations (5)
19:12 28:2 31:15
406:14 415:5
presented (2)
27:22 55:25
presenting (1)
74:5
presents (1)
381:18
preserve (2)
213:14 352:20
president (2)
102:5,6
Press (1)
41:7
pressure (1)
225:14
prestige (1)
15:19
prestigious (3)
39:17,20,23
pretty (4)
176:24 371:16 400:4
404:21
prevent (4)
105:10 201:24 274:7
406:11
prevented (1)
225:14
previous (10)
19:13 45:18 77:2 78:6
266:11 348:19,21
362:6 375:21,23
previously (9)
66:19 106:5 159:8
216:12 309:9 321:2
348:16 361:10
381:9
Page 32
price (1)
42:13
primarily (8)
22:13 40:5 66:22
114:22 127:25
200:11 374:24
375:8
primary (5)
32:23 114:22 117:6
381:6,18
Principle (1)
361:3
principles (1)
393:20
print (2)
66:12 416:15
printed (3)
60:6,12 76:23
printing (1)
44:25
printings (1)
45:6
printout (1)
25:5
prior (17)
36:13 41:9 46:24 61:9
72:15 77:16 85:6,9
95:3 104:7 105:24
106:2 113:13
126:14 173:24
174:2 198:24
Pro (6)
110:21 112:6 220:14
224:12 225:11,18
probably (51)
18:16 22:9 25:13
59:15 61:3 80:7
84:17 85:17 91:12
91:24 92:8,22 93:14
94:4 95:10 98:5
106:20 107:10,14
107:15,16 125:14
125:24 143:3 160:8
172:4,4 175:4 186:8
209:16 224:11
225:10 226:4
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Protection (8)
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PUR (46)
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Purinas (1)
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quote (6)
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R (1)
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Ramsey (3)
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Randomization (1)
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REDIR (1)
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report (140)
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323:20 416:7,15,16
416:23
reporter's (1)
228:24
reporting (6)
7:13,15 172:16
249:20 258:5
389:12
reports (3)
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represent (7)
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296:13 369:7 371:8
402:15
representative (12)
5:4 102:19 177:10
179:24 184:8
195:15,18 218:8
224:8 351:23 352:3
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represented (2)
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representing (6)
2:11,17 7:18,22 67:21
118:25
represents (3)
275:3 372:12 395:19
republish (1)
68:24
reputation (2)
129:4,4
request (2)
64:22 163:19
require (2)
246:22 393:25
required (7)
84:16 187:10 273:13
274:2,12,22 374:23
requirement (1)
271:6
requires (4)
21:2 240:8 358:12
391:9
rereading (1)
414:12
research (10)
12:24 13:8,8 14:17
18:3 25:14 102:9
129:6 180:21
393:23
reservation (1)
28:24
reserved (2)
245:23 272:7
residence (1)
85:24
residue (5)
200:13,18,20,22,24
resources (1)
299:19
respect (1)
190:2
Respectfully (1)
151:17
respective (1)
416:10
respond (1)
391:19
response (10)
56:12,19 64:4 68:23
131:4 314:16
373:14 400:17
409:12 412:24
responses (1)
391:15
responsibilities (1)
45:16
877-702-9580
responsibility (3)
21:18,21 40:21
responsible (2)
47:5,24
rest (7)
49:19 93:18 112:15
112:17 317:8 321:2
355:15
restate (5)
29:9 94:2 116:18
272:10 396:19
result (9)
50:14 52:11 191:23
234:5 284:23
289:10 327:3
412:17 414:15
resulting (1)
286:20
results (28)
4:12,13 108:6,19,24
109:9,16,20 143:11
185:13 194:14
302:18 303:10
311:8 374:25
376:18,22 386:13
387:24 389:17
405:24 412:6,16,19
413:14 414:7,15,19
retain (3)
107:5,7 380:12
retained (3)
141:3 269:20 361:14
retired (1)
194:5
returns (1)
91:22
reuse (1)
336:14
Rev (1)
5:9
reveal (1)
181:10
revenue (2)
42:20 96:20
review (14)
15:16 16:6 18:24,25
19:2 30:18 38:21
50:12 58:2 236:22
393:24,25 403:15
403:18
reviewed (9)
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36:12,13 37:8 38:22
390:13
revise (2)
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revised (2)
48:12 255:19
revisited (1)
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rice (32)
150:16 227:23 228:16
229:16,17,19
234:18,21,22,22
235:6,9,10,23 236:4
236:5,11,14,15,18
236:22,25,25 237:4
237:5,9,12,15
241:20 248:17
250:10 360:8
Rich (1)
7:24
Richard (1)
2:6
Rico (3)
98:7,14 406:7
ridges (1)
235:13
RIFKIN (1)
2:19
right (94)
9:2 12:14,19 24:7
26:20 56:10 58:21
66:19 74:17 87:13
92:11 97:17 99:10
100:10 108:15,16
108:21 115:3
131:13 134:9 139:7
140:13,15 141:4
142:6 159:12
165:10 178:8
184:21 186:12
188:5 202:12,18
206:8,17,23 207:3
207:14 223:5,6
224:24 226:10
227:19,20 234:17
243:15 244:21
247:3 255:20
261:11 266:10
273:2 276:22
282:18 283:2,25
284:3 292:12 301:8
303:2,3,5,12,18
306:17 308:4,13,14
308:17,19,20
311:10 315:17
319:7 333:14
334:20 340:6,7
342:4,9 349:20
368:7,9 373:6,13
374:21 375:18
376:15 392:6
395:17 404:21
407:21 410:24
411:20
right-hand (5)
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183:9 202:17
rings (2)
298:15,16
robust (1)
188:19
rod (1)
179:11
Rogers (3)
174:19,20,25
role (4)
23:24 24:3 316:15
399:23
roll (4)
97:16,17 177:24,25
rolling (5)
19:11 184:22 185:2,4
185:8
rolls (1)
89:20
room (3)
34:21 203:24 296:21
root (3)
221:7,14,21
roots (1)
398:6
rotating (2)
176:10 410:18
rough (2)
91:24 317:22
roughly (2)
188:4,11
round (15)
104:14 105:24 110:25
111:9,10 120:8
167:24 168:7
212:14 251:24
254:25 256:14
257:14,14 370:6
rounds (1)
196:21
roundtable (1)
27:22
Route (1)
212:20
routine (4)
91:11 96:5,8 404:6
routinely (1)
193:8
row (4)
147:23 227:11 228:2
322:19
rows (3)
142:7 322:16,21
RPR (4)
1:11 416:7,14,23
rubbed (1)
338:18
rudimentary (1)
126:16
rule (2)
120:2 354:12
Rules (1)
119:22
run (5)
44:23 67:20 311:5
375:13,16
running (1)
359:11
RWS (1)
7:8
S
sack (1)
259:10
sale (1)
44:4
sales (3)
42:20 53:14 68:17
salt (8)
135:11 136:25 137:12
137:24,24 200:12
325:3 384:4
sample (203)
91:9 94:3 105:8 111:7
112:20 114:8,19
115:7,9,15 116:6,8
116:11 117:3
121:15 124:9
130:25 137:3 138:8
139:25 140:17
141:3 142:22
145:15 146:6,8,14
148:11,12 149:11
149:21 151:6,7,25
152:2 156:3 158:23
159:2 163:7,8 169:3
169:6 171:13
172:21 176:5,7
179:24 181:16
182:2,9,9,14,20
186:4,7 187:7,16,21
190:8,9,11,16,18
191:2,11,24 192:3
192:14 193:9,13
195:18 199:18,20
202:22,25 203:8,17
204:3 205:3,7,17
206:3,20 209:25
214:17 219:14,19
220:2,8 221:24,24
223:18 225:15
228:14 231:7,24
232:10 247:25
248:11,16,20,23
249:13,25 250:5,9
250:12 251:2 252:8
253:13,18 254:11
254:11,21 258:8
259:12 264:11
267:4 269:15,17
273:9 274:19
282:13 292:19,20
292:21 297:25
300:17,18 301:2,6
301:11 302:4
309:11 310:24
311:2,8,13 312:4
319:8 320:19
328:22 330:2,4,5,23
332:6 335:20 337:9
337:10,15 338:14
339:5,7,8 340:7,15
340:19,20,23 341:2
341:5,10,11,18
342:3,6 344:2,13,18
345:5 346:9,13,25
349:4 350:16
351:23 360:8
361:14 366:15
368:5 375:18
376:17 380:17,23
382:24 383:3,19
384:12,17 385:2,5
387:18 389:15
395:7,16,23,25
396:5,8,8 403:18
412:2
samples (149)
5:5,24 84:11 88:23
91:11 103:22,24
104:16 106:18
107:3,7,19 109:10
109:17,21,24
112:18,23 113:11
115:3,18,24 116:2
116:22 117:12,16
117:20 118:12,21
120:14 122:9
126:15 127:6,7
150:15,21 151:22
152:4,8,14,16
153:21 154:11
877-702-9580
162:4 167:2,4,19
174:7,17 175:12,15
175:20 179:17
180:16 182:6 184:9
184:10 185:24
195:20,21 198:24
202:5 205:21 209:2
209:3 211:8 212:13
213:4,25 214:5,20
218:9 219:12
231:10 233:2,3,5,23
242:3,7 247:17
248:10 254:15
262:22,25 269:20
272:5,13 279:11
282:16 283:2 292:6
292:8,11,15 293:2
297:13 301:4
312:11 314:6,7,25
316:18 318:5 321:3
321:5 322:9,10,25
323:5,18,24 324:3
328:22 329:25
330:20 331:19
335:13,21 339:3
340:9,17 341:16,20
342:7 345:11 347:4
347:6,9 351:13
352:12 354:10
359:24 360:9,16
382:20,21,22 383:7
385:3 389:14 395:8
395:20,21,22 396:9
403:16 405:24
413:22
sampling (4)
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179:6
sat (2)
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satisfy (1)
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Savior (1)
401:25
saw (66)
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116:21 117:7
124:15 127:6,6
142:25 144:12
145:17 146:7,11
149:14 151:6,14,25
168:15 207:24
208:18 211:10
231:23 232:9
239:22 240:3
241:19 243:19
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247:24 248:14,18
249:4,8,22 250:6,24
253:4,8,12,18,23
254:9,14 262:18,22
262:25 271:21
272:18 279:15,16
279:17,19 292:7,10
292:14 295:22
315:4 321:12
323:11,24 324:3,5
325:15 326:6,17
365:8,13
say-so (3)
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saying (48)
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50:17 51:19 52:4
62:5 74:14 161:9,10
161:15,22,24
176:16 205:5,19
214:23 235:7 241:5
255:16 256:6 261:7
261:16 275:12,15
275:23 291:24
317:4 318:2 321:10
327:4,13 357:10
372:10 375:24
379:7,8,10 380:21
388:11 389:7 390:6
390:7,8 391:7
392:22,24 412:13
says (44)
15:5 33:12 56:22 59:2
77:11 85:12 100:14
109:9 120:3 132:13
132:24 142:9
148:10 179:9 183:2
183:14,24 184:18
190:9 202:20
206:15 220:14
222:4 224:7,23
228:3 235:6 245:5
245:11 261:18
273:8,24 274:10,18
274:21,24 278:10
377:5 378:23
382:16 395:5 399:4
407:22 412:6
SBOM (1)
141:25
scale (49)
114:22 115:10,11,11
115:19 117:7,7,9
145:22 150:24
176:25 177:2
241:24 242:16,22
250:8,14,21 251:5
253:2 254:8 258:19
288:16 293:21,22
293:23 294:7,14,24
295:3,8,23 297:8,16
297:23 298:12,17
298:18 299:16,21
323:8 324:3,8,10,14
328:3 356:11
357:21 362:3
scales (11)
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292:18 293:19,19
297:14 298:15
300:4,5 323:9
scaling (1)
293:20
scan (1)
370:21
scandals (1)
16:8
scanning (2)
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scholarly (3)
11:22 26:10 129:3
scholarship (4)
11:24 16:3 20:16
34:16
school (5)
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science (13)
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70:13,23 75:16 76:8
128:3 391:21
400:11 410:8,12
sciences (6)
6:6 76:8 374:7 398:25
399:8,14
scientific (20)
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182:23 189:2 198:9
198:12 210:19
310:14,17 336:11
372:14 373:19,24
374:3,9 393:11,12
393:20
scientifically (4)
169:8 309:16 389:22
393:2
scientist (20)
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147:14 149:5
152:14,21 170:5
189:25 200:16
212:6 214:16
232:19 241:9 248:5
318:20 376:11
396:13,16,25
scientists (3)
139:3 169:23 376:19
scope (2)
90:10 119:25
scribbling (1)
376:2
scrutiny (1)
80:4
se (1)
55:23
Seaboard (1)
230:16
sealed (3)
213:8 353:2,4
search (2)
4:12,13
Sec (1)
4:16
second (24)
12:23 31:25 45:23
56:21 87:5 88:16
89:13 110:25 120:8
147:23 154:10,18
155:10 174:18,22
248:20 250:4
254:25 256:14
260:21 319:12
357:2 365:20
374:21
secondarily (1)
109:4
secondary (2)
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secondly (2)
210:10 368:10
seconds (2)
178:7,8
secretarial (1)
9:23
secretary (1)
10:2
section (16)
11:12 27:25 31:16
85:25 88:20 100:11
185:7 202:13 204:7
235:3 241:18
276:16 278:6,22
356:19 411:18
sections (3)
47:3 182:5 410:13
see (233)
12:10,21 13:18 14:17
25:10 31:24 32:19
45:14 56:12,18
58:10 65:19 72:12

72:18,19,23 77:7
84:9 86:25 87:25
93:2 94:2 100:12,14
100:20,21 103:10
105:17 110:5,7
111:23 112:5
114:10,14 115:8
120:21,25 121:2
124:5 127:21 131:3
131:5,14,16,19
132:24 134:23
135:8 141:7,9
147:24 149:20
150:6,18,25 154:15
155:18,23 162:10
162:11 163:7
172:20 173:9 179:5
179:7,9,13 183:10
183:11,17 184:7,14
184:16,19,22,23
185:6 187:17
189:15 190:5,8,20
190:24 191:24
199:12 200:24
201:2,2,4 202:13,14
203:5,24 206:15,22
210:4,9 211:10
214:17 220:2,3,13
220:18,20 221:7,8
221:10,11,15 222:8
223:25 224:7 225:3
227:10,13,24 228:2
228:6,9,14,16 235:3
235:4,22 239:4,9,11
240:6 242:24
243:12,15 244:22
244:24 245:9,16
247:9,11 248:22
250:8 251:21 252:7
252:8,10,12 254:10
260:10,15,18,25
262:16 263:16
265:3,19 269:21
273:22 275:12,16
276:17,20 277:3
278:7,16 280:3,16
286:14 290:22
292:17,25 293:5,7
293:13,16,19
295:10,15 296:22
300:19 301:8
302:15 305:6 309:9
312:7 313:5,6,22
314:8,22 315:2
318:6,14 319:14
877-702-9580
321:4 323:5 327:13

