Hancock v. Shook, SC 84509.

Citation100 S.W.3d 786
Decision Date18 March 2003
Docket NumberNo. SC 84509.,SC 84509.
PartiesGlen L. HANCOCK, Appellant, v. William and Ruth SHOOK, d/b/a Barnes Feed Store, Respondents.
CourtUnited States State Supreme Court of Missouri

Mr. Timothy E. Gammon, Springfield, for Appellant.

JoAnne S. Jackson, Michele Craycroft, John Housely, Springfield, for Respondents.



Glen Hancock appeals a verdict in his favor of $12,500 against William and Ruth Shook, doing business as Barnes Feed Store. Mr. Hancock's dairy herd ingested feed purchased from the Shooks that was contaminated with a toxic mold. Mr. Hancock sought $600,000 in damages resulting from losses to his herd and decreased milk production. The judgment is affirmed.

A. Background Facts

Glen Hancock is a dairy farmer and was a regular customer of Bill and Ruth Shook, owners of Barnes Feed Store. In March 1992, Mr. Hancock purchased feed from the Shooks and fed it to his milking herd. Mr. Shook admitted that this feed was contaminated with aflatoxin.1 Four days of milk production2 totaling nearly 36,000 pounds was dumped because of unhealthy levels of aflatoxin in the milk. Mr. Hancock explained that not every cow reacted the same way to the contaminated feed, but that much of his herd reacted poorly. There were three aborted (miscarried) calves immediately after feeding the contaminated feed and Mr. Hancock culled3 126 cows because of aflatoxin-related problems. Finally, Mr. Hancock claimed that overall milk production decreased for a number of years because of the large amount of culls and continuing health problems relating to the ingestion of aflatoxin.

B. Procedural History

Prior to trial, the court made a number of rulings, including a decision that Mr. Hancock could not testify that he knew the problems in his herd were caused by aflatoxin-contaminated feed, even though he had traveled to look at another herd with a known aflatoxin problem.

The Trial

Mr. Shook was called by Mr. Hancock and testified that he knew of other incidents of aflatoxin-contaminated feed at local mills. In fact, the Shooks had purchased an aflatoxin test kit in February 1992 at least partly due to knowledge of other incidents of aflatoxin in the area. However, the Shooks had not tested any feed when the contaminated feed was sold to Mr. Hancock. Mr. Shook testified that he was aware that some local mills were testing for aflatoxin in March 1992, but he said, "many were not."

There was some dispute during the testimony of Dr. Mozier, Mr. Hancock's veterinarian, as to whether he could show that the three abortions occurred after the aflatoxin-contaminated feed was fed to the Hancock herd. Dr. Mozier produced a series of "tickets" from visits to Mr. Hancock's farm in March 1992. The three abortions were represented on ticket number 14158, which was partially dated "03/__/92." Ticket number 14134 was dated "03/13/92." When asked what this would suggest, Dr. Mozier testified that he assumed the three abortions occurred after March 13, 1992, because the ticket number for the incomplete date was higher than the March 13 ticket. However, when cross-examined, Dr. Mozier testified that the ticket numbers would not necessarily be in sequence and, therefore, he could not be certain that the abortions occurred after the aflatoxin incident.

The trial court allowed juror questions as a regular aspect of the trial procedure. The court and the attorneys reviewed the submitted jury questions at sidebar and discussed the appropriateness of each question. The attorneys were allowed to object if they felt a question should not be asked. The court sometimes refused to ask a question and sometimes altered the question from that submitted in order to make the question more understandable.

Following Dr. Mozier's testimony, a juror submitted this question: "[I]s there any way to figure out the doses — the date of the farm visit with the three aborted cows?"

THE COURT: I assume you two would have figured this out by now if there was some other way to find out the date with this witness.

MR. GAMMON [Mr. Hancock's attorney]: Well, you can ask him. He might —

THE COURT: I'll ask him.

When proceedings returned to open court, the following transpired:

THE COURT: Doctor, I have a couple of questions from the jury.

Do you know of any other way to figure out the date of the farm visit with the three aborted cows than what we've already asked you about here today?

THE WITNESS: I can certainly try to. I may have a way by finding the blood samples in that particular day, and I might be able to find that record. I can do that this evening at the office. I might be able to find out that way.

