Purina Mills, Inc. v. Odell

• Decision Date: 05 August 1997
• Docket Number: No. 06-96-00066-CV,06-96-00066-CV
• Citation: 948 S.W.2d 927
• Parties: PURINA MILLS, INC. and Franklin County Feed & Supply, Inc. d/b/a Tri-County Feed & Supply, Appellants, v. Mike ODELL and Rose Odell, Appellees.
• Court: Texas Court of Appeals

Page 927

948 S.W.2d 927

PURINA MILLS, INC. and Franklin County Feed & Supply, Inc. d/b/a Tri-County Feed & Supply, Appellants, v. Mike ODELL and Rose Odell, Appellees.

No. 06-96-00066-CV.

Court of Appeals of Texas Texarkana.

Submitted March 11, 1997.

Decided June 20, 1997.

Rehearing Overruled Aug. 5, 1997.

Jim L. Flegle, Bracewell & Patterson, Dallas, Raymond R. Johnson, Sulpher Springs, for appellants.

Carl Bryan, Bryan & Mattison, Sulphur Springs, John R. Mercy, Atchley, Russell, Waldrop, Texarkana, for appellees.

Before CORNELIUS, C.J., and GRANT and ROSS, JJ.

OPINION

CORNELIUS, Chief Justice.

Purina Mills and Franklin County Feed & Supply appeal from a judgment based on a jury verdict finding them liable for damages to Mike Odell's 200-head dairy herd. ¹ Odell alleged, under several different theories of recovery, that his herd was injured by consuming metal contaminated feed. The feed was manufactured by Purina and sold by Franklin County Feed & Supply. The jury awarded approximately $631,000.00 in damages for lost market value, lost past and future milk production, and mental anguish. The jury also awarded Odell attorney's fees of 33-1/3% of his total recovery.

Purina assigns twenty-four points of error. Because we find that the trial court erred in admitting the testimony of Odell's expert witnesses and that there is factually insufficient evidence to establish causation, we reverse the judgment of the trial court and remand the case for a new trial. We do not reach Purina's other contentions.

Mike Odell operates a dairy farm near Como, Texas. He has about 200 cows in his herd. Odell started dairy operations in November 1974. He originally fed his cows a complete feed mix, but after a few years installed a feed mill and started making his own mix meal. Odell mixed his own feed from 1975 until December 19, 1994. He did not have any problems with the quality of his mixed feed. As a precautionary measure, the finished feed was transported by a conveyor belt past a magnet so that bits of metal that might have gotten into the feed during the grinding process were removed before its final deposition in the feed tank.

Odell wanted to increase the milk production of his herd. Several friends told him they were seeing increased milk yields after switching to Purina feed. In December 1994, Odell decided to stop grinding his own mix and use a Purina feed mix. Odell received his first delivery of 20,000 pounds of straight pellet mix on December 19, 1994. Tri-County delivered the feed. About 16,000 pounds of the feed was placed in Odell's Number One tank, with the remainder placed in his secondary feed tanks. All future deliveries in excess of 16,000 pounds followed this procedure. The Number One tank delivered the feed directly to the barn, where it was fed to Odell's dairy cows. There was no magnet on the conveyor system transporting feed from the Number One tank to the barn. When the Number One tank was empty, Odell replenished the tank by transferring feed from the secondary tanks. The transferred feed passed over a magnet before it was put in the Number One tank.

Odell noticed that several cows became ill after eating the Purina feed. The herd's milk production also declined. Odell met with Tri-County representatives and told them about the problem. Rob Wagner, the manager of Tri-County, inspected Odell's operations in January 1995 and suggested changing the feed composition to a pellet and flaked corn mix. Odell saw an immediate increase in milk production.

Odell stopped checking the magnets on his feed delivery system when he switched to the Purina feed. At the end of April 1995, he checked the magnet and discovered Purina feed pellets adhering to the magnet. The pellets were contaminated with metal particles. Odell removed the feed pellets from the magnet, but did not inform Tri-County of his discovery. Odell testified that he thought the pellets might have accumulated on the magnet over several months.

On May 6, 1995, Odell took delivery of another load of Purina feed. He fed it to his herd. When the Number One tank was empty, Odell followed his usual procedure of replenishing it from the secondary feed tank. On May 13, 1995, Odell checked the magnet between the secondary feed tank and his Number One tank. He discovered Purina feed adhering to the magnet. The pellets were contaminated with metal particles, metal shavings, rust, pieces of wire, and staples. Odell removed the metal contaminated pellets and took them to Tri-County, where he informed Jim Brown and Rob Wagner of the problem. Jim Brown is a Purina representative. Brown and Wagner assured Odell that the contamination problem would be quickly resolved and that Purina would compensate him for any damages.