328:3 339:20,22
342:25 343:3,6
346:6 347:25 348:2
354:10 355:13
359:6 361:13
362:16 366:25
367:2,19 371:3,4,9
375:3 378:20,21
379:4 380:3,18
381:4,7,17,25
383:16,19,20 387:9
388:4 399:2,11
401:13 408:15
seed (1)
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seeds (1)
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seeing (18)
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159:11 163:2
232:10 251:12
292:9 304:24
313:17 317:4 324:8
325:14 335:7
370:10,11 384:17
392:5
seek (1)
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seeking (2)
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seen (37)
16:7 28:11 42:15
56:13 59:13,18 69:2
72:15 82:9 85:13
88:4 110:18,20,20
127:18 130:24
136:21 142:24
143:7 156:20
173:13,17 176:23
198:18 200:19
211:6 221:22 227:3
262:15 263:6 289:8
312:10 324:20
361:9 365:16
367:12 370:22
Select (3)
112:6 220:14 224:13
selected (2)
175:16 187:25
selection (1)
175:18
sell (1)
42:12
semi-opaque (2)
356:15 357:16
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seminar (1)
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send (9)
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109:2,3,7,17 329:25
407:4
sender (2)
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sending (3)
91:11 109:21 217:7
senior (1)
410:10
sense (8)
26:10 27:6 35:23
43:17 106:6 310:13
371:9 372:7
sent (14)
65:6,8,14 103:22
104:16 105:16
108:6,18,24 109:10
109:13 140:19
361:12 403:17
sentence (12)
56:21 63:9 244:23
260:6,21 261:21
275:2 381:23
409:17 411:23,24
412:5
sentences (1)
387:15
separate (9)
27:25 95:21 194:11
196:18 252:23
350:5 382:7,8 383:5
separated (2)
181:8 396:2
separately (1)
205:5
separating (1)
193:4
separation (4)
88:22 177:17 193:2
199:19
September (3)
24:12 125:14 216:9
sequence (1)
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series (3)
171:14 193:5 314:16
serious (1)
69:7
services (2)
94:14,18
set (10)
44:6 45:3 87:19 88:2
155:16 174:18
297:24 384:8
414:17 416:10
sets (2)
99:7 174:7
setting (2)
377:22 399:2
settings (1)
81:9
settling (2)
177:16 179:25
setup (1)
86:19
seven (3)
204:2 249:10 312:21
shape (7)
106:11 233:15 240:9
240:18 295:14
370:5 393:10
shaped (1)
358:4
sheet (2)
223:21,23
shell (34)
150:24 241:23 243:12
248:13,15,18
250:20 251:11
255:3 259:14
282:12,18 283:6,23
284:4,6,9,13,16
285:19 286:11,17
288:4,25 289:2,19
290:6,7,10,15
291:12 292:7
358:15 362:3
shells (1)
283:8
shining (1)
88:6
shiny (1)
235:12
shoot (1)
366:24
shooting (1)
366:20
short (13)
50:14 166:2 329:18
329:19 330:12,21
330:23 377:23
378:4,5 407:5 411:3
411:5
shorter (1)
390:23
shot (1)
358:11
shoulder (1)
16:2
shoveling (1)
345:24
show (24)
11:19 24:23 67:24
76:17 86:7 99:24
100:3 102:20
111:13 121:20
178:24 183:5 184:3
206:2 226:18
264:16 339:9 342:9
355:10,17 358:22
359:17 375:14
397:21
shrimp (2)
141:24,25
sic (4)
28:7 183:15 273:16
300:15
side (10)
17:14,16 25:18 97:5
131:16 334:23
337:16 338:12
358:18 359:11
side-by-side (1)
297:15
sieves (1)
193:5
sign (2)
139:18 140:9
signature (3)
139:20,22 140:3
signed (1)
139:14
Signoracci (1)
2:20
silver (4)
137:2 306:9,13,14
similar (25)
37:6 112:22 266:22
270:8 273:17 275:5
278:12 298:16
310:11 314:7,25
317:9,21 318:5,9,18
321:7,16,21 354:10
355:11,16 384:13
387:20 413:13
similarities (2)
332:20,24
similarly (3)
62:19 101:3 179:16
simple (2)
284:20 379:15
simply (35)
13:7,10 18:2,8 64:24
65:17 75:15 77:19
77:24 103:22 109:7
109:9 138:20
144:12,12 147:9
157:19 174:16
177:18 203:16,17
204:21,25 224:9
226:16 261:25
263:13 284:9
296:21 337:4,8
358:11 369:11
396:21 409:12
single (9)
69:21 162:10 179:10
209:8 333:22
346:18 374:9
403:25 409:16
sink (2)
209:3,4
sinks (1)
196:19
sir (70)
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57:9 63:23 72:24
77:5,9 79:13 114:6
130:4 141:9 146:4
147:25 149:2
150:25 151:17
153:6,15 154:16
155:9,18 163:22
176:20 179:7,13
183:12,17,19,23
184:7,16 185:7,16
189:13 191:2 197:7
197:22 198:9
199:21 202:14
203:5 219:8 235:14
235:25 244:4 260:2
260:25 261:3 262:8
273:6,22,24 277:3
277:25 278:8
285:17 295:5
298:18 302:17
304:20 311:17,24
315:22 324:15
331:5 375:3 379:4
380:18 388:8
sit (34)
30:11 44:7 82:13
114:18 115:18
116:10,20 117:11
117:18 138:8
143:17 163:25
212:2 225:6 234:13
249:3,7 253:11,16
254:12 266:15
279:14,24 291:3,16
292:13 315:8 320:8
877-702-9580
324:13 335:10,24
349:9 360:22 364:6
site (1)
82:10
sitting (6)
138:6 176:9 353:9,12
353:22 369:25
six (4)
312:20 370:19,24,25
six-day (1)
399:21
size (13)
190:9,16 191:2
192:14 193:4,6
194:25 233:15
240:9,18 245:25
332:21 393:10
skill (7)
128:6 302:19,22
375:25 376:2,8,13
skills (1)
301:12
slaughtered (2)
284:10,12
slide (3)
88:7,10,12
slides (1)
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standard-setting (1)
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Technology (2)
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thank (9)
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119:15 121:4
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188:15 252:14
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version (6)
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versus (46)
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vertical (3)
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Veys (1)
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VIDEOGRAPHER...
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view (29)
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49:7
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181:12,15 209:17
211:7 305:2 365:4
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Wallace (1)
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130:23 157:17
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303:13,23 304:10
305:4 345:14,15
365:20 368:11
376:4 385:17
392:18 401:20
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wanted (9)
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Washington (1)
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66:19 85:2 87:22
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way (71)
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97:8 117:14 144:8
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we'll (6)
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we're (17)
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we've (9)
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Webb (2)
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Winfrey (1)
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work (74)
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years (49)
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Zero (1)
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0
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1
1 (46)
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10,000 (1)
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10:00 (1)
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14-cv-00859 (2)
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15 (25)
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16 (11)
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2 (33)
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2.19 (2)
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235:23
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257:7
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108:13
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2014-1 (1)
167:15
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123:17
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23 (4)
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27th (1)
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28 (22)
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29 (3)
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3.13 (3)
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3:35 (1)
300:11
3:47 (1)
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30 (12)
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30-year (1)
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339 (1)
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342 (1)
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344 (1)
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347 (1)
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35 (2)
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35.8 (2)
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356 (1)
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358 (1)
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4 (8)
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4.1.01 (1)
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5
5 (22)
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5:02 (1)
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364:19
50 (19)
35:24,25,25 50:25
51:2,3,14 52:6,25
87:12 186:9 190:23
302:16 303:2
343:13 373:17
382:22 388:16
389:8
50-plus (2)
167:19 237:24
500-gram (1)
179:12
50s (1)
327:25
51 (4)
265:20,25 267:3,8
52.5 (1)
208:8
52.7 (3)
206:9 207:17 208:9
536 (1)
387:7
56 (4)
4:10 247:6 337:15,15
6
6 (9)
4:11 48:6 72:4,6,9
312:25 315:12
364:21 402:17
6.5 (1)
87:12
6:06 (1)
86970 (1)
1:25
87 (2)
244:16 278:5
88 (1)
205:15
894 (1)
85:21
411:7
6:11 (1)
411:10
6:15 (2)
415:7,9
60 (2)
178:7 388:18
60606 (1)
2:7
62 (1)
237:24
63164 (1)
2:10
65 (1)
87:11
656 (2)
339:25 340:6
6th (4)
108:11,22 256:9
403:16
7
7 (6)
4:13 76:17,19 208:8
315:12 391:5
7/23/14 (1)
4:3
70 (1)
388:18
71 (1)
2:6
72 (3)
4:12 184:13 273:3
76 (1)
4:14
8
8 (11)
3:5 4:3,15 86:10,13
114:11 184:14
229:4,7 323:3 391:5
8:44 (1)
7:11
8:45 (1)
1:13
80 (1)
388:19
80s (1)
22:10
81 (2)
272:25 273:3
84.5 (1)
207:18
86 (5)
4:15 85:17,17 92:13
259:24
9
9 (14)
4:16 48:6 100:3,5
142:18 145:18
146:9,24,25 147:16
315:12 317:8 321:3
323:2
9.71 (1)
408:15
9/11 (1)
4:19
9/No (1)
5:16
90 (6)
268:19 302:16 303:3
308:24 328:9
329:14
90s (4)
18:16 22:7 91:3
301:25
94 (5)
205:16 276:13,16,22
312:21
95 (6)
244:25 259:24 261:22
261:24 276:13
403:22
96 (7)
244:11,11,14 245:2,2
260:20 365:23
964.07 (1)
199:22
965.16 (2)
4:22 179:6
97 (2)
367:11,15
976 (2)
377:16 378:19
977 (2)
381:17 411:22
98 (6)
302:16 306:20 312:15
366:5,19,21
98.4 (1)
367:9
98.6 (1)
367:9
877-702-9580
98.7 (1)
367:9
99 (6)
306:20 310:25 335:4
366:5,19,21
99.5 (1)
366:20
99.8 (2)
310:15,22
99.9 (2)
307:11 310:10
99.99852535 (1)
309:23
992 (3)
265:19 267:3,3
9T (1)
2:10
EXHIBIT B
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NESTL PURINA PETCARE COMPANY,
Plaintiff/ Counterclaim Defendant,

Case No. 4: I 4-cv-859-RWS

Defendant/ Counterclaim
Pl
aintiff
DECLARATION OF VINAYAK P. DRAVID, PH.D.

I have been retained by Blue Buffalo Company Ltd. ("Blue Buffalo") and have been
asked to provide a preliminary opinion about the scientific adequacy and
reliability of the
conclusions set forth irr the Expert Report of James V. Makowski dated July 23,2014
(PUR_0002 01 -52), ("Makowski Report").
In his Report, Dr. Makowski, purports to reach definitive quantitative conclusions about
the compositions of various Blue Buffalo products basecl solely on visual observations of the
products using rudimentary optical microscopy. Briefly, Dr. Makowski obtained various product
samples directly from Nestl Purina. Dr. Makowski then examined the processed samples under
a low-power
light microscope, with very lirrited capabilities. Dr. Makowski purponed to
identify ingredients based solely on a subjective, visual comparison of what he observed to "a
reference library of known ingredients"
and validate its
though his Reporl fails to
identi!
the reference library
utility. Dr. Makowski made no effort to document what features
he saw that led
to a particular identification (save for four low quality, scale-less photographs, three of which
were fronr a single sarnple). In other words, he apparently made these identifications based on
121 1442v.1
gut feeling. Similarly, Dr. Makowski purported to quantify the amount of ingredients he
identified through a "visual estimate," though his Reporl and supporting laboratory notebook fail
to set forth any methodology for arriving at such numbers. Furthennore, for some particles
does not say which
- Dr. Makowski apparently
he
required a higher-powered microscope to make
the identification, though again he did not document any of the characteristics or features that led
to any particular identification. Thus, the Makowski Report reflects the use of an inadequate
apparatus, an inappropriate methodology and insufficient sarnpling of the heterogeneous (i.e.
comprised of different kinds of parts) and complex mixture in pet foods to arrive at unbelievably
definitive and quantitative assertions of their cornposition, at a level of accuracy and precision
that is inconsistent with the scientific approach.
In sum, and as set forth in more detailbelow, Dr. Makowski's methods raise serious
questions about the accuracy, reliability, and overall validity of his conclusions. Furthermore,
because his Report lacks critical supporting information,
it fails to provide the basis for his
conclusions.
I.
BACKGROUND AND QUALIFICATIONS
1.
am currently the Abraham Harris Chaired Professor in the Department of
Materials Science and Engineering in the McConnick School of Engineering and Applied
Science at Northwestern University.
am also the founding Director of the NUI/C'
(Northwestem University Atomic-and-Nanoscale Characterization Experimental) Center (since

