Pullman v. Land O'Lakes Inc.

• Decision Date: 11 December 2000
• Docket Number: C-F-,PLAINTIFF-APPELLANT,No. 00-1402,INC,EN-R-G-MA,PLAINTIFFS-APPELLEES,00-1402
• Citation: 262 F.3d 759
• Parties: (8th Cir. 2001) RANDY PULLMAN; LEONA PULLMAN; JENNIFER PULLMAN,, v. LAND O'LAKES, INC., DEFENDANT THIRD PARTY, v. MERLE VAN LIERE;,, DOING BUSINESS AS COLTON FEED SERVICE, INC., THIRD PARTY DEFENDANTS. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 759

262 F.3d 759 (8th Cir. 2001)

RANDY PULLMAN; LEONA PULLMAN; JENNIFER PULLMAN, PLAINTIFFS-APPELLEES, v. LAND O'LAKES, INC., DEFENDANT THIRD PARTY PLAINTIFF-APPELLANT, v. MERLE VAN LIERE; EN-R-G-MAX, INC., C-F-S, INC., DOING BUSINESS AS COLTON FEED SERVICE, INC., THIRD PARTY DEFENDANTS.

No. 00-1402

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: December 11, 2000

Filed: August 20, 2001

Appeal from the United States District Court for the District of South Dakota

Before McMILLIAN and John R. Gibson, Circuit Judges, and Laughrey,¹ District, Judge.

McMILLIAN, Circuit Judge.

Land O'Lakes, Inc., appeals from a final judgment entered in the United States District Court² for the District of South Dakota on a jury verdict in the amount of $174,825.52 in favor of Randy and Leona Pullman and their daughter, Jennifer Pullman (appellees). For reversal, appellant argues that the district court erred in (1) failing to declare a mistrial, (2) admitting certain evidence, (3) giving certain jury instructions, and (4) granting prejudgment interest. For the reasons discussed below, we affirm the judgment of the district court.

The district court had jurisdiction pursuant to 28 U.S.C. § 1332 (diversity of citizenship); appellees are residents of South Dakota; appellant is a Minnesota cooperative; this court has jurisdiction pursuant to 28 U.S.C. § 1291.

I.

Appellees are dairy farmers in eastern South Dakota. They have been in the dairy business since 1969. In the fall of 1994 they entered into an agreement with appellant for dairy consulting services. Appellant had its employee, Dr. Jeff Dietrich, a veterinarian, work with appellees in preparing dairy cow feed rations. At this time appellees had about 200 cows, but, because they were building a new barn, the cows were kept outside or crowded in an old barn that caused cattle stress. Because the cows were not eating enough, they developed health problems. To correct this problem, Dr. Dietrich modified the cattle feed, adding whole cotton seed to the cow feed rations for energy and fibre; however, appellees discontinued its use because of the cost, but at Dr. Dietrich's suggestion, they tried other modifications.

On June 29, 1995, Dr. Dietrich added steam flaked soybeans to the cow feed rations to create a more nutrient-dense ration that appellees began feeding to the cows. Appellees also began to feed the cows haylage from a new bag silo; this feed was moldy and not very appealing to the cows. In addition, the temperature was over 100E F. Appellees testified that many of the cows stopped eating, became ill, or died. The cows that survived developed significant health problems.

In late July 1995, appellees hired William Foley, a feed sales representative of Mix-Rite in Sioux Center, Iowa, to take over the cow feed rations. In July 1996, Foley attempted to recreate what happened to appellees' cows and conducted a feed ration test at Dordt College using ten cows. He fed the cows various rations in an attempt to duplicate the conditions at appellees' farm.

In 1997, appellees sued appellant alleging that the nutrient program recommended by Dr. Dietrich was improper and caused 240 cows to become ill or die. Appellees' theory of liability was that the steam flaked soybeans resulted in a toxic amount of soluble protein. They based their cause of action on negligence and breach of express warranty.

In answer to special interrogatories, the jury found in appellees' favor on the negligence claim, but also found that they were contributorily negligent, but that their negligence was slight or less than slight in comparison to appellant's negligence. The jury awarded appellees damages in the amount of $174,825.52. The jury also found that appellant breached its express warranty, but, because appellees had misused the nutrition program, it found in appellant's favor on the breach of express warranty claim. Both sides filed post-trial motions.

