Schafersman v. Agland Coop.

631 N.W.2d 862 (2001)

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Nature of the Case

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Facts

P operates a commercial dairy farming operation. D sells grain and feed for various agricultural endeavors. There were 54 lactating cows in Ps' dairy herd and 21 additional cows that were not lactating and located in a 'dry lot.' Ps ordered 40 bushels of unadulterated commercial grade oats from D. D delivered 3,260 pounds of product to Ps' grinder-mixer, to be mixed with other ingredients for Ps' dairy mix, and from which the mix was augered into a gravity bin to be fed directly to the cows. The oats were contaminated with 'Envirolean 2.5L Swine Concentrate' (Envirolean), a hog premix concentrate that included high-protein minerals, vitamins, and other micronutrients. Ps allege that they noticed the contaminant just after the oats were delivered, but that they were verbally reassured by D that the substance was harmless. After the mixture was fed to the dairy herd, the cows went off their feed, and milk production dropped. The cows dried up, became lame, and developed poor body condition; some died or were liquidated; and none of the 54 cows that consumed the mix ever returned to proper milk production. Ps sued D for lost milk production, cows lost to natural death or slaughter, increased labor costs, and veterinary costs, for a total of $ 117,743.29 in special damages. D claimed that Ps were contributorily negligent in failing to allow D to remedy the contamination, in continuing to feed the contaminated feed to the cows after problems developed, and in failing to immediately notify D or consult a veterinarian. Ps presented the expert opinion testimony of Wass. Wass claimed that 'multiple mineral toxicity,' was the result of the aggregation of above-normal quantities of minerals potentially toxic to dairy cows. Wass is a professor at Iowa State University in the department of diagnostic and production animal medicine and was head of that department when it was known as the department of clinical sciences. Wass is board certified in veterinary internal medicine, and he specializes in diseases of metabolism, nutrition, and toxicology. Wass obtained both a bachelor of science degree in agriculture and a doctor of veterinary medicine degree from the University of Minnesota and later obtained a doctorate degree in veterinary medicine with a minor in pathology from the same university. Wass went to Ps' farm but only examined Ps' records relating to the cows. Wass admitted that he did not perform a clinical examination of any of the cows and did not treat the cows. Wass did not perform any tests on the cows to rule out other causes of jaundice that had been observed in the cows by Ps' veterinarian, nor did he test for copper toxicity, which Wass opined was a contributing factor to the illness afflicting the cows. Wass performed no tests to rule out other potential causes for the alleged drop in milk production. Wass acknowledged that he should have tested for copper toxicity and performed other tests on the cows. Wass further testified that while he tested a sample of the mixture delivered to Ps by D, he did not test the composition of the total ration actually fed to the cows after it was combined by Ps with corn and other nutrients. Wass testified that he had neither studied multiple mineral toxicity nor authored any publications concerning multiple mineral toxicity. He was aware of no controlled studies that related to multiple mineral toxicity, although he claimed that people in the field have observed it. He conceded that the theory he proposed set forth no standard for determining what levels of any given minerals could result in a toxic effect. Wass stated that he had seen a similar prior case, but he did not testify regarding the mineral levels present in that instance, nor did he discuss any testing that might have been performed in that instance. Wass conceded, in his deposition, that he had not conducted any tests that were intended to bear out his theory of multiple mineral toxicity. D's expert testified that the scientific literature did not contain a theory of multiple mineral toxicity and that in his opinion, that theory did not apply to the instant case. D filed a motion in limine seeking to prevent Wass' testimony and objected at trial on foundational grounds. D's expert witness testified that the Envirolean contained no minerals above tolerable levels and that the contaminated feed was nontoxic and did not harm the cows. The jury returned a verdict for Ps in the amount of $ 120,000. D appealed.