2001), the founding Director of the Global McCormick lnitiative (since 2012), and the founding
Director of the Electron Probe Instrumentation Center (since 1995).
2.
received my Bachelor's degree in Metallurgical Engineering tn 1984 from the
lndian Institute of Technology in Bombay, India. performed my doctoral research work in
2
727 | 442v.1
Materials Science and Engineering at Lehigh University, receiving my Ph.D. in 1990. I began
my career at Northwestern
Professor
in
3.
in
1990 as an Assistant Professor, was promoted to Associate
1995, and was promoted to
full Professor in 2000.
maintain an active research program investigating nanoscale phenomena in
materials. As such, I have extensive experience spanning about 25 years in the developrrent and
application of microscopic and spectroscopic techniques to the identification and characterization
of a wide range of materials and associated phenomena. My research
encompasses the use
of
microscopy and analyical tools and techniques applied to hard materials (e.g., metals, ceramics,
and semiconductors), soft materials (e.g., biological, polyneric, and food-related products), and
soft-hard interfaces (where hard structures and soft materials are in intimate contact).
4.
Iri my career hitherto, I have published over 380 papers in
academic journals,
peer-reviewed
am a named inventor on 21 issued or pending patents, and
have given
nearly 300 talks or presentations about my research, primarily related to microscopy and
analysis. My publications have been cited over 12,000 times and my so-called H (Hirsch) index
is more than 50, which is considered to be exceptionally noteworthy, indicating that my scholarly
activities and contributions are considered world-class and peer accepted for
sustained
duration.
5.
In my capacity as director of the NUINCE
Center,
implemented a center that provides multi-faceted and integrated tools

nanoscale particles, including electron,
to
conceived
of
and
analyze atomic and
ion and photon-based microscopy and scanned probe
capabilities. I oversee all aspects of NU,4NCE, ranging from instrument acquisition to training
and education of internal students and researchers as well as extemal industry and academic
users in microscopy and analysis.
am responsible for instrument acquisition, implementation,
a
J
'72'7 1442v .1
development of training and usage protocols, upkeep and sustained high-impact use of various
instruments and technques in
NUINC. I
supervise an administrative staff of three and
technical staff of over ten, including eight Ph.D. staff scientists. The NUINCE center has over
700 student and researcher users and over I 00 faculty affiliates, spanning diverse technical
departments and themes.
6.
My teaching and
education activities also mako use
of my expertise and
experience in microscopy of materials. I have been teaching classroom and hands-on laboratory-
intensive microscopy courses for almost 25 years to undergraduate and graduate students with
diverse backgrounds and
training. Over 1500 students have undergone training and supervision
under my tutelage related to all aspects of microscopy and analysis, ranging from complex
specimen preparation
to
quantitative data analysis.
implemented several "short-course" nodules
for
have conceived, developed
education and training
of
and
students and
researchers from diverse backgrounds. These include, for example, Nano Bootcamp, a series
of
lectures and demonstrations offered under the auspices of the American Society of Mechanical
Engineers
(ASME). I have also delivered lectures, seminars and short-courses related
to
microscopy and analysis to external agencies and professional societies, such as, among others,
National Institutes of Health (NIH) and Federal Drug Administration (FDA).
7.
have consulted and advised industries and both academic and non-profit
institutions related to microscopy, analysis and nanotechnology. Some of my consulting work is

specif,rcally related to biology/polyrners (DNA, proteins, peptides, cells/tissues), natural food
(plants/leaves, fruits), processed foods and food products (cheese, wine, ice-creams) and other
materials which require use of microscopy and analysis to understand their hierarchical lengthscale architecture (rnicrostructure), such as chewing gums and soft-hard drug delivery systems
4
721 I 442v
.l
(drug eluting stents). This work has required sarnple preparation, microscopy and analysis
analogous to feed rnicroscopy.
8.
serue as an Editor
of Microscopy & Microanalyss, the flagship journal of the
Microscopy Socety of America, the oldest professional society for microscopy in the U.S. As
an Editor of Microscopy
& Microanalysis, I manage the complete
peer review process, mediate
interactive discourse between anonymous reviewers and authors, as well as employ editorial
discretion for over 90 technical manuscripts related to microscopy and analysis submitted to the
journal every year. My role was diversified in recent years to cater to correlative and emerging
microscopy applications, including the scientific discipline encompassing the microscopy of
food, agricultural products and related "sof" matter. Since 1995,1have been a member of the
Editorial Board of the Journol of Microscopy, a 77S-year old peer-reviewed scientific journal
published by the Royal Microscopical Society. Recently,
Current Opinion in Solid State & Materials Scence,
also joined the Editorial Board
of
joumal devoted to publishing a series of
reviews covering recent and irnportant developments in the field of materials science. In these
various roles,
am responsible for reviewing articles submitted for publication, taking into
consideration comments from reviewers, and making judgments about the scientific acceptability
of the work repofled.
9.
I have received nuilterous awards for my research, education and outreach efforts
and achievements related to microscopy, analysis and materials science.
Microscopy Society
applications
of
America,
of microscopy in
in its
inception class,
I was elected Fellow of
for pioneering contributions
to
materials science, and received the Bufton Medal from the
Microscopy Society of America, given to a researcher under 40 to honor his or her distinguished
contributions to the field of rnicroscopy and microanalysis. My other professional society
5
727 !442v
.1
fellowships (American Ceramic Society, Materials Research Society, and the American
Association for the Advancement of Science) represent primarily my research, education and
outreach efforts related to microscopy of materials. I have also received several teaching awards
from undergraduate and graduate students related to courses and curricula pertaining
to
microscopy and materials.
10. My
expertise and advice has been sought
organizarions, institutions and laboratories involved
in
by national and
intemational
microscopy, analysis and materials
science. I have served on advisory boards and review panels for assessment and evaluation of
materials and mjcroscopy-related programs and projects for, among others, the Department of
Energy national laboratories, National lnstitutes of Health (NIH), National Science Foundation,
(NSF) Department
of
Defense, NASA, and Defense Advanced Research Projects Agency
(DARPA). My international review and evaluation committees include, among others,

Australian Consortium
institutions, Province
of Microscopy Centers,
of Ontario,
the
Dutch/Netherland microscopy projects, U.K.
Canada, and Singapore and India Science
&
Technology
agencies. My participation and role in such diverse activities was sought primarily based on my
experlise and experience in all aspects and forms of microscopy and analysis.
1
1.
A more cornplete description of my background
and qualfications is set forth in
my curriculum vilae, attached hereto as Exhibit A.
12.
For my work in connection with the preparation of this declaration,
am being
compensated at my usual and custolnary rate of $300 per hour.
II.
SUMMARY OF OPINIONS
13.
The Makowski Report purpos to be a definitive analysis of the composition of
various Blue Buffalo products based on very basic and lirnited microscopic examination. Having
6
727 1442v.1
reviewed the Makowski Report and supporting rnaterials, however,
I find that Dr. Makowski's
methods and the scant infonnation he provides raise serious questions about the adequacy of his
analysis and the reliability of his conclusions. Furthermore, the Report is filled with gaps, failing
to provide basic supporting infornation necessary for one scientist to evaluate and validate the
work of another. This is not surprising given that Dr. Makowski's conclusions appear to
based on nothing more than his gut
be
feeling. If the Makowski Report were submitted to me for
publication in Microscopy &. Microanalysis,
t would be rejected
as entirely inadequate and
unreliable, principally for its lack of details, questionable specimen preparation methodology,
inadequate and inappropriate analysis protocols, and unbelievably definitive and quantitative
attributions without any error analysis, despite limited sampling.
14. As an initial matter, the basic optical
microscopy techniques described in the
Makowski Report do not constitute a deterministic analysis-in other words an analysis that
allows definitive conclusions about composition-of the pet food products Dr. Makowski
studied. The techniques and analysis Dr. Makowski presented are inadequate and inappropriate
to identify constituents in a pet food product that are unknown, not well-characterized, or those
which may be present only n small or trace quantities.
15.
The Makowski Report provides none of the detail or supporting information
necessary to deternrine whether Dr. Makowski has even appropriately identified anything in Blue
Buffalo's products that rnight be consistent with poultry by-product meal or com, let alone
sufficient to make an unambiguous identification of these ingredients. As set fofth in more detail
below, the Makowski Repo fails to:
Identify or describe Dr. Makowski's reference standards;
Explain the basis for Dr. Makowski's purporled ingredient identifications;
l
127 1442v
.l
Fully describe Dr. Makowski's sample preparation procedures;
Explain the basis for Dr. Makowski's purported quantifications;
Describe what,
if any,
steps Dr. Makowski took to evaluate, address or minimize enor.
It is therefore impossible for me to fully
assess
Dr. Makowski's conclusions, other than to note
that the Report he has provided does not constitute reliable evidence for the conclusions
he
purports to draw.
III.
FEED MICROSCOPY IS NOT A DEFINITIVE METHOD FOR

IDENTIFYING INGREDIENTS IN PET FOOD
16.
Feed nricroscopy, the technique Dr. Makowski described using to analyze Blue
Buffalo's products, is the process of looking at particles and features in animal feed products
under
a light, or optical, microscope. This is a rudimentary
morphological properties such
evaluation based on basic
as size, shape and reflection,
observed under limited
magnification. Feed microscopists attempt to visually compare these physical characteristcs of

particles and features in animal feed to certain known standards that are thoroughly characterized
and validated in advance.
11.
Feed microscopy is not a valid technique for evaluating unknown or poorly
charac|erized constituents, particularly
in a heterogeneous product like pet food. Pet food is
heterogeneous in tenns of the size, shape and distribution not only of coarse contents, but also
microscopic, nanoscopic and molecular constituents. Because of the numerous variables and
variations
of
components and constituents
in pet food (including variations
based on the
processing undergone by the ingredients and the co-ingredients with which it was formulated),
feed microscopy as presented by Dr. Makowski, is
possible to use
it
at best
a comparative technique.
It is not
as a definitive or detenninistic approach given the core and basic limitations
inherent in optical microscopy. In order to unambiguously determine the composition and

8
121 I442v.1
distribution of specific constituents in unknown samples in pet food products, as Dr. Makowskj
purports to do, it would be necessary to perform a more sophisticated and deterministic analysis
of the biologic products in the samples - one relying not on subjective experience, but objective
measurerrents
18.
along with extensive statistical sampling and analysis.
Even under the most favorable conditions, which are not present in the analysis
Dr. Makowski performed, the optical microscopy techniques and analysis Dr.
employed are highly subjective, qualitative, and prone
to
Makowski
substantial enor and mistakes,
includng operator bias in its interpretation. Therefore, to make conclusions even about
comparative correlation between a particle in pet food and a particular ingredient, a rigorous
protocol must be developed. This protocol should take into account the variation inherent in pet
food before alowing a nominal "match." Any such protocol should include, for example, solre
quantitative measure
of
sharp edges, corners, reflectivity, size and other morphological
characteristics beyond the subjective, visual goodness of
fit.
The protocol should also include
specific guidelines for feature matching. As set forth in more detail below, Dr. Makowski did
not describe using such a protocol or making such observations.
19.
In addition, steps should be taken to minimize operator or human bias in both the
sarnpling of the feed and the recognition and attribution of ingredients. As to the former,
sampling alarge volume of material by means of objective sampling criteria
such as a blinded
sampling whereby an assistant unaware of the nature of the examination performs the sampling
is ideal. As to the latter, ideally, observations should be conducted wth irnage recognition
software.
20.
used
Even in the limited circumstances, not present here, where feed microscopy is
to analyze known, well-charac|erized
constituents, the conclusions that can be drawn frorn
9
127 1442v
.1
feed microscopy are severely
linited. While it rnay be possible under optimal conditions,
again
not present here, to identify particles or features that are consislenl with well-characterized
standard images or prior data, optical microscopy alone is not a valid basis to identify a particle
or specific feature in sufficient detail to definitively characterize its origin. Rather, any such
visual comparison between a parlicle or feature and known standard(s) is simply a frst step,
hypothesis, which can be definitively confirmed only by further objective analytical tools. These
include, alxong others, chemical staining, elemental analysis, confocal laser scanning
microscopy, FT-IR/related microscopy, PCR analysis, and mass spectroscopy. Indeed, Dr.
Makowski's own manual describes "spot tests," simple chemical assays, to support microscopic
analysis. (PUR_000110-14.) Dr. Makowski does not describe perfonning any of these objective
analyses on any particle he purported to identify, nor did he explain his reasons for failing to do
SO
IV.
THB MAKOWSKI REPORT IS LACKING IN INFORMATION

SUFFICIBNT TO FULLY ASSESS IT
21.
The Makowski Report leaves unanswered questions about each step of Dr.
Makowski's work and analysis. These gaps are so severe that
it is impossible to detennine
whether his analysis produced even a reasonable hypothesis that Blue Buffalo's products
contained chicken by-product meal, corn, or rice hulls.
A.
The Makowski Report Does Not Identify the Basis for Dr.
Makowski's Conclusions
22.
According to Dr. Makowski, he examined Blue Buffalo's products under light
microscopes and identified large parlicles "by comparing [thern] to a reference library of known
ingredients and
experience
with [his] knowledge of particle
characteristics based
on nry
with examination of similar particles," and identified other particles based
"cellular structure rather than on characteristics of larger particles." (PUR 00021 0.)
t0
'72'7
1442v
extensive
on
23.
Feed microscopy as Dr. Makowski describes it rests on two clucial
pillars: (l) the
accuracy of the known standards; and (2) the accuracy of the comparison. Only
if
both pillars
are solid can a feed microscopist determine that a particle even is consistent with a particular
ingredient. The Makowski Reporl fails to provide any foundation for either pillar.
l.
24.
The Makowski Report Fails to Identify Dr. Makowski's

"Standards"
Dr. Makowski provides absolutely no information about the known standards he
claims to have used
other than to direct the reader to his own book and his own experience,
both of which are completely subjective and completely unable to be validated. Furthermore,
as
the processing and rendering that the ingredients undergo in the production of pet food products
not to mention the invasive flotation protocol he used to prepare the samples
are expected to
alter the physical characteristics of the particles contained therein, a known standard should also
be subjected to similar conditions. The Makowski Reporl, however, is silent as to the nature or
source
of hs standards, and thus the reader has no reason to believe that his standards
are
adequately controlled.
2.
25.
photographs
The Makowski Report I)oes Not Describe What Dr. Makowski

Observed
Dr. Makowski also provides absolutely no information other than four dark
to document what he observed in Blue Buffalo's products, to explain the basis for
or to support the accuracy of his comparisons.
26.
As to the four photographs attached to his Report, three of the fbur are from
single sarnple of kibble from one Blue Buffalo product

