Robbins v. Farmers Union Grain Terminal Ass'n
| Decision Date | 08 April 1977 |
| Docket Number | No. 76-1413,76-1413 |
| Citation | 552 F.2d 788 |
| Parties | 1 Fed. R. Evid. Serv. 1320 Wayne ROBBINS et al., Appellees, v. FARMERS UNION GRAIN TERMINAL ASSOCIATION, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
C. Arlen Beam, Lincoln, Neb., for appellant; Larry L. Ruth, Lincoln, Neb., Chester A. Groseclose, Jr., Aberdeen, S. D., on the brief.
Ross H. Oviatt, Watertown, S. D., for appellees.
Before LAY and STEPHENSON, Circuit Judges, and WANGELIN, * District Judge.
Farmers Union Grain Terminal Association (GTA) appeals from the award of $391,908.21 damages in favor of Wayne Robbins, Charles Robbins and James Robbins for the loss or damage to their cattle allegedly caused by a feed supplement, Rum-Liq, manufactured by GTA. The jury found the defendant liable under alternative theories of negligence, breach of implied warranty and strict liability.
On appeal the defendant has assigned numerous errors. We discuss as relevant to our holding: (1) whether there was sufficient evidence of negligence; (2) whether such negligence was the proximate cause of the plaintiffs' damage; (3) whether the trial judge properly admitted evidence of a remedial warning; and (4) whether the evidence supports the damages found by the jury. Finding no prejudicial error, we affirm the judgment of the district court. 1
Factual Background.
The plaintiffs are partners in a cattle feeding operation near Watertown, South Dakota. In the fall of 1971 they purchased 3,259 calves with an average weight of 412 pounds. The calves were started on a feeding program which included Rum-Liq, a cattle feed protein supplement advertised as aiding in weight gain and being more economical than other protein sources. The main ingredient of Rum-Liq is urea, a widely used non-protein nitrogen substance which ruminant animals are able to convert into protein.
GTA's product bore a tag which stated:
WARNING Follow directions on back of tag. . . .
The relevant part of the tag providing the feeding instructions read:
STARTING CATTLE ON FEED: Cattle coming into feedlot have normally been subjected to considerable stress shipping, changes in feed, water and environment. Fresh, clean water and medium quality hay should be available in the feedlot when the cattle arrive. The first ten days follow the recommended programs using GTA ROUGHAGE ROUSER MEDICATED or GTA BEEF START MEDICATED. At the close of this period, change to a recommended GTA feedlot feeding program.
The plaintiffs started feeding each calf one-quarter pound of Rum-Liq daily. They gradually increased the dosage so that fourteen days after the calves arrived in the feed lot they were receiving one pound of Rum-Liq per day. After the fourteen-day "conditioning period," the calves were moved to outer pens where they continued to receive one pound of Rum-Liq each day. During the second week in November of 1971 some of the calves died and others were uncoordinated, bloated, urinating frequently, shaking and shivering, showing white foaming saliva, and breathing hard.
The Robbins first suspected that the calves were suffering from a respiratory disease, and they attempted treatment, but the calves did not respond. On December 8, 1971, after 77 animals had died and approximately 600 others were sick, two animals were taken to the diagnostic laboratory at South Dakota State University at Brookings. The lab found that blood of the two calves had a high level of ammonia, and they advised the plaintiffs, on the same day, that this could be the result of urea feeding. The plaintiffs immediately cleaned all the feed containing Rum-Liq out of the feed bunks, and stopped adding Rum-Liq to the feed. The sudden death losses decreased rapidly after December 9 and few animals subsequently developed the above described symptoms.
Beginning on March 7 the plaintiffs shipped their cattle for "finishing" to a commercial feed lot in Nebraska. According to plaintiffs' proof each of the seven shipments of cattle, when sold, weighed less on an average than normally expected and each shipment incurred extra feed and drug costs. An additional 59 head died at the commercial lot and 64 were sold early.
The plaintiffs sought the following damages: $2,000 for the Rum-Liq; $12,000 for extra veterinary expenses; $64,000 for the 342 dead animals (this figure took into account normal or expected deaths); $73,000 for extra feed; and $185,000 for losses on early sales and failure of the cattle to gain weight.
Negligence.
The thrust of plaintiffs' case is that GTA failed to give adequate warnings for the safe and effective use of its product. 2 Plaintiffs claim that GTA knew or should have known that, although their instructions recommended waiting 10 days before starting calves on a full feeding program, experts recommended a longer delay.
