Roskop Dairy, L.L.C. v. GEA Farm Techs., Inc.

• Decision Date: 04 December 2015
• Docket Number: No. S–14–115,S–14–115
• Parties: Roskop Dairy, L.L.C., Appellant, v. GEA Farm Technologies, Inc., and Midwest Livestock Systems, Inc., Appellees.
• Court: Nebraska Supreme Court

292 Neb. 148

871 N.W.2d 776

Roskop Dairy, L.L.C., Appellant,

v.GEA Farm Technologies, Inc., and Midwest Livestock Systems, Inc., Appellees.

No. S–14–115

Supreme Court of Nebraska.

Filed December 4, 2015

Kristopher J. Covi, of McGrath, North, Mullin & Kratz, P.C., L.L.O., for appellant.

Stephen L. Ahl and Nathan D. Anderson, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., for appellee Midwest Livestock Systems, Inc.

William M. Bremer and Ann M. Byrne, of Bremer & Nelson, L.L.P., and Catherine L. Stegman and Joseph S. Daly, of Sorodo, Daly, Shomaker & Selde, P.C., L.L.O., for appellee GEA Farm Technologies, Inc.

Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

McCormack, J.

NATURE OF CASE

A dairy appeals from the district court's order of summary judgment in favor of a manufacturer of a microprocessor-based milking control unit and the dealer of that unit (collectively the defendants). The principal issue is whether the dairy rebutted the defendants' prima facie case that mechanical components of the milking system maintained by the dairy and not a part of the microprocessor-based control unit were the proximate cause of the alleged damages.

BACKGROUND

Roskop Dairy, L.L.C. (Roskop Dairy), owned by Michael Roskop (Roskop), is a commercial dairy operation. GEA Farm Technologies, Inc. (GEA), manufactures automated dairy equipment used in dairy systems. Midwest Livestock Systems, Inc. (Midwest), was an authorized dealer of GEA products.

Roskop Dairy sued the defendants for damages allegedly stemming from the "Dematron 60 Air Detacher Package" (Dematron) manufactured by GEA and purchased by Roskop Dairy from Midwest. The total purchase price was $153,027.88. Roskop Dairy paid Midwest a downpayment of $33,600 and made a second payment of $70,000. Roskop Dairy never paid the remainder.

The installation of the Dematron at Roskop Dairy occurred in June 2008. There was no evidence of a service agreement by which Midwest was to regularly inspect or maintain other component parts of Roskop Dairy's milking system that were not provided by Midwest.

Roskop Dairy sued the defendants for breach of express and implied warranties and negligence. Roskop Dairy theorized that Midwest negligently and defectively installed and programmed the Dematron. Specifically, Roskop Dairy asserted that improper parameter settings caused the milking units to detach while still under significant vacuum and thereby harmed the teats of the dairy cows, resulting in mastitis and lowered milk production. Roskop Dairy did not allege liability based on negligent maintenance of the physical component parts of the milking system that are not part of the Dematron.

The defendants generally denied liability and asserted that Roskop Dairy's contributory negligence barred any claim against them. Midwest counterclaimed for the principal amount still due under the sales contract agreement, as well as for 8 percent interest per annum from the payment due date. After discovery, the defendants moved for summary judgment.

MILKING SYSTEM, DEMATRON, AND SOMATIC CELL COUNTS

Roskop Dairy has 50 milking "parlors" used to milk approximately 700 cows. When a cow enters a parlor, an employee of Roskop Dairy manually prepares the cow's teats by cleaning them and stimulating let down. The employee then presses a button to apply vacuum to the milking "claw." The employee applies the claw to the teats, and milking begins. Milk flows through tubes into holding tanks. The claw, vacuum, tubes, and tanks are not part of the Dematron.

The Dematron is a microprocessor-based milking control unit that monitors signals from milking sensors in the milking system and sends signals to that system to control when various processes take place after manual application of the claw. There are multiple parameter settings involved in the functioning of the Dematron. These settings are preset at the factory, but are regularly adjusted to accommodate dairy owners' preferences.

The "milk flow threshold" level is an adjustable Dematron parameter that indicates when the system should finish milking. Another Dematron parameter, "blink time," is the length of time a cow must be below the milk flow threshold before detachment of the claw will start. A component in the system actually blinks during the blink time, and milk flow can also be observed through clear lenses attached to the top of the claw. After the cow is below the milk flow threshold for the desired blink time, the Dematron shuts off the vacuum by sending a signal to a "shifting valve" that is also part of the Dematron.