Chicken & Brown Rice Formula
- the BIue Buffalo Lfe Protection Indoor
and purport to show a "Chicken or poultry leg scale," a "Raw
chicken or poultry feather," and a "Chicken or poultry egg shell fragment." (PUR_000259-51.)
However Dr. Makowski's four photographs provide no meaningful infonnation about the
l1
121 1442v .)
particles they depict. As an initial matter, the photographs are dark and blurry. Fufther, they do
not contain a scale bar, basic infonnation necessary to evaluate any microscopic irnage. Without
this infonnation
it is irnpossitile to determine
sornething a micrometer in
whether an image depicts the Milky Way or
size. I understand that counsel for Nestl Purina has confinned that
these are the only four photographs Dr. Makowski took of the samples.
27.
Dr. Makowski suggests, but does not outright state, that these fragnrents indicate
the presence of poultry by-product meal. But, in any event, even for the parlicles Dr. Makowski
photographed, he does not describe the features which led him to this parlicular identifcation.
For each ingredient he purports to identify within each sample of each product, what features did
he see that led him to one identification over another?
28.
For example, according to Dr. Makowski he identified the presence of poultry by-
product meal in two samples based on his detection of particles he believed to be feathers, leg
scale, or egg shell fragments. However, Dr. Makowski does not describe the features on which
he based his supposed identification of those particles. Nor does Dr. Makowski estimate the
nulnber, volume, or weight of these particles, or the expected rate of inclusion of these particles
in chicken meal as opposed to by-product meal (which would be necessary to distinguish
two).
the
Further, Dr. Makowski provides no explanation for the basis of his identification of
poultry by-product meal in any of the other samples in which he claims to have identified this
ingredient.
29. Dr. Makowski
also provides no details about his own identification process.
According to Dr. Makowski, he first examined the sarnples under a stereo microscope with a l0-
20x magnification power. \/here he was unable to identify a parlicular component using the
stereo microscope, Dr. Makowski describes transferring the unknown particle
12
1211442v
to a
higher
magnification (100-a00x) compound microscope
"for more detailed
examination."
(PUR_000210.) For this analysis, Dr. Makowski prepared microscope slides and identified
components
(Id)
However, Dr. Makowski does not explain which particles he identified using
a stereo microscope and which required the use of a compound mjcroscope, nor does
Dr.
Makowski describe the cellular structures that allowed him to make identifications. Moreover, I
understand that counsel for Nestl Purina has confirmed that Dr. Makowski did not retain his
sldes. In any case, both types of
microscopes suffer from intrinsic and scientifically
fundamental constraints associated with optical microscopy techniques, which are limited to size,
shape, distribution and reflection/transmission characteristics
of large features and parlicles in
the sample.
30. Dr. Makowski's
Report leaves a number of unanswered questions about his
purported identifications. For example, were there multiple plausible identifications that he
considered and whittled down to his purportedly conclusive identification?
If
so,
why?
Dr.
Makowski includes no pictures, no drawings, and no words describing the features. Instead, the
Makowski Report implicitly asks the reader to merely accept his gut feeling; in other words, he
is saying, "trust me, I'm an expert." But science is not perfonned based on gut feelings and is
not accepted based on trust; scientific conclusions are accepted because they are rigorously
documented, and independently verifiable.
3l.
It
appears
that Dr. Makowski never made a
scientifically-appropriate
documentation of his work. I have been provided Dr. Makowski's lab notebook to review, and,
like his Repoft,

another's
I find it to be lacking in basic detail necessary
work. (PUR_000257-86.) The pages
for one scientist to
evaluate
are undated, unsigned, and unwitnessed, in
contrast to good laboratory practice. Ingredients that Dr. Makowski purpofis to identify are
l3
721 I 442v.1
hand-written, crossed out, and re-written
in
different colors
of ink with no explanation,
suggesting uncertainty about the identifications. Numbers, apparently representing percentages
of those ingredients, are also crossed out and re-written in different colors of ink
without
explanation in Dr. Makowski's Report or his notebook. And no description of the characteristics
of the partcles Dr. Makowski was looking at
are present, nor are pictures
or samples. Dr.
Makowski's notebook is thus the same as his Reporl: bare unscientific conclusions supported
neitlier by data nor explanation.
32.
Moreover, there are
a number of
unexplained inconsistencies between Dr.
Makowski's Report and his Notebook, a few of which I describe briefly below.
a
For several samples, the Report indicates he presence of poultry by-product

meal, but the Notebook nolation suggesls otherwise. For example, in the dark
bits of sample 001-2014 (identified as Blue Buffalo Wilderness - Adult
Chicken Recipe (Dog)), the Report indicates 9%o poultry by-product meal,
(PUR_000212), but the notebook indicates 9o/o"Poultry M," (PUR_000258),
which appears to stand for "poultry meal." And, for the kibble of Sample
006-2014 (identified as Life Protection - Adult Chicken & Brown Rice
(Dog)), the Report indicates 22%o poultry by-product meal, (PUR_000211),
while the Notebook indicates 22o/o "CM," (PUR_000263), which apparently
'Where
Dr. Makowski did purporl to identify
stands for "chicken meal."
poultry by-product meal in a sample, he used the distinct notation "PBPM."
(See, e.g.,
PUR 000259; PUR 000265; PUR 000277.)
For a number of samples, lhe numbers in lhe notebook simply do not match up
with the numbers in the Report. For example, for the kibble in sample 0022014 (identified as Blue Buffalo Wilderness Adult Chicken Recipe (Dog)),
the Report indicates 8% poultry by-product meal, (PUR_000213), while the
Notebook indicates only 3Yo, (PUR 000259).
a
For some samples, the Report conlains daro al is nol reflected in the
Notebook. For example, in the dark bits in sarnple 010-2014 (identified as
Blue Buffalo Basics - Adult Turkey & Potato (Dog)), the Report indicates
0.56% total chlorides as NaCl, (PUR 000221), but the Notebook fails to
indicate the presence of any chlorides in the dark bits, (PUR_000261).
For one sample, a queslionable identificalion in lte Nolebook was listed in

the Reporl as a definilive identification. Specifically, for the dark kibble in
sample 011-2014 (identified as Purina ONE beyOnd Salmon & Whole Brown
14
127 I 442v
Rice Recipe), the Notebook indicates 22o/o of "Fisli/Chicken ?"

(PUR_000268) - apparently Dr. Makowski was uncertain at the time of his
analysis - while the Report indicates 22o/oFish, (PUR 000222).
These raise serious questions about the conclusions Dr. Makowski reaches
in his Reporl,
and
highlights the absence of basic information needed to evaluate the veracity of such conclusions.
B.
The Makowski Report Leaves Unanswered Questions about Dr.

Makowski's Sample Preparation Procedures
33.
The sample preparation procedures described in Dr. Makowski's Report raise
additional questions about the veracity of Dr. Makowski's conclusions while leaving unanswered
questions about exactly what those procedures entailed.
34.
Dr. Makowski received various samples of Blue Buffalo and Nestl
products from Nestl
Purina. From each of these
samples,
Purina
Dr. Makowski removed
an
approximately 200-gram sample of pet food (he does not state how), which he transported to
Windsor Laboratories.
35.
According to Dr. Makowski, for each sample, he "personally and manually
separated the kibble and dark
bit components," weighing each. (PUR_000209.) Dr. Makowski
does not explain whether he performed any procedures to ensure that the kibble did not contain
surface particles frorn the "dark bits" or vice versa.
36. Dr. Makowski
then sampled the kibble and dark
bit
components using a
"[q]uartering" protocol to obtain a2-gram subsample, which he then ground up. (ld.) According
to Dr. Makowski, each 2-gram subsample was subjected to a flotation protocol, in which the
solid material was stirred into various organic solvent mixtures. ln the first stage, he used 6 mL
of a 1:l mixture of carbon tetrachoride:chlorofonn. In the second stage he added 2 nL of

petroleum ether. In the third stage, he added chlorofonn.
' Windsor Laboratories, according to Google Maps, appears to be located in a residential horne.
t5
721 I 442v.1
31. This is an invasive process

components within the pet
food. These
that would likely result
processes would
in attrition of ceftain
likely not only dissolve solne organic
and biologic matter, but would also subsequently cause some material to "precipitate" in
different forms with different morphological characteristics during or after drying. This is
sornewhat analogous
to stain formation after washing, wherein
resdue that does not fully
dissolve reappears in solid form. Furlher, the particles in the pet food may have been subjected
to mechanical sheer, which rnight have futher altered their physical characteristics. Thus, the
appearance of unusual and misleading morphologies in the end products and residues cannot be
ruled out in following the sample preparation process Dr. Makowski performed.
38.
Dr. Makowski's flotation protocol caused some of the material to float while
other material sank. He separated the floating material from the sunken material at each stage,
and, in this way, culled "3 or 4 density-dependent fractions of ingredients." Dr. Makowski does
not state which samples generated three fractions and which samples generated four fractions, or
explain the basis for the difference.
39.
According to Dr. Makowski, he weighed each of the fractions. However, Dr.
Makowski does not provide the weights he supposedly recorded from each fraction, does not
explain any conclusions he drew from those weights, and does not identify in which fractions the
particles he ultimately identifed were located.
C.
Dr. Makowski Fails to Provide a Basis for His Quantifications
40.
According
to Dr. Makowski, he generated the seerningly precise ingredient
percentages in his Repofi "by visually estimating the percentage of each type of particle viewed
thrugh the microscope." (PUR_00210.) Despite the fact that Dr. Makowski repofis curiously
precise estimates of ingredient cornposition (e.g.0.2%oDehydrated Alfalfa Meal (PUR 000212)
r6
l2l
I 442v
.l
or 0.3yo Vegetable Pomace (PUR_000214)),

suggests that he performed
number next
at't examination
of Dr. Makowski's Notebook
no quantitative analysis whatsoever, other than to write down a
to an ingredient he purpor-tedly jdentified. Dr. Makowski
measures of the weight, volume, or size of the particles he purportedly
does not explain how he correlated his visual observations
does not provide
identified. Dr. Makowski
in individual fractions to the overall
composition of a finished product. Further, Dr. Makowski does not describe how his "visual
estimate" of the amounts of various ingredients supposedly present in Blue Buffalo's products
accounted
for particles identified through the use of the compound microscope instead of the
stereo microscope.
D.
Dr. Makowski Failed To Adequately Control For Error And Bias,

And Therefore I Cannot Assess The Degree Of Confidence He Has In
His Conclusions
41.
Error is inherent in all scientific measurement, and in connection with a subjective
method such as that described in the Makowski Report, error must be rigorously controlled or
minimized, and
in any event
documented
in
terms
of a "range," so that
meaningful and
scientifically valid conclusions may be drawn within the error analysis. Dr. Makowski, however,
does not describe any methods he used to control or evaluate
eror.
Specifically, Dr. Makowski
fails to explain how (or whether) he detennined an appropriate sample size, adequate number
of
measurements, or a statistical methodology to provide confidence limits to his data analysis and
presentatron.
42.
Quantitative analysis
of
heterogeneous samples (such as pet food) requires
adequate and diverse sampling from various batches and components. First, to attribute specific
features or particles to the inclusion
of a particular ingredient it is necessary to perform image
conelation or so-called "goodness of
fil" to compare the morphological characteristics of the

t1
1211442v.1
particle
to the standard for that ingredient. In
other words, the more morphological
characteristics of a particle match the standard, the greater the reliability of the attribution.2
43.
Second,
in order to quantify an ingredient within a heterogeneous sample, it
necessary to repeat this analysis over a large number of sarnples.
A large number of samples
is
and
a repeated imaging and analysis reduce the various errors associated with sampling, image
correlation, and feature/particle distribution. This is essential to mitigate effors due to random
variability (precision), systenratc bias (true or actual presence/absence) and spurious/gross errors
(mistakes). As the number of measurements increases, the various errors associated with
measurement procedures concomitantly decrease.
44.
Report),
For a quantitative distribution analysis (such as is presented in the Makowski
it is scientifically necessary, to specifz
Generally,
to
achieve
95%o
confidence
limit for the distribution of specific features, N
measurements would generally have an error
feature or particle would typically have
the error associated with such attributions.
of ./N. p'or example, 100 attributions of a specific

100/o
error rate.3 Indeed, the amounts of certain
ingredients Dr. Makowski calculates are so small that far greater than the two measurements he
conducted are necessary to tninilnize error assignment that would render the specified occurrence
scientifically valid. The Makowski Reporl, however, does not describe any effor analysis related
either to his identifications or to his quantifications.
t H. Peng; Bioimage informatics: a new area of engineering biology; Bioinformatics, Volume 24, Issue
17, Pp. 1821-1836
r Sample Preparation Techniques in Analytical Chernistly, Edited by Somenath Mitra;ISBN 0-47132845-6 (2003) John Wiley & Sons, Inc.
Ig
127 I 442v.1
V.
DR. MAKO\rySKI'S REPORT DOES NOT MBBT THE RBQUIREMENTS

FOR PUBLICATION IN A PEER REVIEWBD JOURNAL
45. I would not consider the Makowski

such as Microscopy
&
Report for possible publication in a journal
Microanalysis because his fndings are not likely to be reproducible,
primarily due to lack of details and rigor. One of the key issues in peer-review of a manuscript
for publication is that someone familiar with the field (i.e., peer) should be able to reproduce the
frndings in good faith and aruive at similar conclusions based on the information contained in the
manuscript. While some local variations or errors are expected, the scientific community
demands reasonable rigor and caution to be exercised in experiments or other work supporting a
manuscript. Further, if experimental fndings result in an identification of (unknown) features or

phenomena it is essential to provide a rationale for the identification.
46.
Dr. Makowski's Report is missing key hallmarks of appropriately designed
and
reported scientific analysis. These include:
Specimen preparation methods must be validated so as to convince the reviewer that it

would not introduce errors or modify the very contents that will be subsequently analyzed
or imaged.
Observations must be documented with sufficient details for others to reproduce and
confirm the asseftions.
Findings must be consistent across multiple measurements or experiments.
There should be multiple photographs or figures to convince reviewers of some rationale
for identifying specifc contents based on observed features. These photographs or

figures and their content should be of an appropriate quality to support the conclusions
drawn from them.
a
'When assigning specific features or attributes in the images to the presence or absence of
constituents, it is essential to provide the comparative atlas and specifically identify the
model images from which such attributions are drawn.
Error analysis, Lrncertainties, and alternative explanations need to be spelled out along
with a reasonable explanation as to how the author arrived at a specific set of conclusions
against other possibilities.
l9
727 I 442v.1
Because Dr. Makowski's Report lacks these features, it would not be appropriate for publication
in a peer-reviewed joumal, and I would reject it if it were submitted to me for consideration.
VI.
CONCLUSION
41.
Dr. Makowski's Report reveals that his method of analysis is not an
or
of
adequate
foundation
for making definitive
components
in a heterogeneous product like pet food. Moreover, Dr. Makowski's Report is so
statements about the presence
absence
lacking in detail and documentation that it fails to provide a basis for his conclusions.
I declare under penalty ofperjury that the foregoing is true
and correct.
Executed on September 6,2014.
Vinayak P. Dravid, Ph.D.
20
727
l442v.l
particular
EXHIBIT C
Source: Purina Dog Chow Website, May 12, 2014
EXHIBIT D
Source: Purina Dog Chow website, May 11, 2014
EXHIBIT E
Source: Purina Beneful website, May 11, 2014
EXHIBIT F
Source: Purina Friskies website, May 12, 2014
EXHIBIT G
EXHIBIT H
Source: Purina Fancy Feast website, May 13, 2014
EXHIBIT I
EXHIBIT J
12/4/2014
Purina: Where Honesty Is Our First Ingredient
UPDATE
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October 15, 2014
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BLUE BUFFALO FINALLY ADMITS ITS PRODUCTS MAY BE MISLABELED

ST. LOUIS, MO, October 15, 2014 - Last night, Blue Buffalo publicly revealed facts that prove the central
allegations in our false advertising lawsuit against them. Contrary to prior assurances, for the first time
VIEW THE COMPLAINT

PRESS RELEASE
TEST RESULTS
Blue Buffalo has had to admit that ingredients from at least one of their suppliers contain poultry by-
product meal. Click here for link. This is despite the fact that Blue Buffalo has repeatedly stated in
their TV commercials, their advertising, and to consumers on their website that they never use this
ingredient.
ABOUT THE NAD DECISIONS
Blue Buffalo admits this is unacceptable and it is, but Blue Buffalo is not being as transparent as
PURINAS LAWSUIT IN THE NEWS

PURINA.COM
they claim. Remarkably, it was Purina not Blue Buffalo that unearthed the truth through its
scientific testing and, more recently, from documents it obtained through the legal process from one of
Blue Buffalos ingredient suppliers. Without Purinas filing of this lawsuit, the truth would still be untold.
Blue Buffalos approach since May was to deny everything until Blue Buffalo was forced to admit it
was wrong. Changing your story only after the facts are revealed is not transparency.
What is the real truth here? Blues Chairman, Bill Bishop, repeatedly told their pet parents, I can assure
you that weve never purchased one kernel of corn or one ounce of poultry by-product meal. Why isnt
Blue Buffalo telling pet parents now that Wilbur Ellis is the same supplier that Bill Bishop blamed for
Enter your email to get the

latest pet food honesty
updates from Purina.
ingredient problems in years past? Click here for link.