The district court denied appellant's motion for a new trial, holding that: (1) the testimony about insurance was isolated, (2) the Dordt College study was admissible as an experimental test, and (3) that the damages instruction correctly set forth South Dakota law limiting evidence of loss of profits from milk production and calf production to the time period beginning at the time of the loss until the herd was replaced and excluding any recovery for loss of profits following purchase of the replacement herd. The district court also granted appellees prejudgment interest at the statutory rate of 10% from October 1 1996, a date after the purchase of the replacement herd, through October 1, 1999, the date of the jury verdict. Thereafter, the district court amended its judgment and this appeal followed.

II.

Prior to trial the district court had granted appellant's motion in limine regarding the issue of insurance coverage. At trial, Randy Pullman testified about a conversation that he had with Gary Holland, a local cooperative representative, in which Holland told him that "we have insurance for it," and that "we will take care of it," but that the local office "had no authority over a thousand dollars." Appellant objected and moved for a mistrial. The district court denied the mistrial motion and subsequently denied its new trial motion. To put it into context, we set out the question and the answer:

Question: Did you have any conversation with Mr. Holland or anyone about the beans?

Randy Pullman: Yeah. Like I said, we called and it was almost quitting time, it was almost 6:00. And I called out there. And Bob was out there delivering some feed - I don't remember exactly what he brought - but I told Gary Holland that he better get out here, we have a problem with these beans. Like I said, he came out. And Bill redid the test for him. And he says, I mean, if the beans are raw, we have insurance for it and we will take care of it.

Appellant contends that the district court abused its discretion in denying its motion for new trial because Randy Pullman's testimony violated the district court's order granting its motion in limine regarding the mention of insurance and therefore denied it a fair trial. The decision to grant a new trial is left to the sound discretion of the trial court and this court will not disturb the trial court's decision absent a clear showing of abuse of discretion. See, e.g., White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992); Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419, 426 (S.D. 1994) (Kjerstad).

In order for a violation of an order granting an in limine motion to serve as a basis for a new trial, the order must be specific in its prohibition and the violation must be clear. See, e.g., Mouton v. Tug "Ironworker," 811 F.2d 946, 948 (5th Cir. 1987) (holding no abuse of discretion to deny mistrial for direct violation of motion in limine where prompt instruction to disregard given). Further, a new trial may follow only where the violation has prejudiced the parties or denied them a fair trial. See, e.g., Blevins v. Cessna Aircraft Co., 728 F.2d 1576, 1579 (10th Cir. 1984) (holding any error committed in permitting, over objection, evidence concerning "crashworthiness" of aircraft, in violation of motion in limine, was harmless in light of failure to show how party was prejudiced). Prejudicial error is error which in all probability produced some effect on the jury's verdict and is harmful to the substantial rights of the party assigning it. Fed. R. Civ. P. 61; see, e.g., Illinois Terminal R.R. v. Friedman, 208 F.2d 675, 680 (8th Cir. 1954). The district court acknowledged in its post-trial memorandum opinion that its in limine order was clear that no mention of insurance was to be made during the trial. Mem. op. at 5. The district court also acknowledged that Randy Pullman clearly violated the in limine order. Id. Nonetheless, the district court concluded that Randy Pullman's testimony about insurance was made in the context of a conversation and was not specifically a response to a question from appellees' counsel about insurance. Id.

We agree with the district court that appellant was not prejudiced or denied a fair trial by the single mention of insurance. First, the testimony did not relate to any claim that was submitted to the jury. Randy Pullman testified that "(Holland) said, I mean, if the beans are raw, we have insurance for it and we will take care of it." The inference to be drawn from this testimony was that any damage caused by supplying raw beans would be covered by insurance. The issue of whether raw soybeans caused appellees' damage was never submitted to the jury, because at the close of appellees' evidence, the district court dismissed count II of appellees' complaint that alleged appellant failed to test and inspect the soybeans. The only claims submitted to the jury were negligence in recommending the nutrition program, negligence in providing consulting services, breach of express warranty on the nutrition program, and breach of express warranty on the consulting service. Randy Pullman's testimony about insurance did not relate to any claim that was actually submitted to the jury and, therefore, did not affect the jury's verdict. Cf. Kostelec v. State Farm Fire & Casualty Co., 64 F.3d 1220, 1229 (8th Cir. 1995) (holding no abuse of discretion in ruling on evidentiary matters concerning motion in limine, especially when none of the testimony allegedly damaging to party was ever admitted into evidence). Secondly, Randy Pullman never stated or inferred that appellant was covered by an insurance policy. Randy Pullman testified as to his recollection of a conversation he had had with Holland. Holland was never identified at the trial as a representative or agent of appellant. Holland testified that he was the Branch Manager of the Montrose location of the Cenex Service Center. He was not an employee of appellant. Cenex Service Center was one of several co-ops...