Caplener v. Bluebonnet Mill. Co.

• Decision Date: 18 December 1995
• Docket Number: No. 95-221,95-221
• Citation: 911 S.W.2d 586,322 Ark. 751
• Parties: , Prod.Liab.Rep. (CCH) P 14,582 R. Don CAPLENER and Kathy Caplener, Appellants, v. BLUEBONNET MILLING COMPANY; Fry's Reproductive Center; and English Lawn Garden & Feed, Appellees.
• Court: Arkansas Supreme Court

Page 586

911 S.W.2d 586

322 Ark. 751, Prod.Liab.Rep. (CCH) P 14,582

R. Don CAPLENER and Kathy Caplener, Appellants, v. BLUEBONNET MILLING COMPANY; Fry's Reproductive Center; and English Lawn Garden & Feed, Appellees.

No. 95-221.

Supreme Court of Arkansas.

Dec. 18, 1995.

Samuel A. Perroni, Little Rock, for appellants.

Margaret Meads, Searcy, Thomas F. Meeks, Little Rock, for appellees.

NEWBERN, Justice.

In the summer of 1993, 23 young ostriches belonging to the appellants, Don and Kathy Caplener, died. The Capleners sued Bluebonnet Milling Company (Bluebonnet) which manufactured the feed they had fed the ostriches. They also sued the feed wholesaler, Fry's Reproductive Center (Fry's), and the retailer, English Lawn, Garden & Feed (English). The Trial Court entered summary judgment in favor of the defendants. The Capleners contend summary judgment was inappropriate as a genuine issue of material fact remained whether defective feed caused the deaths of the Ostriches. We affirm due to the failure to produce evidence that the feed caused the ostriches to die. We also affirm on cross-appeal the Trial Court's refusal to award attorney's fees to the prevailing parties and his denial of English's request for indemnification for litigation expenses from Bluebonnet.

Mr. Caplener's deposition testimony was that his ostriches, which ranged in age from one month to four months, were being fed Bluebonnet Chick Starter. Between May 28, 1993, and June 9, 1993, four bags of the feed were purchased from English and used. On June 16, 1993, some of the ostriches began to show symptoms of illness.

Dr. James W. Mills, a veterinarian, executed an affidavit on September 9, 1993. He said he was called to treat the birds. He initially prescribed antibiotics and electrolytes and then flushing with water. The birds did not respond to the treatment. Dr. Mills then recommended changing to a different brand of feed. None of the treatments succeeded. From postmortem operations Dr. Mills discovered the feed had impacted in the birds' stomachs and that caused their deaths. He stated, "blood tests ... showed normal cultures ... and no bacteria or infection present which could have caused death."

The Capleners had a laboratory analysis performed on a sample of the feed which had been left in a feed pan after most of the Bluebonnet feed had been removed. The results from the first sample sent to the laboratory were negative, but a second sample contained four parts per billion of aflatoxin. It is undisputed that aflatoxin, in concentrated amounts, can be lethal to ostriches. According to Mr. Caplener's deposition, lettuce or boiled eggs had been sprinkled on the Bluebonnet feed occasionally to encourage the birds to eat.

The complaint alleged the feed was adulterated due to the presence of aflatoxin. It was amended to add the allegation of failure to warn and, after the motion for summary judgment was filed, it was amended to allege liability based on the feed being indigestible.

In a deposition, Dr. Mills contradicted his earlier affidavit. He admitted that both e. coli and klebsiella pathogens were found in the intestines of the ostriches, and that death by bacterial pathogen could not be ruled out. His deposition testimony was also internally contradictory. At one point, Dr. Mills opined that the birds died from feed impaction, but in another part of his deposition, he stated he could not give a definite opinion as to why the birds died. Finally, when questioned on the quality of the feed, the following colloquy occurred:

MR. MEEKS [counsel for Bluebonnet]: What caused the impaction?

DR. MILLS: I don't know the answer to that.

* * * * * * MR. MEEKS: Okay. Well, I guess what I'm asking: Are you going to testify at trial that there was something wrong with the food and that caused them to impact?

DR. MILLS: No, because I don't know that there was anything wrong with the food.

MR. MEEKS: Okay.

DR. MILLS: And I can't stand up and say that the food was bad. No, I can't do that.