Why does Blue Buffalo always have someone else to blame? Remember Blue Buffalos angry protests,
their countersuit against Purina, their charges of a smear campaign, their claims of voodoo science?
Those are tactics, not truth.
SUBMIT
The truth is that this is not someone elses problem, it is Blue Buffalos problem. It is Blue Buffalos
responsibility to know what is in their products. Amazingly, Blue Buffalos Chairman has publicly stated:
Slap on a good label, come up with a slogan, and off you go. It is this cavalier attitude that is the
problem -- an attitude that led Blue Buffalo to make irresponsible allegations of a smear campaign
against Purina instead of promptly determining the facts. These facts show that there never was any
smear campaign. If Blue Buffalos latest version of their story is to be believed, Purina knew more about
Blue Buffalos ingredient suppliers than Blue Buffalo did.
http://petfoodhonesty.com/
1/4
12/4/2014
At Purina, we have not used the Texas plant of Wilbur Ellis, formerly known as American By-Products,
Inc., in several years. This plant was unable to meet the strict quality control standards we have in
place for all of our vendors.
Blue Buffalo owes consumers an apology for all the false statements, false labels, and false
advertising. More than this, it is time for Blue Buffalo to be honest with the public and the pet parents
they profess to care so much about. A half-admission that Blue Buffalo products may contain
undeclared by-products is simply not acceptable. Pet owners deserve to know whats truly in Blue
Buffalo pet food.
UPDATE
September 19, 2014
As part of our continuing effort to ensure that honesty is the main ingredient in the marketing of pet
products,
late yesterday we
filed an amended complaint
against The Blue Buffalo Company Ltd.,
expanding the claims of false advertising to include Blue Buffalo's pet treats and cat litter. In addition,
new testing shows Blue Buffalo's LifeSource Bits actually have lower levels of some key nutrients
than their standard kibble.
In
our
amended complaint,
we also make public the results of earlier
independent testing that revealed the presence of poultry by-product meals, grains and corn in some
of Blue Buffalos best-selling products.
UPDATE 2: On November 12, 2014, Judge Rodney Sippel of the U.S. Federal District Court for the
Eastern District of Missouri accepted Purina's Amended Complaint, but decided that the cat litter
claims added to the complaint should be brought as a separate lawsuit and not be included in the pet
food false advertising case before the court. Purina has the right to file a separate lawsuit related to
Blue Buffalo's litter advertising at any time. Based on the court's order, Purina filed its Amended
Complaint, removing claims related to cat litter, on November 13, 2014.
View the full press release.
View the Second Amended Complaint.
UPDATE
Statement of Purina Regarding New Blue Buffalo Lawsuit
Blue Buffalos lawsuit today is exactly what we expected: a distraction from the real issues in the case
and an attempt to stop Purina from being honest with the public about the ingredients in Blue Buffalos
pet food.
Not only are the allegations in Blue Buffalo's complaint false, the case itself is redundant: we already
asked the federal court in St. Louis three days ago to review our website and our public statements
and rule as a matter of law that they are true.
We stand by our complaint. As detailed in our lawsuit, independent test results show that Blue Buffalo
is not being honest with pet owners about the ingredients in their pet food.
And we are not alone in making this claim. Twice over the past several years the National Advertising
Division (NAD) of the Council of Better Business Bureaus has recommended that Blue Buffalo modify
its deceptive and misleading advertising related to both their product ingredients and their
competitors.
At Purina, we believe that honesty is the most important ingredient in the relationship between pet
owners and their pet food company. That is why we have undertaken our lawsuit, and it is why we
established a website, www.petfoodhonesty.com, where pet owners can learn the truth. (May 14,
2/4
12/4/2014
2014)
UPDATE
Statement of Purina
Last week Purina filed a lawsuit detailing independent test results that show that Blue Buffalo is not
being honest about the ingredients in many of their best-selling pet foods. We also posted a website,
www.petfoodhonesty.com, so that the public can learn more about the issues in the case.
In light of public threats from Blue Buffalo to sue Purina (and even individuals at our company) for
defamation, we have amended our complaint to ask the Missouri federal court to review our website
and our public statements, and rule as a matter of law that they are not defamatory. We are
confident in the test results, which show that Blue Buffalo products contain by-products, corn and
grain exactly the opposite of what Blue Buffalo is telling consumers.
Blue, a billion-dollar company that spent more than $50 million in advertising in 2013 attacking big
name manufacturers, simply doesnt like that the truth is getting out. We believe consumers deserve
honesty, and we are not alone. Our lawsuit follows two separate decisions of the National Advertising
Division (NAD) of the Council of Better Business Bureaus recommending Blue Buffalo change
advertising it found to be misleading and disparaging against competitors.
At Purina, we believe that honesty is the most important ingredient in the relationship between pet
owners and pet food manufacturers. That is why we have filed this action, and that is why we believe
the truth will prevail. (May 12, 2014)
UPDATE
From Fox Business News: Blue Buffalo Chairman acknowledges reliance on outside, third-party
manufacturers, doesn't entirely rule out the possibility of a manufacturing snafu
To read the complete article, click here. (May 8, 2014)
UPDATE
Statement of Purina
We've seen Blue Buffalos response to our lawsuit and have the following comments:
This is exactly what we expected from Blue Buffalo, a billion-dollar company that is not being honest
about the ingredients in their pet food. As detailed in our lawsuit, it is time the truth comes out so that
pet owners can make the right choice for their pets.
For more than 85 years, Purina has been in the pet food business, and 99% of Purina pet food sold in
the United States is manufactured at Purinas own plants in the United States. By contrast, 100% of
Blue Buffalo pet food is outsourced and made by third-party manufacturers. Consumers have a right
to know who is actually manufacturing Blue Buffalo products.
We are confident in our independent testing, and we look forward to proving our case in court.
We will continue to provide updates to pet owners at www.petfoodhonesty.com. (May 7, 2014)
May 6, 2014
Dear Pet Owner,
3/4
12/4/2014
Purina believes that honesty is the most important ingredient in the relationship between pet owners
and pet food manufacturers, so that pet owners can have trust in the food they choose for their pet.
In the interest of ensuring pet owners understand what is in the pet food they buy, on May 6, Purina
filed a lawsuit in U.S. Federal District Court in St. Louis against The Blue Buffalo Company Ltd., for false
advertising. We took this action because we believe that Blue Buffalo is not being honest about the
ingredients in its pet food.
Here are some facts wed like you to know:
Blue Buffalos promotion, advertising and packaging repeatedly and unequivocally state that its pet
food products contain NO Chicken/Poultry By-Product Meals. As documented in our lawsuit,
however, testing conducted by an independent laboratory revealed that several of Blue Buffalos
top-selling Life Protection pet food products actually contain substantial amounts of poultry byproduct meal.
Independent testing also shows that Blue Buffalo LifeSource Bits contain poultry by-product meal
and corn. In addition, several Blue Buffalo products promoted as grain-free actually contain rice
hulls, despite Blue Buffalo stating on its website that its grain-free products will free your pet from
the grains and glutens that cause allergic reactions in some dogs.
Our lawsuit follows decisions against Blue Buffalo by the National Advertising Division (NAD) of the
Council of Better Business Bureaus. In March 2014, NAD found Blue Buffalos advertisements to be
misleading and disparaging against competitors products. NAD also found Blue Buffalos advertising
deceptive in a 2008 decision that recommended its superiority claims be modified and its NO
Animal By-Products claims be discontinued when referencing pet food products that actually do
contain animal by-products, such as fish meal, lamb meal and/or liver.
For more than 85 years, Purina has been putting pets first and raising the standards for pet nutrition
from innovative research, to food safety, to sustainable practices. We are invested in the quality of our
food because we are a company of pet lovers. Our principles have guided us to take this action to stop
misleading and deceptive advertising aimed at pet owners.
We encourage you to learn more about our case, Nestl Purina PetCare Company v. Blue Buffalo
Company Ltd., Civil Case No. 4:14-cv-00859 and the NAD decisions. View the press release.
At Purina, what goes in the bag goes on the label.
From the Pet Lovers at Purina
All trademarks are owned by Socit des Produits Nestl S.A., or used with permission.
PRIVACY POLICY
TERMS AND CONDITIONS
CA TRANSPARENCY IN SUPPLY CHAINS ACT ABOUT OUR ADS
4/4
Case: 4:14-cv-00859-RWS Doc. #: 113-10 Filed: 12/04/14 Page: 6 of 11 PageID #: 3052
12/4/2014
About the NAD Decisions
UPDATE
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On August 21, 2014, an appellate panel of the National Advertising Review Board (NARB) upheld the
March 25, 2014 NAD decision described below, determining that Blue Buffalo's advertising claims
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targeting other pet food companies were unsupported and recommending Blue Buffalo Company
discontinue and/or modify such claims. Blue Buffalo stated that it will abide by the NARB and NAD
HOME
recommendations in future advertisements.
VIEW THE COMPLAINT

PRESS RELEASE
TEST RESULTS
The original complaint was filed by Hill's Pet Nutrition, Inc., manufacturer of Hill's Science Diet.
View the
NARBress
p release.
On March 25, 2014, the National Advertising Division (NAD) of the Council of Better Business Bureaus

PURINA.COM
found the advertisements of Blue Buffalo Company, Ltd., manufacturer of BLUE Brand Pet Food
Products, to be falsely disparaging to competing pet food companies. Hills Pet Nutrition, Inc.,
manufacturer of Hills Science Diet, challenged the advertisements, bringing them to NADs review.
NAD has subsequently recommended that Blue Buffalo modify its claims.
The advertisements examined included television, web, print, and mobile, that expressed claims such
as:
It takes a lot to get me mad, but it really hit me when I realized that his big name dog food had
chicken by-product meal as a first ingredient not real meat. It felt like they fooled me, so I switched

Leo to Blue Buffalo.

If you are feeding one of the big-name brands, chances are youre in for a big let-down.
Pet parents are learning the truth about the ingredients in some of the leading dog food brands. Dont
be fooled by the big name dog food brands.
SUBMIT
NAD also reviewed the online True BLUE Test that compares Blue Buffalo pet foods against
competitors. Products are rated on five ingredient factors: (1) ALWAYS Has Real Meat as the First
Ingredient; (2) ALWAYS Includes Veggies and Fruit; (3) NEVER Has Chicken (or Poultry) By-Product
Meals; (4) NEVER Has Artificial Colors, Flavors or Preservatives; and (5) NEVER has Corn, Wheat or
Soy. In the True BLUE Test, Blue Buffalo is supposedly the only brand to meet all of these conditions.
http://petfoodhonesty.com/about-NAD-decisions.php
1/2
12/4/2014
According to the NAD decision, the shock and disappointment of actors in the commercials, along with
the presentation of the surprising results from the True BLUE Test, convey the message that
competing big-name pet food companies are deceiving consumers. Additionally, the True BLUE
Test does not take into account that some products within competitor brands are completely free of
chicken by-product meal, thereby rendering the results as factually incorrect. NAD found the
challenged advertisements to contain inaccuracies and implied messages and recommended that Blue
Buffalos advertisers correct the advertisements by removing all disparaging and inflammatory
messages about competitor brands.
The March NAD decision is the second decision in which Blue Buffalo has been found to engage in
deceptive advertising. In 2008, NAD reviewed claims of superior nutritional value, human grade
ingredients, and NO Animal By-Products in reference to pet food products actually containing animal
by-products, such as fish meal, lamb meal and/or liver. NAD recommended these claims be modified
or discontinued. After an unsuccessful appeal to the National Advertising Review Board (NARB), Blue
Buffalos advertisers complied, removing the claim of NO Animal By-Products when inaccurate.
As an investigative service of the advertising industry and Council of Better Business Bureau, NADs
mission is to review claims in national advertising campaigns for truthfulness and accuracy.
Compliance is voluntary and advertisers support NAD to ensure transparency in the advertising
industry. Blue Buffalo agreed to modify the True BLUE Test and will appeal the remaining
recommendations to the NARB.
The full March 25, 2014 NAD decision is listed as Exhibit A of the Purina complaint.
PRIVACY POLICY
http://petfoodhonesty.com/about-NAD-decisions.php
2/2
12/4/2014
3056
Losing Market Share, Big Three CPGs Shift Battle to Court
Purinas Lawsuit
in the News
Ad Age
December 1, 2014
Blue Buffalo is not a small company, said Nestle Purina CMO Steven Crimmins, noting that it has a
billion dollars in sales, is owned by a multi-billion-dollar private-equity firm and last year spent $50
million in advertising.
VIEW ARTICLE
In Court Fight Over Dog Food, Poultry Byproduct Plays the Role of
Smoking Gun
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Bloomberg Businessweek
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November 24, 2014

HOME
The fight took a surprising turn last week as a federal judge in St. Louis unsealed e-mails that Purina
VIEW THE COMPLAINT
claims will support the larger companys allegation that Blue Buffalo misleads customers intent on
feeding their beloved animals the healthiest-possible chow.
PRESS RELEASE
CLICK HERE FOR COURT FILING.
TEST RESULTS
VIEW ARTICLE

PURINA.COM
Blue Buffalo Says Supplier Mislabeled Pet Food Ingredient

Veterinary Practice News
October 16, 2014
Blue Buffalo Co. acknowledged this week after months of denials that some of its pet food may have

SUBMIT
contained poultry byproduct meal because of a labeling mix-up involving a supplier.