Dr. Mozier subsequently sought out and discovered other records that confirmed that the abortions occurred after the aflatoxin incident. When Mr. Hancock sought to recall Dr. Mozier to testify to this new information, the following discussion ensued:

MR. GAMMON: ... because Dr. Mozier answered the juror's question by saying yes, I think there may be additional records and I can look at them, Dr. Mozier did that subsequently ... He's not available this morning. I believe we need to go ahead and close our case. I've offered two alternatives.

One, that we would stipulate to the information he gave me which is that there is a record, a written document, that shows that it was collected on the farm on March the 14th, which would have been the day of that visit.

He did testify he remembered the day very specifically, and the visit, but he did not remember what day it was. But this record shows that that date was March the 14th.

I've offered to bring him tomorrow to testify to that fact. I also have represented that I expect him to be here tomorrow, for rebuttal. Arid my position is that her experts have seen these same tickets and testified that it appears to them that this was after March the 13th. And I'm going to ask them about that and thus it will be a proper question for rebuttal in any event.

THE COURT: ... the issue really comes down to not whether the juror asked a question, because it wasn't like something that you hadn't asked and Ms. Jackson hadn't crossed him on. The issue really is would I allow you in any trial to reopen — to hold open your evidence and bring back in evidence that he later went out and found because of cross-examination.

MS. JACKSON: And there's another thing ... these records were all requested in discovery. We requested all of the veterinary records, including lab reports. And that wasn't produced. We've never seen that record. I didn't have any experts testify that this call was made after the incident. That was the question they were asked by Mr. Gammon that assumed this. But we've never seen that record, it's never been produced. And it's a little late now to pull it out. [as] some kind of smoking gun just because I impeached their expert and they're trying to rehabilitate him and rebut their own testimony.

THE COURT: ... I probably won't let you call this witness. There was no agreement that he could go out and look for this ticket —

. . . .

THE COURT: You did not disclose it in the request for production of documents first.

MR. GAMMON: We didn't know he had it.

THE COURT: He didn't look. You were asked to look for the documents that you have to establish your claims

. . . .

MS. JACKSON: Judge, we got the vet records from two sources. We got them from the Plaintiff and we got a separate set from Dr. Mozier directly. It wasn't in either one of them. Nobody produced them. If it was a record that existed, it should have been produced if they were going to rely on it.

MR. GAMMON: We didn't think it was an issue until —

MS. JACKSON: You didn't think it was an issue until he was impeached on the witness stand. And it's not proper for you to rebut your own testimony at this point. You should have looked for it. That's what the burden of proof is about.

THE COURT: ... you had him on the stand. You went through his vet tickets .... That's the way it was left for the jury. It's for them to decide .... You're not going to be able to bring him back just like I wouldn't let you bring any other witness back after they've been impeached and say oh, I went out and found some more stuff to show you that I'm right. That's not the way trials are done.

Dr. Mozier was recalled to testify during Hancock's rebuttal case, but was not asked about the date of the three abortions. Jurors were again allowed to submit questions. At sidebar, the court and attorneys discussed the questions:

THE COURT: Court Exhibit 28, did Dr. Mozier look up the date for the three aborted calves on Mr. Hancock's farm? He said he could look for the date on lab results. Did you find the blood tests on the three cows that had the abortions? If so, what were the dates that the tests were given?

MS. JACKSON: I object on the basis that the discovery wasn't provided.

THE COURT: I'll sustain the objection.

. . . .

THE COURT: .... He didn't have the records. You didn't produce the records. How can you be now saying this was unfair when you didn't produce the records in direct examination? He didn't have them.

The court did not submit the jury questions to Dr. Mozier.

At the close of Mr. Hancock's case, the Shooks moved for directed verdict. The Shooks first alleged that Mr. Hancock failed to prove his negligence claim because he did not show that it was the industry standard to test for aflatoxin in 1992. The Shooks also argued that Mr. Hancock could not submit his claim for negligence per se, because he did not submit any testimony regarding the Missouri Commercial Feed Law.4 In addition, the Shooks argued that "[c]ase law provides that there is no private cause of action implied into any penal statute, which is what the Missouri Feed Law is, absent an expressed provision or a clarification of legislative intent to do so."...

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