Products Liability Law Daily Dismissal of horse feed poisoning claim in absence of expert witness upheld on appeal
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Wednesday, September 30, 2020

Dismissal of horse feed poisoning claim in absence of expert witness upheld on appeal

By Robert B. Barnett Jr., J.D.

A veterinarian who was not allowed to testify as an expert was not permitted as a lay witness to state a cause of death because that opinion required "specialized knowledge" only experts can give.

Summary judgment in favor of a horse feed manufacturer was proper in an action brought by the owners of two dead horses based on allegations that the feed that the horses ate contained a toxic concentration of an antibiotic, causing their deaths, the U.S. Court of Appeals for the Tenth Circuit held, affirming a ruling by the federal district court in New Mexico. The trial court properly determined that the horse owners’ expert witness had been disclosed too late for him to testify as an expert, and that, as a lay witness, he could not offer his opinion on the cause of the poisoning, according to the three-judge appellate panel. Consequently, in the absence of testimony about the cause of the horse deaths, the asserted products liability claims failed (Derrick v. Standard Nutrition Co., September 29, 2020, McHugh, C.).

On December 14, 2016, two horse owners in New Mexico discovered that two of their horses were dead. The owners, a married couple, called a veterinarian who examined the horses and sent samples to a laboratory. The lab results were inconclusive, in part because of the time that may have elapsed between when the horses died and when the owners found them, although the tests did find trace amounts (1.2 parts per million) of monensin—an antibiotic sometimes used in cattle feed—in the feed sample. After reviewing the lab results, the vet, in a handwritten letter, concluded that in his opinion the horses died of monensin toxicity.

Standard Nutrition Company manufactured the feed that the owners fed to their horses. After receiving the vet’s opinion, the horse owners contacted Standard for compensation. Ultimately, the horse owners filed suit, alleging 10 claims including negligence, strict products liability, fraud, and breach of the implied warranty of merchantability.

During discovery, Standard disclosed its expert witness, who stated that in his opinion the horses did not die from monensin toxicity because they would have needed to consume massive amounts of feed to ingest enough monensin to kill them. He opined that for the two horses to have died from monensin toxicity in the timeframe outlined by the owners’ vet, they would have needed to consume feed with a monensin concentration of about 700 parts per million. He also said that other causes of the deaths were far more likely and that the amounts found by the lab were in a nontoxic concentration. The owners moved for sanctions against Standard after it reused or disposed of the couples’ feed. A magistrate judge wrote a memorandum recommending that the motion be denied. Subsequently, Standard filed a motion for summary judgment.

Lower court opinion. The district court determined that the vet’s testimony would be limited to what he observed on the day he examined the horses because the horse owners failed to declare the vet as an expert witness within the time allowed. It further ruled that he would not be allowed as a lay witness to testify as to the cause of death [see Products Liability Law Daily’s May 9, 2019 analysis]. With the vet not being allowed to testify as an expert, the couple was unable to prove causation, and the court entered summary judgment favoring Standard on all claims requiring proof of causation. After losing their reconsideration motion, the couple dismissed the remaining claims and appealed the summary judgment decision to the Tenth Circuit.

Scope. The lower court had concluded that, as a lay witness, the vet could not testify as to causation because Fed. R. Evid. 701 states that a lay witness only can testify on matters "not based on scientific, technical, or other specialized knowledge." Because causation was essential to the claims, the appeal would fail, therefore, unless the horse owners could establish that the lower court erred in limiting the scope of the vet’s testimony.

The appellate court agreed with the lower court’s analysis. The cause of death was beyond the knowledge of a lay witness. Clearly, the appellate panel concluded, a diagnosis of monensin poisoning requires "specialized knowledge." The trial court, therefore, was within its proper discretion to prevent the vet from testifying as to the cause of death.

New evidence. The horse owners had one more argument. On reconsideration, the horse owners had produced new evidence from an examination of a euthanized horse, which found a heart lesion that could be associated with monensin. The owners wanted to be allowed to present that evidence as further proof of monensin poisoning. They argued that Woodworker’s Supply, Inc. v. Principal Mutual Life Ins. Co., 170 F.3d 985 (10th Cir. 1999) has established a four-factor test for determining whether the failure to disclose new evidence was "justified or harmless," and those factors are: (1) the prejudice to the other party; (2) the ability of the party to cure the prejudice; (3) the possible disruption to the trial; and (4) the moving party’s bad faith. Weighing all four factors, the lower court concluded that the horse owners would not be allowed to introduce the new evidence. Prejudice to Standard was a key consideration. The trial was imminent, and the owners sat on the test results for two months before disclosing them to the court. Allowing the evidence would significantly disrupt the trial, the lower court determined.

The appellate court agreed with the lower court’s conclusion. On their appeal, the couple repeated "the same arguments they made in the district court and argue[d] for a different result," the court concluded. Rather than argue abuse of discretion, they seemed simply to want a second crack at the case. However, after carefully examining the lower court’s "thorough and comprehensive order, which is firmly anchored to the law and facts," the appellate court found no abuse of discretion by the lower court.

Sanctions. Finally, the horse owners had no right to seek reconsideration of the magistrate’s memo recommending that the court deny the sanctions request. The rules allow 14 days for objecting to non-dispositive orders. The couple waited almost two months. The Tenth Circuit has adopted a firm waiver rule. The only exceptions are for pro se litigants or a failure to receive the initial order, neither of which applied here.

The Tenth Circuit, therefore, affirmed the lower court ruling in its entirety.

The case is No. 19-2120.

Attorneys: Laurence M. Berlin (Law Office of Laurence M. Berlin) for Angie Derrick and Ronny Derrick. Gregory L. Biehler (Lewis Brisbois Bisgaard & Smith LLP) for Standard Nutrition Co. d/b/a A-C Nutrition LP.

Companies: Standard Nutrition Co. d/b/a A-C Nutrition LP

MainStory: TopStory ExpertEvidenceNews CausationNews FoodBeveragesNew

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