VIEW ARTICLE
Blue Buffalo says supplier mislabeled some ingredients

St. Louis Post-Dispatch
October 15, 2014
Blue Buffalo Co. says a supplier's mislabeling of ingredients may have caused some of its pet food
products to contain poultry by-product meal. The revelation comes as Blue Buffalo is in the midst of a
legal battle over false advertising allegations lodged by St. Louis-based Nestl Purina PetCare, the
nation's largest pet products company and maker of Beneful, Friskies and other brands.
VIEW ARTICLE
http://petfoodhonesty.com/news.php
1/2
12/4/2014
Purina expands false advertising claims against rival Blue Buffalo

St. Louis Post-Dispatch
September 19, 2014
Nestl Purina PetCare has expanded its lawsuit against The Blue Buffalo Co. to include new false
advertising allegations in its rival's pet food, treats and cat litter marketing.
VIEW ARTICLE
Blue Buffalo, Purina in ad dispute

Rivet News Radio
August 28, 2014
Misleading advertising charges have Blue Buffalo, the upstart pet food company, on the defensive,
according to Businessweek.
VIEW ARTICLE
Pet Food Fight: Ad Industry Review Board Smacks Blue Buffalo

Bloomberg Businessweek
August 26, 2014
Blue Buffalo, a fast-growing upstart in the high-end pet food market, has backed down in response to a
competitors accusation that it made misleading advertising claims.
VIEW ARTICLE
< PREVIOUS
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http://petfoodhonesty.com/news.php
2/2
EXHIBIT K
Case: 4:14-cv-00859-RWS Doc. #: 113-11 Filed: 12/04/14 Page: 2 of 3 PageID #: 3059
EXHIBIT L
Source: www.facebook.com/purina (May 12, 2014)
EXHIBIT M
REDACTED
REDACTED
EXHIBIT N
Source: Purina Beneful Website, May 13, 2014
Source: Purina Fancy Feast Website, May 13, 2014
Source: Purina Cat Chow Website, May 13, 2014
Source: Purina Dog Chow Website, May 13, 2014
EXHIBIT O
EXHIBIT P
REDACTED
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Copyright Infringement | Terms and Conditions for User-Generated Content | Privacy Policy | About Our Ads
This e-mail message has been scanned for Viruses and Content and cleared by MailMarshal
EXHIBIT Q
EXHIBIT R
Source: www.google.com search results, May 12, 2014
EXHIBIT S
EXHIBIT T
Nestl Purina PetCare

North America
1 CHECKERBOARD SQUARE
ST. LOUIS MO 63164-0001 USA
TEL: + 1 (314) 982 1000
May 12, 2014
Mr. William W. Bishop, Jr.

Pres. & Chief Operating Officer
The Blue Buffalo Co.
11 River Road
Wilton, Connecticut 06897
Re:
Your Letter Dated May 9, 2014
Dear Mr. Bishop:

Thank you for your letter dated May 9, 2014. Your letter asks for copies of the testing
referenced in Purinas Complaint against Blue Buffalo that was filed on May 6th for, among
other things, false advertising. Purina does possess the testing and corresponding results
and would not have filed its lawsuit against Blue Buffalo without first confirming that the
test results establish that Blue Buffalos products contain chicken by-product meal, corn,
and other ingredients that Blue Buffalo claims and represents to consumers are never
present in its products.
As your lawyers may have already informed you, this lawsuit is governed by the
Courts discovery procedures that apply evenhandedly to both Blue Buffalo and
Purina. Your request seeks to alter that balance. Blue Buffalo and Purina will have the right
to exchange information and participate in discovery according to the Missouri Federal
Courts procedural rules and schedule. Purina will provide Blue Buffalo with the relevant
test results at the appropriate time under the Courts rules, procedures, and orders. It
would seem that Blue Buffalo should have access to the ingredients contained in its own
products? If not, given what Purina discovered via its testing, we suggest that Blue Buffalo
undertake a scientific analysis of the various meal ingredients used by the companies that
Blue Buffalo contracts with to manufacture Blue Buffalos products.
Nestl Purina PetCare

North America
1 CHECKERBOARD SQUARE
ST. LOUIS MO 63164-0001 USA
TEL: + 1 (314) 982 1000
Finally, as we believe your company is or will be represented by counsel in this

lawsuit, please have all future communications regarding this matter directed to our
counsel. Thank you very much.
Very truly yours,
Keith Schopp
Vice President, Public Relations
Nestle Purina PetCare Company
EXHIBIT U
Page 1 of 1
Nestle 'wins' German false advertising award

Published: Oct. 1, 2014 at 9:31 AM
Ben Hooper
BERLIN, Oct. 1 (UPI) --BERLIN, Oct. 1 (UPI) -- A German group gave a sugar-packed Nestle baby food the "Golden
Cream Puff" false advertising prize, with second place going to a chicken soup with no chicken.
The Foodwatch group said nearly 160,000 Germans voted from a list of five finalists to award the "Golden Cream Puff"
prize, Goldene Windbeutel, which also means "windbag" in German, to Nestle for the "Alete" liquid baby food, which is
advertised as rich in calcium and vitamin D.
The food, which bears the image of ears of corn on its packaging, is actually extremely high in sugar, Foodwatch said.
"These high calorie liquid meals lead to overfeeding and tooth decay. Doctors have been warning against them for a long
time," the group said.
Foodwatch said the second place finisher in the "Golden Cream Puff" vote was a Knorr brand "Chicken Soup," manufactured
by Unilever, that doesn't actually contain any chicken. The packaging also claims the product does not contain any additives,
but Foodwatch said it does contain a flavor enhancer.
Coca-Cola's Glaceau Vitaminwater was the third place finisher in the vote, with Foodwatch saying that despite health claims
on the product's website, it is "cheap water pepped up with flavorings, colorings and added vitamins," making it "a typical
'functional food' product invented to suck money out of consumers' pockets."
The other two items making the watchdog's top five were Mondelez Belvita "breakfast biscuits," which indicate on their
packaging that they are a healthy breakfast food but actually contain an unhealthy amount of sugar, and Coop's "Our North"
organic apple juice, which is advertised as containing apples "from the region" but is not actually manufactured from apples
grown in northern Germany.
2014 United Press International, Inc. All Rights Reserved.
http://www.upi.com/Odd_News/2014/10/01/Nestle-wins-German-false-advertising-award/... 12/3/2014
EXHIBIT V
From:
Sent:
To:
Subject:
Attach:
Darwin Rusu
</O=WECO/OU=WECOCBC/CN=RECIPIENTS/CN=DRUSUl 7807 459>
Thursday, May 15, 2014 12:37 PM
Terry Odland <TOdland@wilburellis.com>
FW: QA Questions
QTS 007 Supplier Ingredient Information Request Form v3 Wilbur Ellis - C .... pdf
-----Original Message----From: Collin McAtee [mailto:cmcatee@diversifiedingredients.com]

Sent: Thursday, May 15, 20149:14 AM
To: Darwin Rusu
Subject: FW: QA Questions
Importance: High
I think it's overdue that you and I talk. Can I call you? We have millions of dollars at stake here and need to
work this out. This is year 3 that we've done the Blue Buffalo business through Rosser. Before it was Wilbur,
the product was just called Chicken Meal. When Wilbur took over, I was told that for Wilbur to cover
themselves for trace amounts of Byproduct meal, you would refer to it internally as blend because the AAFCO
definition for Chicken Meal does not allow for any traces of byproduct and you could have some crosscontamination, etc. However, Blue's spec calls for an allowance for unavoidable amounts with good
manufacturing practices. Wilbur was well aware of where these products were being shipped and signed spec
sheets and went through 2 different audits with Blue. There was no mention of having more than trace amounts
of Byproduct Meal in it and especially no mention of any feathermeal. I don't know how much of those items
were in it. The Rosser shipments could or could not be the reason for Nestle's claim that Blue's product was
found to have Byproduct Meal in them. In either sense, if Chicken By and Feather were listed as even potential
ingredients for the Chicken Meal and/or Turkey Meal, there's no way we would've bought it and/or Blue
would've agreed to that.
I think if we work together, we can band-aid this situation. I knocked the original contracted volume down
significantly to fill the contracts to finish out the year for chicken and turkey. We need to wrap this up please
and move forward on the right foot. If you are not going to fill these contracts for any reason, then I'm going to
have to go to Blue to address the breach of contract and undoubtedly divulge the details of what was shipped
and the possibility that Rosser's material is the smoking gun for their problems. That I do not want to do. If the
finger is pointed in that direction and then later verified to have been the cause, then Diversified and Wilbur will
both have to answer to this in litigation with Blue. The liabilities in this could be enormous. You are talking
about massive product recalls, potential market share loss, etc. That would undoubtedly be in the several million
dollars range. So please let me give you a call or email me back to sort this out.
I have several trucks currently at Rosser waiting to be loaded, and we need to move forward with filling out the
rest of the contracts (at the lesser volumes I've worked out to help) to keep things going smoothly. Please email
me back right away, or what would be better is if we can talk about this over the phone. My direct line is 636200-9013.
Best Regards,
Collin McAtee
Diversified Ingredients
Ph: 800-727-1267
Fax: 636-200-9033
WE0000325
-----Original Message----From: Collin McAtee

Sent: Monday, May 12, 2014 7:57 AM
To: 'Darwin Rusu'
Subject: RE: QA Questions
Importance: High
Good morning. The contracts themselves are pretty vague. That's why there is a great deal of accompanying
paperwork, audits, etc to go along with it. That's what keeps guys like Aaron and Henry so busy all the time!
You can see the descriptions for the products on the tech sheets and spec sheets in the attached information. The
Chicken and Turkey Meal Blends you produce at Rosser and sell to me for shipment to Blue Buffalo should be
exclusive of feathers, heads, feet and entrails; except in such trace amounts which may occur unavoidably in
good manufacturing practices.
Per the spec sheets and documentation provided and agreed upon by Diversified, Wilbur, and Blue Buffalo,
there is only an allowance for trace amounts. Please make sure on your side, that is what's happening. Please
check raw material sources, potential cross contamination points, etc. Shipping material with more than
unavoidable trace amounts of feathers, heads, feet or entrails would be out of specification, and we need to
double check everything to make sure moving forward we're all in check.
If you'd like to give me a call to discuss, please do so. My direct line is 636-200-9013. Let's make sure we're all
on the same page so we can continue this business.
Thanks and have a great day!

Collin McAtee
Ph: 800-727-1267
Fax: 636-200-9033
-----Original Message----From: Darwin Rusu [mailto:DRUSU@wilburellis.com]

Sent: Friday, May 09, 2014 8:30 PM
To: Collin McAtee
Subject: RE: QA Questions
Colin,
Doug Haning forwarded your inquiry to me regarding the products we supply to you. We have only had time to
pull a random sample of the documentation, but based on our review of these documents, to the best of our
knowledge the products we have supplied to you meet the specifications agreed upon, as reflected in our
contracts.
Darwin
-----Original Message----From: Collin McAtee [mailto:cmcatee@diversifiedingredients.com]

Sent: Tuesday, May 06, 2014 2:32 PM
WE0000326
To: Aaron Williams

Subject: QA Questions
A few questions for you ....... .
I) What sort of Quality Control procedures does Wilbur/Rosser have in place to check that the Chicken Meal
and Turkey Meal that are shipped in to you that you blend and then ship out are "exclusive of feathers, heads,
feet, and entrails"? Nestle has filed a lawsuit against Blue Buffalo saying that their ad campaign that their pet
foods "do not contain byproducts" is false advertising because of some corn, rice hulls, and chicken/poultry
byproduct meal allegedly found in independent lab studies of Blue's finished pet food. Nestle is losing a great
deal of market share and trying to discredit Blue. How do we guard against "byproduct" parts in the Chicken
and Turkey Meal either in the raw material you are bringing in and/or finding it's way into the product at your
place through some cross contamination, etc before being shipped out?
Rosser is not the sole supply of Turkey or Chicken to Blue. They use Turkey and Chicken Meal both from
Darling, as well as bring in mechanically separated chicken and turkey from multiple suppliers. So if there is
contamination with "byproduct meal", it could come from a number of sources, but I want to get out ahead of
this and get these answers for Blue's QA on our Turkey and Chicken Meals we are supplying and what controls
we have in place.
2) Do any of your raw material suppliers use BHA or BHT on the material prior to you getting it, or just
Naturox only? I haven't had any residual BHA or BHT show up on your loads, but I'm just checking anyway.
Thank you,
Collin McAtee
Ph: 800-727-1267
Fax: 636-200-9033
WE0000327
EXHIBIT W
From:
Sent:
To:
Subject:
Henry Rychlik <HRYCHLIK@wilburellis.com>

Tuesday, May 6, 2014 2:36 PM
Doug Haning <DHANING@wilburellis.com>
RE: Purina sues Blue Buffalo for false advertising, disparagement
A can of worms about to be unleashed ......... .Shit gonna hit the fan.
How long can we tie this up in court.
From: Doug Haning

To: Henry Rychlik
Subject: Fwd: Purina sues Blue Buffalo for false advertising, disparagement
Doug Haning
Begin forwarded message:
From: Chris Hom <Chris.Hom@pilgrirns.com>
Date: May 6, 2014 at 12:33:08 PM CDT
To: Doug Haning <R_ffANJN_Q@_\Yi!l?!!r_~!Jj-~,Q!!l_>
Subject: Fwd: Purina sues Blue Buffalo for false advertising, disparagement
Sent from my iPhone

