Hurtado v. Land O'Lakes, Inc.

• Decision Date: 29 May 2012
• Docket Number: No. 38406.,38406.
• Citation: 153 Idaho 13,278 P.3d 415
• Parties: Jesus HURTADO and John Reitsma, d/b/a J & J Calf Ranch, Plaintiffs–Respondents–Cross Appellants, v. LAND O'LAKES, INC., a Minnesota corporation; Land O'Lakes Purina Feed, LLC; Defendant–Appellants–Cross Respondents, and Valley Co–Op's, Inc., an Idaho corporation, Defendants–Cross Respondent, and John Does and Jane Does 1–X; John Doe Corporations 1–V, Defendants.
• Court: Idaho Supreme Court

153 Idaho 13

278 P.3d 415

Jesus HURTADO and John Reitsma, d/b/a J & J Calf Ranch, Plaintiffs–Respondents–Cross Appellants,

v. LAND O'LAKES, INC., a Minnesota corporation; Land O'Lakes Purina Feed, LLC; Defendant–Appellants–Cross Respondents,andValley Co–Op's, Inc., an Idaho corporation, Defendants–Cross Respondent,andJohn Does and Jane Does 1–X; John Doe Corporations 1–V, Defendants.

No. 38406.

Supreme Court of Idaho, Boise, February 2012 Term.

May 29, 2012.

Maguire & Penrod, Pocatello, for appellants. David Maguire argued.

Law Office of Harry DeHaan, Twin Falls, for respondents. Harry C. DeHaan argued.

HORTON, Justice.

This appeal arises from a products liability action brought by Jesus Hurtado and John Reitsma, d/b/a J & J Calf Ranch (J & J), against Land O'Lakes, Inc. (Land O'Lakes). J & J alleged that the Land O'Lakes milk replacer it used to feed its dairy calves was defective and caused the death of more than one hundred calves. A jury found in favor of J & J and awarded damages. Land O'Lakes appeals, arguing that the district court improperly admitted expert testimony and that J & J failed to prove both liability and damages. Land O'Lakes asks this Court to vacate the judgment of the district court and enter judgment in its favor or, alternatively, to vacate the judgment and order a new trial. J & J cross-appeals from the district court's award of attorney fees, arguing that the court abused its discretion by excluding fees incurred before and during previous litigation in this matter. J & J asks this court to vacate the award of attorney fees and remand with instructions to include attorney fees accrued in the first trial in its calculation of reasonable attorney fees. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2005, J & J purchased a Land O'Lakes milk replacer product called Purina 20–20 Milk Replacer and began feeding it to its dairy calves. According to Jesus Hurtado, after J & J began feeding with the Land O'Lakes milk replacer, the dairy calf herd experienced an increase in deaths from scours.¹ Hurtado stated that the normal mortality rate for calves at the J & J ranch is between three and five percent, but in the summer of 2005, the rate was 19 to 20 percent. J & J estimated it lost 130 calves from the scours problem and that the calves were worth $1000 each. J & J treated the calves with anti-bacterial drugs without success. Eventually, J & J started feeding a different product to the bull calves, and shortly thereafter the death rate from scours returned to normal in the bull calves. The scours-related mortality rate among the heifer calves, which were still being fed the Land O'Lakes product, remained higher than normal.

J & J sent a sample of the milk replacer, as well as two fecal samples from sick calves, for testing at a nearby laboratory. The milk replacer samples tested positive for non-pathogenic staphylococcus and streptococcus. Brad Brudevold, J & J's nutrition expert, testified that these organisms do not cause scours. One fecal sample tested positive for cryptosporidia, which can cause scours in dairy calves, and the other was clean. Brudevold testified that despite the presence of cryptosporidia in the fecal sample, it was his opinion that the scours were caused by a nutritional problem, not by cryptosporidia.

J & J sued Land O'Lakes in December 2005. The jury entered a verdict for J & J in the amount of $150,000 and Land O'Lakes appealed. After holding that the district court had abused its discretion in admitting certain business records, this Court vacated the judgment against Land O'Lakes and remanded for a new trial. After the second trial, the jury again entered a verdict in favor of J & J on its breach of the implied warranty of merchantability claim and awarded damages of $50,000, to be reduced by 40 percent for J & J's negligence.

J & J requested attorney fees of $80,744. The request included fees for time spent preparing for and conducting the first trial, as well as paralegal and attorney fees incurred during the second trial. The district court excluded most of the requested fees, including fees for the pretrial work and the first trial, and awarded J & J $13,520. Land O'Lakes appeals the jury's verdict, and J & J cross-appeals the district court's order limiting its recovery of attorney fees. Both parties request attorney fees on appeal.