In May 1995, Odell received another load of Purina feed. He repeated the previously described process and, after transferring the feed between the tanks, discovered more metal contaminated Purina feed adhering to the magnet. He removed the metal contaminated feed pellets and took them to Tri-County Feed. Odell gave the sample to Jim Brown. Brown reassured Odell that the contamination problem would be resolved.

Shortly thereafter, Fred Bryant, general manager of Purina's Fort Worth manufacturing facility, contacted Odell. Bryant asked if Wagner and Brown could visit Odell's farm to collect a sample of the feed. Odell agreed. Wagner and Brown collected feed samples from the Number One tank. They also checked the magnet. They discovered more metal contaminated pellets. Wagner and Brown took possession of the pellets.

Sometime in May 1995, Dean McMahon and Roger Jones also met with Odell at his farm regarding the health problems of his cows. McMahon and Jones are Purina representatives and nutrition experts. Odell showed them several cows that had been diagnosed and treated for displaced abomasum. ² McMahon felt that the hay Odell was using as forage for his herd might be the source of his problems and recommended that Odell procure a better quality hay.

On May 19, 1995, Odell accepted delivery of another load of feed. Odell repeated the previously described process and, once again, after transferring feed between the tanks, discovered metal contaminated feed pellets adhering to the magnet. He removed the metal contaminated pellets. These pellets were admitted at trial as Plaintiffs' Exhibit # 2. The sample contained feed pellets impregnated with metal particles, metal shavings, rust, staples, and a piece of wire. Odell contacted Tri-County and informed Wagner or Brown of the problem.

Odell received four more deliveries of Purina feed. ³ He followed the same routine as he had with previous deliveries. After feeding each load to his herd, Odell discovered that each had contained metal contaminated feed pellets. Odell stopped all deliveries in June 1995.

Odell said his cows started getting sick in the early part of 1995. Some of the sick cows were diagnosed with hardware disease ⁴ and others with displaced abomasum. The nature and extent of these injuries form the basis of this cause of action.

Purina contends in points ten through twelve that the trial court erred in overruling its motions to exclude or strike the testimony of Odell's veterinary experts, its motion for judgment non obstante veredicto, and its motion for new trial, because the plaintiffs' expert testimony was unreliable and inadmissible under the standard stated in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995). In effect, Purina challenges the legal and factual sufficiency of the evidence supporting the jury's verdict. We agree that the expert testimony should have been excluded and that the evidence is factually insufficient.

The standard of review for assessing a trial court's decision to admit an expert's testimony or deny a motion for new trial is whether the court abused its discretion by acting without reference to guiding rules or principles. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d at 558; Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). This determination is a question of law. North Dallas Diagnostic Ctr. v. Dewberry, 900 S.W.2d 90, 93-94 (Tex.App.-Dallas 1995, writ denied). A reviewing court cannot conclude that a trial court abused its discretion merely because it would have ruled differently. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d at 558.

The standard of review used to determine the validity of a trial court's granting or refusing a judgment notwithstanding the verdict is the same as that used for review of a "no evidence" claim. Dowling v. NADW Mktg., Inc., 631 S.W.2d 726, 728 (Tex.1982). A legal principle that prevents a party from prevailing on its claims justifies granting judgment notwithstanding the verdict. Atlantic Richfield Co. v. Misty Products, Inc., 820 S.W.2d 414, 420-21 (Tex.App.-Houston [14th Dist.] 1991, writ denied). All testimony must be considered in the light most favorable to the party against whom the motion is sought, and every reasonable evidentiary inference must be indulged in that party's favor. Id. We cannot overturn the fact finder's ruling unless only one inference can be drawn from the evidence. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461 (Tex.1992).

Dr. J.D. Norris and Dr. Brian Heim are licensed Texas veterinarians and were called as expert witnesses for Odell. Odell correctly contends that the admissibility of expert testimony is governed by Rule 702 of the Texas Rules of Civil Evidence. See Broders v. Heise, 924 S.W.2d at 152. Rule 702 requires that: 1) the expert witness is qualified; 2) the expert's testimony consists of "scientific, technical, or other specialized knowledge"; and 3) the testimony assists the trier of fact to understand the evidence or determine a fact in issue. TEX.R. CIV. EVID. 702; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d at 556.

Odell's...