From: Teresa Shafer <Teresa.Shafer@pilgrirns.com<mailto:Teresa.Shafer@pilgrirns.corn>>
Date: May 6, 2014 12:04:45 PM CDT
To: Billy Nelson <Billy.Nelson@pilgrirns.com<mailto:Billy.Nelson@pilgrirns.corn>>, Brandon Lairmore
<Brandon.Lairmore@pilgrirns .corn <mailto:Brandon.Lairmore@pilgrirns .corn>>, Chris Hom <Chris.Hom@pilgrirns.com <mailto:Chris.Hom@pilgrirns.com>>,
Dan Craig <Dan.Craig@pilgrirns.com<mailto:Dan.Craig@pilgrirns.corn>>, Daniel Yepez <Daniel.Yepez@pilgrirns.com<mailto:Daniel. Y epez@pilgrirns.com>>,
Doug Brown <QQ!!gJ?XQ_'Y!!@p_i\grjm_~,Q!!! <m!!i!tg;_RgQg,)2rg_w11@pi!gr_im_~,2Q!!!>>, Gary Reddell
<QiD:J1~_c_l_c_l_~!!@Ri!grim~,-~Q!!!<!!!_'1.iJ_tQ~Q'1_1J'.J~-~M2!!@Ri!g[i_gi_~,2Q!!!>>, Glen Christopher
<Glen. Christopher@pilgrirns. corn <mailto: Glen. Christopher@pilgrirns. corn>>, Greg Taturn <Greg. Taturn@pilgrirns. corn <mailto: Greg. Taturn@pilgrirns. corn>>,
Hal Davis <Hal.Davis@pilgrirns.com<mailto:Hal.Davis@pilgrirns.corn>>, James Emerson
<Jarnes.Ernerson@pilgrirns.com<mailto:Jarnes.Ernerson@pilgrirns.corn>>, Jerri Ann Ellington
<JerriAnn.Ellington@pilgrirns.com<mailto:JerriAnn.Ellington@pilgrirns.corn>>, Joel Liggett <Joel.Liggett@pilgrirns.com<mailto:Joel.Liggett@pilgrirns.corn>>,
Joshua Hatfield <Joshua.Hatfield@pilgrirns.com<mailto:Joshua.Hatfield@Rilgrirns.corn>>, Mitch Bums
<Mit2hJ?_11rn~_@pj_lzi:im~,2gm_<m11_i\tQ~Mit9_l_i._._~!!rn~@pi\grj_m_~,Q!!!, "Rebecca Deveau (JBS US)"
<R~l?-~9_'1,_R_~Y!"llc!!@il?_~~-"'-~Q!!! <m_11j_IJQ~R~l?!"9_'1,P2v2'1cll@il?c".~_'1,2Q!!!> >, Regina Standridge
<Regina. Standridge@pilgrirns. corn <mailto :Regina. Standridge@pilgrirns. corn>>, Robert Canty
<Robert. Canty@pilgrirns. corn <mailto :Robert. Canty@pilgrirns. corn>>, Tara Martin <T ara.Martin@pilgrirns. corn <mailto: Tara.Martin@pilgrirns. corn>>, W illiarn
W elbom <W illiarn. W elbom@pilgrirns.com <mailto: William. W elbom@pilgrirns .corn>>
Cc: "_QA Directors and Sr. Mgrs" < QADirectorsandSr.Mgrs@pilgrirns.com<mailto:QADirectorsandSr.Mgrs@pilgrirns.corn>>
Subject: Purina sues Blue Buffalo for false advertising, disparagement
Purina sues Blue Buffalo for false advertising, disparagement
http://www.petfoodindustry.com/Purina sues Blue Buffalo for false advertising, disparagement.html
Independent testing found evidence of false nutritional claims, according to Purina
Release Date: Tuesday, May 06, 2014 Cornrnents(O)
<http://www.petfoodindustry.com/Purina sues Blue Buffalo for false advertising, disparagernent.htrnl#cornrnentsection>
Nestle Purina PetCare Cornpany<httQs://www.purina.com/> has filed a lawsuit<http://www.petfoodhonesty.com/> in federal court in St. Louis, Missouri, against
The Blue Buffalo Company Ltd.<l)._ttpl!~,)?l!!~-1?_11_ffo!Q,Q!!!>, for false advertising, disparagement and unjust enrichment-including violations of the Federal
Lanham Act (15 U.S.C. 1125(a)).
test
Blue Buffalo's promotion, advertising and packaging state that its petfood products contain "No Chicken/Poultry By-Product Meals." In its complaint, Purina
alleges that testing conducted by an independent laboratory found that several of Blue Buffalo's "Life Protection" petfood products contained significant
percentages of poultry by-product meal. Testing was done from samples of multiple formulas of Blue Buffalo petfood purchased at retail stores on both the East
and West Coasts, says Purina. Independent testing also showed that Blue Buffalo "Life Source Bits" contain poultry by-product meal and com, and several Blue
Buffalo products promoted as "grain-free" actually contain rice hulls, according to the company.
The lawsuit follows a March 2014
decision<http://www.petfoodindustry.com/National Advertising Division recommends Blue Buffalo modify claims to avoid disparaging competitors.html>
of the National Advertising Division (NAD) of the Council of Better Business Bureaus, which found that Blue Buffalo is engaging in misleading advertising
practices with respect to its claims about competing products. The NAD decision recommended that Blue Buffalo correct its television ad campaigns by removing
all of its allegations that Blue Buffalo's competitors are misleading consumers.
test
Teresa Shafer
Quality Assurance
Protein Conversion
New Office: 540-901-6070
Cell Phone: 540-421-2898
Rightfax: 972-290-2853
email: Teresa. Shafer@pilgrirns. corn <mailto: Teresa. Shafer@pilgrirns. corn>
WE0000292
EXHIBIT X
From:
Sent:
To:
Subject:
Cory Salter </O=WECO/OU=WECOCBC/CN=RECIPIENTS/CN=CSAL TER>

Ronal dSal ter <ronal dsal ter@comcast.net>
RE: yikes
Yeah its going to be bad if this gets traction. It will hurt bad. Im sure 50% of our rosser shit goes to them indirectly not
good
From: RonaldSalter [mailto:ronaldsalter@comcast.net]

To: Cory Salter
Subject: Re: yikes
Ouch that could hurt, I am sure you have seen the advertisements I would have to agree with Nestle it is false
advertising.
RGS
From: "Cory Salter" <CSalter@wilburellis.com>
To: "Salter, Ronald" <ronaldsalter@comcast.net>
Sent: Tuesday, May 6, 2014 1:21:13 PM
Subject: yikes
Nestle Purina PetCare Co. filed suit Tuesday against Blue Buffalo Co. Ltd., accusing its competitor of
misleading consumers about the ingredients in its dog and cat foods.
The lawsuit accuses Wilton, Connecticut-based Blue Buffalo of false advertising, disparagement and
unjust enrichment. It was filed in U.S. District Court in St. Louis, where Purina is based.
Messages seeking comment from Blue Buffalo were not immediately returned.
The pet food industry in recent years has seen a trend toward premium foods, with consumers showing
more willingness to spend more on food perceived to be better for their animals. Sales of more expensive
brands rose 68 percent from 2002 to 2012, compared with 19 percent for mid-priced brands and 8 percent
for economy brands, according to Euromonitor International.
Nestle Purina has been part of the trend, reporting solid growth in its high-end "made with natural
ingredients" Beyond line.
Blue Buffalo advertises that its pet foods contain natural ingredients and do not contain chicken or poultry
byproduct meals. The company also says the pet foods do not contain corn, wheat or soy -
potential
allergens for some pets.

The suit claims that testing by an independent lab and funded by Purina showed that several Blue Buffalo
WE0002670
products contained "significant" percentages of poultry byproduct meal and corn. The suit also says
several products promoted as "grain-free" contain rice hulls.
"Despite Blue Buffalo's massive marketing barrage, Purina has discovered that Blue Buffalo the 'big name' pet food manufacturers Blue Buffalo routinely criticizes in its advertising -
and not
is concealing
the truth about the ingredients in its products," the lawsuit states.
The lawsuit asks the court to force Blue Buffalo to run corrective advertising to show that its products
contain chicken byproducts, and to pay damages to Nestle Purina "for all gains, profits, savings and
advantages obtained by Blue Buffalo as a result of its false advertising and unfair competition."
Nestle Purina PetCare is the nation's largest pet food maker. It is a unit of Nestle, the Swiss-based food
and drinks company.
Cory Salter
Business Unit Manager - Grains and Vegetables
Wilbur-Ellis
Feed Division
950 Tharp Rd suite# 602
Yuba City Ca. 95993
T 530.755.0693
c 530.218.4682
F 530. 755.1161
csalter@wilburellis.com
www.wilburellis.com
WE0002671
EXHIBIT Y
From:
Sent:
To:
Subject:
Tomas Belloso </O=WECO/OU=EXCHANGE ADMINISTRATIVE GROUP

(FYDIBOHF23 SPDL T)/CN=RECIPIENTS/CN=TBELLOSO>
Wednesday, May 7, 2014 1:02 PM
Troy Hackett <THACKETT@wilburellis.com>; Eric Johansen
<EJohansen@wil burelli s. com>; Richard Lange (rlange@WilburElli s. com)
RE: Article - You might already be aware ...
Thanks! Hopefully this will open some eyes around here ... Especially if Purina ends up winning!
From: Tomas [mailto:tibelloso@hotmail.com]

To: Tomas Belloso
Subject: Fwd: Article - You might already be aware ...
Sent from my iPhone

From: Troy Hackett <THACKETI@wilburellis.com>

Date: May 6, 2014 at 1:42:30 PM PDT
To: Richard Lange <RLANGE@wilburellis.com>, "tomas belloso (tibelloso@hotmail.com)"
<tibelloso@hotmail.com>, Eric Johansen <EJohansen@wilburellis.com>
Subject: Article - You might already be aware ...

http:ljwww.foxbusiness.com/industries/2014/05/06/purina-accuses-rival-blue-buffalo-misleadingconsumers/
Troy M. Hackett
Vice President Enterprise Risk Management & Process Development
Wilbur-Ellis Company
345 California Street, 27th Floor
San Francisco, CA 94104
thackett@wilburellis.com
WE0004112
EXHIBIT Z

Thursday, May 8, 2014 10:29 AM
Darwin Rusu <DRUSU@wilburellis.com>
Fwd: Qs on By Products
From:
Sent:
To:
Subject:
Doug Haning
From: Collin McAtee <cmcatee@diversifiedingredients.com>
Date: May 8, 2014 at 8:57:18 AM CDT
To: Doug Haning <DHANING@wilburellis.com>
Subject: FW: Qs on By Products
They are all coming with the questions. See below. Mishawaka is now asking for confirmation that their Turkey
loads do not contain any ByProducts as well. I can't stress enough to make sure we are all on the same page
here.
Collin McAtee
Ph: 800-727-1267
Fax: 636-200-9033
From: Steve Westfall
Sent: Thursday, May 08, 2014 8:55 AM