On August 15, 1994, Fry's and English filed a joint motion for summary judgment. Bluebonnet moved for summary judgment on the same day. Both motions were based on the Capleners' failure to produce evidence that the feed proximately caused the deaths of the birds. Attached to Bluebonnet's motion were excerpts from the depositions of Dr. Mills and Richard Plant, a chemist who had examined some of the leftover feed and found low levels of aflatoxin. Mr. Plant said he was not an expert on the effects of aflatoxin on ratites and that he did not know how much aflatoxin it would take to kill an ostrich. He stated that his opinion was based simply on the fact that toxins are known to vary widely in their concentration within a batch of feed. He also stated that he was not going to testify that aflatoxin killed the birds. Also attached were affidavits from Dr. John Reagor, the head of the Texas Diagnostic Toxicology Department, and Dr. Karen Hicks-Alldredge, a veterinary expert on the care of ratites. Both concluded, based on the deposition testimony in the record, that the birds did not die from aflatoxin poisoning.

With their response to the motion for summary judgment the Capleners filed a second affidavit of Dr. Mills, dated August 17, 1994, in which he stated, in contrast to his deposition testimony, "I believe that there was something wrong with the commercial feed that prevented it from digesting properly. As I testified, I did not test the feed and could not say in what way the feed was defective."

The Trial Court granted a motion by Bluebonnet to strike Dr. Mills's second affidavit and granted the defendants' motions for summary judgment. The Capleners moved for reconsideration. Attached to the motion, in addition to Dr. Mills's two affidavits and excerpts from his deposition testimony, were several customer complaint forms which showed that other ostrich farmers had complained of molded feed. The Trial Court denied the motion for reconsideration.

The Trial Court also refused to award attorney's fees and refused to order Bluebonnet to indemnify English and Fry's for the cost of the litigation. The Capleners appeal from the summary judgment. Bluebonnet and English appeal from the denial of attorney's fees, and English appeals from the denial of indemnification.

1. Material fact issue

When summary judgment is sought, the Trial Court must decide if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ark.R.Civ.P. 56(c); Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48 (1995); Forrest City Mach. Works v. Mosbacher, 312 Ark. 578, 851 S.W.2d 443 (1993).

Among the attachments to Bluebonnet's summary judgment motion were excerpts from Dr. Mills's deposition testimony as well as testimony of the toxicology expert who said the postmortem evidence did not indicate the ostriches died from aflatoxins. Also included was testimony of the ratite expert who concluded there was insufficient information to identify the specific cause of death of the ostriches.

Once the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet proof with proof to demonstrate a remaining genuine issue of material fact. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992). When a party cannot present proof on an essential element of the claim, the moving party is entitled to judgment as a matter of law. Id.

In response to the motion for summary judgment, the Capleners were required to produce some evidence which would raise a material question of fact as to whether the feed manufactured by Bluebonnet caused the impaction. They submit that the second affidavit of Dr. Mills, in which he stated the feed was "indigestible," was sufficient to create a fact issue as to whether the feed caused the birds to die. We hold that the Trial Court correctly excluded the second affidavit when considering the motions for summary judgment.

Our summary judgment rule, Ark.R.Civ.P. 56, is virtually the same as F.R.C.P. 56. The General Assembly adopted the Federal Rule 56 initially by Act 123 of 1961, and we continued to follow the federal model upon adoption of the Arkansas Rules of Civil Procedure which became effective in 1979. As we do with others of our rules modeled on the federal rules, we refer to federal court decisions in our interpretation of Rule 56. Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 827 (1992); Short v. Little Rock Dodge, 297 Ark. 104, 759 S.W.2d 553 (1988).

While we have not addressed the issue, federal courts have held that an affidavit which is inherently and blatantly inconsistent with prior deposition testimony may not be used to establish a question of fact to ward off the granting of a summary judgment motion. Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir.1983); Radobenko v. Automated Equip. Corp., 520 F.2d 540 (9th Cir.1975); Perma Research & Development Co. v. Singer Co., 410 F.2d 572 (2d Cir.1969); Vanlandingham v. Ford Motor Co., 99 F.R.D. 1 (N.D.Ga.1993). See also Jacobs v. Fire Ins. Exch., 36 Cal.App.4th 1258, 42 Cal.Rptr.2d 906 (3 Dist.1995). These cases indicate that a subsequent affidavit may perhaps be used to explain internally inconsistent deposition testimony, see Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir.1980); however, as the Court said in the Perma Research case, "If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact."

Although Dr. Mills's deposition testimony was not a model of clarity, he stated definitely that he did not know what had caused the Capleners'...