legal grounds. More factual information ought to be provided before deciding one way or the other.
The court accordingly proposes to appoint an independent expert witness, pursuant to Fed.Ev. Rule 706 to make a study and report on the fact aspects of the issue. The court proposes to appoint Dr. Sheldon Atlas, of the Polytechnic Institute of New York, 333 Jay Street, Brooklyn, N.Y. A copy of his curriculum vitae is furnished to the parties with this ruling.
Both parties are directed to show cause why an order appointing him should not be entered, and to submit proposed directions for his study and report. The submissions are to be in the hands of the court on or before February 15, 1977.
It is the court's intention to limit the initial study and report to a review and analysis of known and recognized methods of blending in a variety of manufacturing processes, but short of the conducting of any laboratory tests or analysis, in order to minimize the cost and expense of the procedure.
The court also intends to assess one-half of the cost of the expert's services in conducting the study and preparing the report, and for any testimony which either or both parties, or the court, may wish to have after review of the report, with further decision on the expert's cost to abide the event.
The court also needs to know whether there is any fact dispute over the representations of claimant in respect to the quantity of each product involved, and the proportion of antibiotic, as set forth in its memorandum. To provide a basis for easier evaluation, the court has taken the material as represented and converted it by calculation to determine the amount of each antibiotic present in grams, ounces and pounds.
The parties are asked to check and verify these calculations in their responses to the order to show cause.
Finally, it is noted that if an order to recondition the condemned feeds is to be entered under 21 U.S.C. § 334(d), the reconditioning is to be under administrative supervision with the cost of supervision to be paid by claimant under bond.
The court has no cost data before it, either for the cost of blending or the cost of administrative supervision of the blending. It may be that these combined costs are such as not to make it economically feasible to recondition by blending those items whose quantity amounts to less than 2 tons. (Prodalin R, Grober Supplement, Provimelk Premix and Chlortetracycline Premix). For these smaller quantities it may be that the value of the main ingredient is too low to balance against the costs of reprocessing, blending and supervision. It may be more cost effective to sell these smaller quantities for reprocessing into some useful non-food product such as casein glue. Claimant may wish to consider one or another form of such alternative routes, just as a batch of iodized salt with too much iodine might be salvaged for non-food uses such as for melting ice.
The parties are also asked to review the transcript of the partial trial in December, 1976, and to include in their submissions to the order to show cause factual data of the kind then requested.
Nothing in this memorandum order precludes either party from presenting facts tending to show whether the presence (qualitative) or amount (quantitative) of zinc bacitracin or of chlortetracycline in the condemned items either can or cannot be ascertained by test with reasonable accuracy, or, if they can be so ascertained, that each generic substance does or does not carry some specified degree of risk aside from the statutorily "deemed" illegality.