To: Collin McAtee
Subject: Fwd: Qs on By Products
Steve Westfall
Diversified Ingredients, Inc
Sent from my iPhone
From: Digvijay Gurung <dgurung@wellpet.com>
To: Steve Westfall <swestfall@diversifiedingredients.com>
Subject: Qs on By Products
Dear Steve,
I'm sure that you have by now heard about the lawsuit between Nestle Purina & Blue Buffalo with regards to
use of By Products in Blue Buffalo products.
As a matter of due diligence, WellPet would like to confirm there is no exposure to our business related to
by products. As your company is a major vendor of ingredients that have a "by product variant", this is a
courtesy e mail for you to confirm that there are no by products in the Turkey Meal that Diversified
Ingredients sells to Well Pet.
I would appreciate a quick response on this matter.
Best regards,
WE0000378
Dig
http://www.petfoodindustry.com/Purina sues Blue Buffalo for false advertising, disparagement.html
Digvijay Gurung
Commodities
200 Amos Pond Ddvc, Tewksbury, MA. 01.8761 www.wellpet.com
We 11 Pet
at the heart of all we do
WE0000379
EXHIBIT AA
From: Fox Ne~ric Johansen </O=WECO/OU=EXCHANGE ADMINISTRATIVE GROUP

~~~:0uJPW>I BOHF23SPDLT)/CN=RECI Pl ENTS/CN=EJOHANSEN>
Sent: Fox N~~c119iay, May 8, 2014 10:34 AM
Fox Ne~yr@dland <TOdland@wilburellis.com>; Cory Salter <CSalter@wilburellis.com>; Darwin Rusu
To:
Subjec;~~ ~=~~~~~~~~i~~v'~t~li~j~~~:ffaio Fires Back at Purina Over Food-Quality Ciairn Fox Business.htrn
.The fun has begun. WellPet is now asking us questions. We best be ready as a group.
>.< Fox Business - The Power to Prosper
S.<021r~~ S.1ti=.S.i=21r~h. S.t()ck~.1'. K_ef:''Af.Or~s[S.earchJ ..
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Pet Wars: Blue Buffalo Fires Back at Purina Over FoodQuality Claim
By Adam Samson
Published May 07, 2014
FOXBusiness
bluebuffalo.png
There's a war brewing in the pet-food kingdom.

Nestle's Purina PetCare -- a mainstay in the pet-food realm -- sued its smaller competitor Blue Buffalo Tuesday for allegedly misleading customers on claims about ingredients
in its foods.
At the kernel of the case is a claim by St. Louis, Missouri-based Purina that Blue Buffalo's dog foods do in fact contain animal by-products, corn and other items that its
advertising specifically says the company forbids. If substantiated, the accusations could deal a powerful blow to the fledgling firm that has based its success on transparency
about the ingredients it uses.
In an exclusive interview with FOX Business, Blue Buffalo's founder and chairman, Bill Bishop, aggressively fired back at the pet-food powerhouse.
Bishop, whose career took roots in the advertising sector, painted a story of David vs. Goliath. In his view, Purina is trying to wreck its much smaller rival by leveraging its size
and legal team.
"We became the fastest growing pet food ... (and it) really pissed off a lot of bigger companies," he said in the telephone interview. "We find ourselves at a place where our
friends at Nestle are [in] the 'if you can't beat them, sue them"' mindset.
Purina, which was founded in the late 19th century as a seed company and then turned into a pet food producer in the 1920s, is a unit of Swiss-based Nestle, which has a
market capitalization of around $250 billion. Blue Buffalo was founded about 12 years ago, and while Bishop declined to specify exactly how large the privately-held firm is, he
said it's about one hundredth the size of Nestle's value.
Blue Buffalo has gone head-to-head against Purina and other mainstream dog brands. The Wilton, Conn.-based company markets its foods as being free of animal byproducts, corn, and various other grains that are commonly used in animal foods.
Bishop founded the company after his dog Blue, an Airedale Terrier, was diagnosed with cancer. He previously had success as one of the founders of the SoBe beverage
company. Blue Buffalo's claim isn't so much based on the nutritional quality of the food, but about the transparency of the ingredients.
"We advertised very aggressively on the basis of you should really know what's in your pet's food," he said. "We tapped into a broad-based trend 'if you love your pet like family,
you want to feed them like family."'
'Weird Science' or Searing Indictment?
Purina's allegations that Blue Buffalo has misled customers about its ingredients strike at the very core of the company.
Bishop alleged Purina's laboratory results were "based on some kind of weird science." He categorically denied Purina's allegations and said the pet-food company didn't reach
out to Blue Buffalo before hitting it with a lawsuit in federal court.
"We haven't purchased one kernel of corn, nor have we bought one ounce of by-product meal," he said, noting that he can't imagine how Purina's independent lab tests found
any of the substances in the foods.
Blue Buffalo uses third-party co-manufacturers to produce its foods, but Bishop said the company provides all of its own ingredients. Bishop said, however, that he trusts his
WE0000419
manufacturers and that his firm has "people watching the manufacturers" closely for quality-control purposes.
Still, Bishop wouldn't entirely rule out the possibility of a small-scale snafu at the manufacturer level.
"Could anything happen with one isolated incident?" he asked, "Possibly, but it's really unlikely."
He also noted that the company is currently working on developing its own manufacturing facilities.
Keith Schopp, a spokesperson at Purina, shot back at Bishop: "This is exactly what we expected from Blue Buffalo, which isn't being honest about the quality of the ingredients
in its pet foods," he said in a statement.
Schopp also responded to Bishop's assertion that Purina's lab results represented voodoo science, saying "we are confident in our independent testing and we look forward to
proving our case in court."
Bishop vowed to "respond aggressively" to Purina's legal suit, although he didn't say whether the company would counter-sue.
Stuck in the Middle
Another side of this war in the pet space is that it places pet-store chains in an awkward position between two feuding suppliers whose items they stock. For now, it appears the
major brands are sticking on the sidelines.
Lisa Epstein Stark, a spokesperson for Petco, said the firm prefers not to comment on the matter. While Erin Gray, who represents PetSmart, said, "as a practice, PetSmart
does not comment on pending litigation." She added that the firm will be "monitoring the litigation closely and will take next steps as appropriate."
Incidentally, Petco is teaming up with Blue Buffalo on Pet Cancer Awareness Month in May, in which the duo is looking to gather $2 million in donations for research on the
subject And Blue Buffalo actually initially launched its brand in PetSmart's stores, according to Bishop.
The market for pet food has blown up in recent years. Nestle saw sales of about $12.83 billion in its pet care division globally last year, with organic growth of 6.8%, according to
regulatory filings.
The American Pet Products Association estimates $22.62 billion will be spent by Americans on pet food this year, up from $21.57 billion last year. The trade group's data show
total U.S. spending on pets has surged some 244% to $58.51 billion over the past 10 years.
Follow Adam Samson on Twitter @adamsamson.
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WE0000422
EXHIBIT BB
Darwin Rusu
</O=WECO/OU=WECOCBC/CN=RECIPIENTS/CN=DRUSUl 7807 459>
Thursday, May 8, 2014 10:53 AM
Cory Salter <CSalter@wilburellis.com>
RE: Nestle law suit
From:
Sent:
To:
Subject:
He is fucked.
From: Cory Salter
To: Darwin Rusu
Subject: Re: Nestle law suit
This is not good we need to shut the fck up and stay clean
What was he thinking?
Sent from my iPhone
On May 8, 2014, at 9:51 AM, "Darwin Rusu" <DRUSU@wilburellis.com> wrote:
Can't believe this!!!
From: Cory Salter
To: Darwin Rusu
Subject: Fwd: Nestle law suit
Brent needs to stop. Wtf

Sent from my iPhone
From: Brent Quintin <BQuintin@wilburellis.com>

To: Rob Fullerton <rfullerton@wilburellis.com>, Jeff Cej <JCEJ@wilburellis.com>,
Terry Odland <TOdland@wilburellis.com>, Darwin Rusu
<DRUSU@wilburellis.com>, Cory Salter <CSalter@wilburellis.com>
Subject: FW: Nestle law suit
FYI
From: Brent Quintin

To: 'Bill Behnken'; Ray Bialick
Subject: RE: Nestle law suit
Bill, comments noted and agreed. From our perspective the "sooner the better".
WE0003297
From: Bill Behnken [mailto:bbehnken@amnutrition.com]

To: Brent Quintin; Ray Bialick
Subject: RE: Nestle law suit
Thanks Brent. I am not a big speculator but one needed industry adjustment needed, with or
without this lawsuit, is to clean up our suppliers and get them on board with GMPs,
environmental sampling programs, COA's etc.
Regards,
Bill Behnken
From: Brent Quintin [mailto:BQuintin@wilburellis.com]

To: Bill Behnken; Ray Bialick
Subject: Nestle law suit
Bill,
I hope all is well with you and your team.
What do you make of the recent lawsuit filed by Nestle against Blue Buffalo? Any thoughts of what the
"fall out" in the industry will be?
I can't help but reflect back to our dinner conversation a couple of months ago.
Best Regards,
Brent Quintin
WE0003298
EXHIBIT CC
EXHIBIT DD
From:
Sent:
To:
Subject:
Attach:
Collin McAtee <cmcatee@diversifiedingredients.com>

troy@benbenl.com; Doug Haning <DHANING@wilburellis.com>
Chicken Meal, Turkey Meal, Low Ash
102001 Low Ash Chicken Meal Jan 2014.docx; 102003 Chicken Meal 16% Ash Jan
2014.docx; 102007 Turkey Meal Jan 2014.docx
Let's make sure we're all on the same page as we work together to continue the Blue Buffalo
business well into the future and don't open ourselves up to any problems.
Blue Buffalo's description and specification requirements state that the materials "are the dry
rendered product from a combination of clean flesh and skin, with or without accompanying
bone derived from the parts or whole carcasses of chicken (or Turkey in cases of Turkey Meal),
exclusive of feathers, heads, feet and entrails; except is such trace amounts which may occur
unavoidably in good manufacturing practices."
Wilbur has signed off on Blue Buffalo's specification sheets as well as many QA forms that
Wilbur's material meets Blue's required specifications. In light of the recent events, I would
assume that Blue might change their spec definition to exclude that added verbage of "except is
such trace amounts which may occur unavoidably in good manufacturing practices." If they do
that and change their spec, then we will have to take a look at our agreements/guarantees for the
Turkey and Chicken Blends you are making now and see if there is a way to still meet a new
specification. Wilbur might not be comfortable guaranteeing it's 100% free of any feathers,
heads, feet, or entrails, due in part to handling several materials at the plant that do contain
those items and some cross contamination can occur even with good manufacturing practices.
So if Blue changes the spec, we'll address that if it comes up. For now, we need to make sure
we are shipping product that is meeting or exceeding their specifications we have in hand. That
is what they require of Diversified and that's what I require of you guys.
So, I'm writing this to be on record that for our Blue Buffalo shipments, we are adhering to
their specs that are attached to this email which are that we are shipping - "the dry rendered
product from a combination of clean flesh and skin, with or without accompanying bone
derived from the parts or whole carcasses of chicken (or Turkey in cases of Turkey Meal),
Blue Buffalo shipments are any products Diversified is shipping from Rosser going to the
following locations:
St. Mary's, OH
Owatonna, MN
Hazle Township, PA
Frontenac, KS
Perham, MN
Thank you,
WE0002686
Collin McAtee
Ph: 800-727-1267
Fax: 636-200-9033
WE0002687
EXHIBIT EE
From:
Sent:
To:
Subject:
Collin McAtee <cmcatee@diversifiedingredients.com>

RE: Previous Conversations
Yeah, let's do that. I'll send new ones to you and Troy.
Collin McAtee
Ph: 800-727-1267
Fax: 636-200-9033
From: Doug Haning [mailto:DHANING@wilburellis.com]

To: Collin McAtee
Subject: Re: Previous Conversations
Yes you are correct we did sign BB specs but we do not sell to Blue so going forward do you want rewrite the
contracts . Please let me know cause trucks are showing up here .
Doug Haning
On May 13, 2014, at 1:04 PM, "Collin McAtee" <cmcatee@diversifiedingredients.com> wrote:
When we did the blend contracts, Wilbur QA signed off on Blue's spec requirements each year.
That being said, I just figured we were going to add the verbage to the existing blend contract "the
dry rendered product from a combination of clean flesh and skin, with or without accompanying
bone derived from the parts or whole carcasses of chicken (or Turkey in cases of Turkey Meal),
Let's just write up new contracts then. It looks like the way before was too vague because Wilbur's
definition of blend is that it can contain some ByProduct Meal, but then all the while signing off on
Blue's specs that state that it can only have trace amounts, etc, so there's too much gray area and
that's asking for trouble. Let's make it clean and just write up new contracts with all the verbage
included.
Thanks,
Collin McAtee
Ph: 800-727-1267
Fax: 636-200-9033
From: Doug Haning [mailto:DHANING@wilburellis.com]

To: Collin McAtee
Subject: FW: Previous Conversations
WE0002818
CollinIn conversations we have had over the past week, you have asked me to ship you chicken meal and turkey
meal. Our current contracts are for Chicken Meal Blend and Turkey Meal Blend and as you are aware, both
of these contain some by-product meal. Because of this, we will have to have new contracts before we can
move forward with shipping out chicken meal and turkey meal.
Let me know as soon as you can what you want to do.
Thanks
Doug Haning
Sales Manager
0<image001.jpg>
Wilbur-Ellis
Feed Division
11505 FM 2451
Scurry, TX 75158, USA
T 972.486.3316 IF 972.486.3319 IC 214.538.1809
dhaning@wilburellis.com
www.wilburellis.com
WE0002819
EXHIBIT FF
EXHIBIT GG
From:
Sent:
To:
Cc:
Subject:
Terry Odland <TOdland@wilburellis.com>

Rob Fullerton <rfullerton@wilburellis.com>; David Granoff
<DGranoff@wilburellis.com>
Darwin Rusu <DRUSU@wilburellis.com>
DI Meeting@ WECO Rosser Office - May 20th 8:00-8:40am
DI attendees:
Colin McAtee
David Dressel
Ed Wanner
WE attendees:
Darwin Rusu
Terry Odland
Notes in no particular order:
DI (David) advised they believe "Chicken Blend" is a blend of Chicken Meal from various suppliers.
DI (David) tried a couple of times to push us to honor existing contracts including "Troy's" (Custom Ag) & WE
(Darwin) responded by telling them that we understand that those contracts are not what you (DI) now want.
Ed mentioned that they could help with adjusted pricing; we didn't comment.
DI (David) asked if we wanted them to tell Blue of our/WE non-performance on contract/quantity which WE
(Darwin) responded that Blue is your/DI customer & thus your decision to tell them whatever you want.
DI mentioned a few times (Ed & Collin) that they don't want to dwell on the past but look at the future thus
most of the meeting was focused on forward business.
DI advised Turkey Meal is the highest priority.
DI (Colin) advised that he understood we could start shipping them 2 T/La week of Turkey Meal out of 3D
starting 1st week of June. He also asked if we could get any of this earlier & we advised we would try. Colin also
mentioned that he thought 4 T/L's a week were available & WE (Darwin) told him that the additional 2 per week
were committed by 3D until July then Colin asked us to work on them as well.
DI advised that Blue has another source of Turkey Meal.
Near the end of the meeting DI (David) advise they needed 6 loads a week of Turkey Meal from WE.
We advised we were working on other possible sources of Turkey Meal & mentioned Utah/Moroni but not
having much success.
DI/Colin wanted a time frame to nail down additional contracts & WE/Darwin told them we are still reviewing &
wou Id get back to them with something additional by the end of the month.
DI asked about our supply of Low Ash Chicken Meal & WE (Darwin) told them that we are not in position to
supply them with Low Ash & they responded that was not a problem as they could source elsewhere as it was
only 6-8 T/Ls for balance of the year. They asked if we had a "Classifier" & we told them no but we had a
"Shaker" which was not very effective in reducing ash. WE (Terry) asked them if they dealt with Sanimax & they
WE0004025
said no. They mentioned PPI shutting down thus less supply of Low Ash & they thought the raw material was going
to Tyson.
WE asked if DI could buy some Low Ash Meal from Dar-Pro; DI responded that Dar-Pro will not sell them as
views them as "Brokers"
DI asked if they had a supply of Chicken or Turkey Meal if they could bring it into our plant (Rosser). We told
them we only would handle product from WE approved Vendors as we have a robust Vendor approval process.
DI asked us to sign off on the Well pet Turkey Meal Spec sheet & WE (Darwin) advised we wouldn't due to the
micra's listed & DI response was to advise us to "scratch out" anything we couldn't do. WE advised that we
would have our QC manager look at the Spec sheet & get back to them.
DI left us with Blue's spec sheets for Turkey & Chicken Meal & asked us to sign off on them.
TERRY ODLAND
',tf
VV~LBUt+ELUS
Wilbur-Ellis Company
23-1501 Lonsdale Ave. North Vancouver, BC V7M 2J2
T 604.990.8700 I C 604.219.6788
todland@wilburellis.com
www.wilburellis.com
WE0004026

Blue Buffalo-May 19th, 2015 Legal Update

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Case: 4:14-cv-00859-RWS Doc.

#: 271 Filed: 05/19/15 Page: 1 of 85 PageID #: 7007

UNITED STATES DISTRICT COURT

NESTL PURINA PETCARE COMPANY,

Case No. 4:14-cv-00859-RWS

BLUE BUFFALO COMPANY LTD.,

BLUE BUFFALO COMPANY LTD.,

ANSWER TO SECOND AMENDED

BLUE BUFFALO COMPANY LTD.,

Blue Buffalo admits that it spends tens of millions of dollars on advertising to

Blue Buffalo admits that Nestl Purina is a Missouri corporation with

Blue Buffalo admits that it is a Delaware corporation with headquarters in Wilton,

Paragraph 15 pleads legal conclusions, to which no answer is required.

consumers in Missouri, including through television commercials, in-person promotions, print

Paragraph 17 pleads legal conclusions, to which no answer is required.

2013. Blue Buffalo denies the remaining allegations in paragraph 19.

products contain NO chicken/poultry by-product meals on its website, labels, and to

website. Blue Buffalo denies the remaining allegations in paragraph 21.

Paragraph 58 pleads a legal conclusion to which no answer is required.

of Paragraphs 1-58, as if fully set forth here.

of Paragraphs 1-66, as if fully set forth here.

of Paragraphs 1-74, as if fully set forth here.

of Paragraphs 1-78, as if fully set forth here.

of Paragraphs 1-83, as if fully set forth here.

Paragraph 85 pleads a legal conclusion to which no answer is required.

THIRD AMENDED COUNTERCLAIM AGAINST NESTL PURINA,

Blue Buffalo brings this counterclaim to redress a sophisticated and carefully

Counterclaim Plaintiff Blue Buffalo is a Delaware corporation with headquarters

Counterclaim Defendant Nestl Purina is a Missouri corporation with

Counterclaim Defendant PRCG/Haggerty is a New York limited liability

Counterclaim Defendant Blue State is a Delaware corporation with headquarters

Venue is proper in this District under 28 U.S.C. 1391(b)(2) because a

The first three ingredients in Purina Puppy Chowintended, according to its

NESTL PURINAS FALSE AND MISLEADING ADVERTISING CAMPAIGN

The centerpiece of Nestl Purinas campaign is a website (the Honesty

[T]esting conducted by an independent laboratory revealed that several of

Independent testing also shows that Blue Buffalos LifeSource Bits

[S]everal Blue Buffalo products promoted as grain-free actually contain

99% of Purina pet food sold in the United States is manufactured at

PRCG/ Haggerty created the Honesty Website with, at a minimum, reckless

https://www.facebook.com/purina. For example, on May 6, 2014 Nestl Purina posted a link to

In an attempt to damage Blue Buffalos reputation with veterinarians, Nestl

On information and belief, on or about May 7, 2014, Counterclaim Defendants

Counterclaim Defendants have also purchased false and misleading

The Association of American Feed Control Officials, which establishes the

Counterclaim Defendants state in their advertising that several Blue Buffalo

product formulas or specifications it provides its manufacturers include corn as an ingredient.

Not only is Nestl Purinas statement false, it is intended to play on consumers

Counterclaim Defendants statement also makes the false representation that,

Counterclaim Defendants claim is particularly pernicious because it is intended

In addition to attacking Blue Buffalos credibility, in connection with many of its

On May 9, 2014, days after Counterclaim Defendants launched the Honesty

Dr. Makowskis deposition revealed a pattern of misrepresentation regarding his

credentials. For example, Dr. Makowskis manual Microscopic Analysis of Agricultural

In addition to misrepresenting his academic credentials, Dr. Makowski has

fabricated publications. Dr. Makowskis curriculum vitae (C.V.) lists 12 purported

Dr. Makowskis misrepresentations have played a direct role in his academic

sophisticated, independent laboratory,(see Exhibit L) Dr. Makowski undertook the testing

Dr. Makowskis Testing Methodologies Are Contrary To Industry Standards

errors contrary to sound scientific practices. For example:

Dr. Makowski failed to preserve, photograph or document the samples he studied,

Dr. Makowskis Reference Standards Are Unreliable

Dr. Makowski purports to have based his conclusions on comparisons of what he