After the vacuum is shut off, it should quickly dissipate. Depending on the model of claw, vacuum dissipates either through vents in the metal claw itself or in clear plastic replaceable lenses that attach to the top of the claws. In the model of claw used at Roskop Dairy, the vents were located in the lenses and not in the claw itself.

The "detach delay" is a setting of the Dematron that controls the time between when the vacuum is shut off and the claw is retracted by the automated system. Retraction ideally occurs when most, but not completely all, of the residual vacuum has dissipated through the vents. If no residual vacuum is left when the claw retracts, the claw will fall, rather than be retracted, and will land on the parlor deck.

The "milk sweep delay" is a Dematron setting controlling the time between when the claw is retracted and when the "milk sweep begins." The "milk sweep" is an optional setting and consists of a short burst of vacuum to pull any residual milk into the tubes of the milking system.

After detachment, the cows' udders are manually dried with a cloth by Roskop Dairy employees.

The somatic cell count of the milk at a dairy is an indicator of the number of mastitis

organisms in the herd. Increased somatic cell count can mean either many cows with a lesser degree of infection or fewer cows with a worse infection. Somatic cell counts above 400,000 are "concerning." Below 200,000 represents a well-managed herd.

While the somatic cell count in Roskop Dairy's herd had previously been in the 200,000 range, in January 2008, before the installation of the Dematron, it significantly increased to 409,000, from 285,000 the previous month. The somatic cell count continued in the 409,000 to 476,000 range until June 2008, when it reached 510,000.

In July 2008, after installation of the Dematron, the somatic cell count rose to 627,000. It went back down to 493,000 in August, after Dematron employees visited Roskop Dairy. It is undisputed that during that visit, Dematron employees adjusted some parameter settings of the Dematron.

Roskop Dairy claims that the rise in somatic cell counts in the herd after installation of the Dematron corresponded to a reduction in milk production that had not occurred during the pre-Dematron rise in somatic cell counts. Roskop did not address the extent to which any changes in milking practices entered into this conclusion. Roskop had milked his cows three times a day until July 2, 2008. Since July 2, however, he has milked his cows twice a day. Milking three times a day versus twice a day would increase milk yield by 12 to 15 percent.

DEPOSITION OF MICHAEL ROSKOP AND KAREN CASS' MASTITIS REPORTS

Roskop's deposition was entered into evidence at the summary judgment hearing. Roskop testified that due to the timing of events, he believed the July 2008 increase in the somatic cell count was caused by the parameters of the Dematron's being set incorrectly the previous month. Roskop admitted that he was not an expert on milking machines. He admittedly did not fully understand the Dematron settings. But he stated that approximately 20 days after the system was installed, his herd experienced an increase in mastitis

.

Roskop suspected, first, that from the time the system was installed until July 31, 2008, when Midwest employees made further adjustments to the Dematron's parameter settings, the blink time was set too short, such that the machines were detaching before the cows were fully milked. He believed this based on the appearance of the cow udders and the fact that the cows were not producing as much milk as he expected.

Roskop admitted the blink time setting did not lead to mastitis, however. Roskop testified that his employees manually reattached the system when the cows' udders appeared to not be completely milked out. Roskop did not specifically recall which of the original blink time settings and adjustments may have been made at his request.

Roskop suspected that incorrect parameters for the sweep time led to the increase in mastitis. Roskop believed that from the time of installation until adjustments were made on July 31, 2008, incorrect sweep time settings resulted in the machine's detaching while still under a vacuum. This, in turn, tugged on the cows' teats, causing physical injury that made them more susceptible to mastitis. Since discovery, Roskop Dairy no longer asserts that the sweep time settings led to mastitis

.

Roskop testified that from late June 2008 when the system was installed until Midwest employees made adjustments to the parameter settings in late July, he witnessed the claw units being "jerked off" the cows with a lot of "tugging." He testified that the units were coming off under vacuum and that vacuum lasted for approximately 3 seconds before it dissipated. Roskop did not clearly explain whether he could determine that this vacuum was active vacuum versus residual vacuum. At one point, he affirmed that he could hear the hissing of air being sucked into the machine for about 3 seconds, but that at another point, he affirmed this was the failure of the vacuum to dissipate for approximately 3 seconds.

During the time period that the units were detaching under vacuum, Roskop observed approximately one-third of his dairy cows with "everted" teat ends. Roskop explained that normally only about 2 percent of his cows demonstrated everted teat ends. Roskop further observed bruised...