Plaintiffs' animal nutrition experts testified that a manufacturer should warn a feeder to wait 28 to 30 days before starting calves on a high percentage urea feeding program such as Rum-Liq. Furthermore, Dr. Britzman, the Director of Animal Nutrition, Research and Management Services for GTA admitted that he knew of one authority who recommended that urea not be fed to calves within four weeks of weaning and that another authority questioned the feeding of urea to unadapted calves during early feed lot stages. From this evidence a jury could find that GTA's instructions inadequately warned of the danger of feeding urea to unadapted calves and that GTA had or through the exercise of reasonable care should have had knowledge of the dangers of urea. 3
Causation.
The defendant claims that the plaintiffs failed to prove that Rum-Liq caused the death and sickness of plaintiffs' cattle. GTA points out that, if plaintiffs' experts are believed, the cause of the death and sickness was "ammonia toxicosis." Because other sources of protein produce ammonia when broken down in the same process as is urea, the defendant argues that plaintiffs have failed to connect the high level of ammonia in the blood supply to its product.
While there is dispute among the experts as to the cause of the death and sickness, three experts testified that they diagnosed the cause as high levels of ammonia in the blood stream with urea as the source "urea toxicosis." Other evidence reveals that defendant's product was the source of urea. Thus there is evidence from which a jury could find that the cause of the deaths and sickness was ammonia toxicosis; that the source of the excess ammonia was urea; and that Rum-Liq was the urea source.
GTA further contends that the plaintiffs did not prove that the defendant's failure to adequately warn was the proximate cause of its damage since there was no evidence that plaintiffs would have heeded a different warning had one been given. The defendant contends that they rebutted the presumption that plaintiffs would have heeded different instructions, 4 by showing that the plaintiffs failed to follow the instructions that were given. 5
At best, the instructions were ambiguous and the issue was properly presented to the jury. Cf. Sterner v. U. S. Plywood-Champion Paper, Inc., 519 F.2d 1352 (8th Cir. 1975); Buffington v. Amchem Products, Inc., 489 F.2d 1053 (8th Cir. 1974). The trial court instructed the jury that failure to follow the instructions would be contributory negligence and would bar recovery if it was the proximate cause of the deaths and sickness. We find no error here.
Our examination of the record demonstrates that plaintiffs made a submissible case of negligent failure to warn. Therefore, it is not necessary for us to discuss the various issues GTA has raised concerning the applicability of implied warranty and strict liability. 6
Subsequent Remedial Warning.
On December 31, 1971, GTA mailed the following notice to its sales personnel:
File copy distributed to all division personnel 1/12/72 SUPPLEMENTARY DIET FOR "NEWLY ARRIVED" FEEDLOT CATTLE
It is not recommended that high urea supplements (liquid or dry) be fed to cattle which have recently been placed in the feedlot. These cattle should be allowed time to overcome the stresses associated with shipment, vaccination, and adjustment to feedlot conditions. This may involve as long as 28-30 days. During this period, GTA ROUGHAGE ROUSER MEDICATED, or a similar low-urea supplement, should be fed.
Additional recommendation for handling and starting newly arrived feeder cattle are given on the attached sheets.
Department of Animal Nutrition, Research and Management Services.
Plaintiffs offered this letter into evidence as relevant to the strict liability count to show an unreasonably dangerous and defective product. Plaintiffs also sought to show the feasibility of issuing such a warning in 1971 under their negligence theory. GTA objected that the exhibit was inadmissible on both counts under Fed.R.Evid. 407. 7 The trial court ruled that the letter was admissible as substantive evidence since Rule 407 did not apply to strict liability, but that it would not be admissible on the negligence count unless feasibility was "controverted" as required by Rule 407. Plaintiffs then requested GTA to admit feasibility, and when GTA refused the trial court ruled that plaintiff could show that it was feasible to give the remedial instruction prior to the plaintiffs' purchase of the feed supplement.
On appeal GTA asserts that the exhibit should have been excluded under Rule 407 on both the strict liability and negligence counts and urges that the feasibility of giving the precautionary measure was not properly controverted. In addition GTA claims that the trial court failed to give any limiting instruction as to the exhibit's admissibility, and that the plaintiffs improperly argued to the jury that the post-remedial measure was evidence of GTA's negligence.
We need not consider whether the issue of feasibility was properly...
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