II. STANDARD OF REVIEW

District courts have "broad discretion in determining whether a witness is qualified as an expert." Weeks v. E. Idaho Health Servs., 143 Idaho 834, 837, 153 P.3d 1180, 1183 (2007) (quoting Warren v. Sharp, 139 Idaho 599, 605, 83 P.3d 773, 779 (2003) ). Determining whether expert testimony is admissible "is also a matter committed to the discretion of the trial court and will not be overturned absent an abuse of that discretion." Weeks, 143 Idaho at 837, 153 P.3d at 1183 (citing Athay v. Stacey, 142 Idaho 360, 366, 128 P.3d 897, 903 (2005) ). "Error may not be predicated upon a ruling which admits or excludes evidence unless the ruling is a manifest abuse of the trial court's discretion and a substantial right of the party is affected." Burgess v. Salmon River Canal Co., Ltd., 127 Idaho 565, 574, 903 P.2d 730, 739 (1995) (citing I.R.E. 103 ; I.R.C.P. 61 ; Hake v. DeLane, 117 Idaho 1058, 1065, 793 P.2d 1230, 1237 (1990) ).

We will not set aside a jury verdict on appeal if it is supported by substantial and competent evidence. Mackay v. Four Rivers Packing Co., 151 Idaho 388, 391, 257 P.3d 755, 758 (2011). "Substantial and competent evidence is relevant evidence that a reasonable mind might accept to support a conclusion." Uhl v. Ballard Med. Prods., Inc., 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003) (citing Hughen v. Highland Estates, 137 Idaho 349, 351, 48 P.3d 1238, 1240 (2002) ). However, substantial evidence does not mean uncontradicted evidence. VFP VC v. Dakota Co., 141 Idaho 326, 335, 109 P.3d 714, 723 (2005) (citing Mann v. Safeway Stores, Inc., 95 Idaho 732, 736, 518 P.2d 1194, 1198 (1974) ). "[W]hen reviewing a jury verdict on appeal the evidence adduced at trial is construed in a light most favorable to the party who prevailed at trial...." Garrett Freightlines, Inc. v. Bannock Paving Co., Inc., 112 Idaho 722, 726, 735 P.2d 1033, 1037 (1987).

A district court's "calculation of reasonable attorney fees is reviewed for an abuse of discretion." Lee v. Nickerson, 146 Idaho 5, 10, 189 P.3d 467, 472 (2008) (citation omitted). "The party opposing the award bears the burden of demonstrating that the trial court abused its discretion." Griffith v. Clear Lakes Trout Co., 146 Idaho 613, 622, 200 P.3d 1162, 1171 (citing Lettunich v. Lettunich, 145 Idaho 746, 749, 185 P.3d 258, 261 (2008) ).

III. ANALYSIS

After the second trial, Land O'Lakes moved for judgment notwithstanding the verdict or, alternatively, for a new trial. The district court denied the motion, but Land O'Lakes does not expressly appeal that denial; rather, it sets forth as the issues on appeal some of the individual errors it previously claimed as grounds for its motion, along with an evidentiary issue. We have held that "[i]t is the duty of the appellant to list the issues on appeal for this Court to review." Andersen v. Prof. Escrow Servs., Inc., 141 Idaho 743, 746, 118 P.3d 75, 78 (2005) (citing Everhart v. Wash. Cnty. Road & Bridge Dep't, 130 Idaho 273, 274, 939 P.2d 849, 850 (1997) ). Further, "[t]his Court has consistently followed the rule that it ‘will not review the actions of a trial court, unless the action has been listed as an issue on appeal, especially where no authorities are cited and no argument is contained in the appellate briefs.’ " Andersen, 141 Idaho at 746, 118 P.3d at 78 (quoting Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 93, 803 P.2d 993, 999 (1991) ). Therefore, Land O'Lakes's appeal is treated as an appeal from a judgment entered on a jury verdict rather than an appeal from the district court's denial of its motion for JNOV or new trial.

A. Land O'Lakes waived the issue of whether the district court abused its discretion in permitting J & J's expert to testify.

We first address Land O'Lakes's contention that Brudevold was not timely disclosed as an expert witness. We have consistently stated that if "issues on appeal are not supported by propositions of law, authority, or argument, they will not be considered.... A party waives an issue cited on appeal if either authority or argument is lacking, not just if both are lacking." Gem State Ins. Co. v. Hutchison, 145 Idaho 10, 16, 175 P.3d 172, 178 (2007) (ellipsis original) (quoting Anson v. Les Bois Race Track, Inc., 130 Idaho 303, 304, 939 P.2d 1382, 1383 (1997) ). While Land O'Lakes mentions the issue in its briefing, it makes no argument. We therefore conclude that Land O'Lakes has waived this issue on appeal.

Land O'Lakes also argues that the district court's admission of Brudevold's testimony was an abuse of discretion. Land O'Lakes contends that J & J failed to demonstrate Brudevold's qualifications as an expert, failed to show a scientific basis for Brudevold's opinion testimony, and failed to demonstrate substantial similarity between the scours problem on Brudevold's ranch and the problem at J & J.

We decline to consider these claims because Land O'Lakes has not demonstrated that a substantial right has been affected. The Idaho Rules of Evidence provide that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." I.R.E. 103(a). Similarly, under the Rules of Civil Procedure, "[t]he court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." I.R.C.P. 61.² Thus, this Court has held that in cases where "a trial court errs in the admission or exclusion of evidence, we will grant a new trial only if the error affected a substantial right." State ex rel. Winder v. Canyon Vista Family...