Schafersman v. Agland Coop.

Decision Date20 July 2001
Docket NumberNo. S-98-623.,S-98-623.
Citation262 Neb. 215,631 N.W.2d 862
PartiesJohn SCHAFERSMAN and Eileen Schafersman, husband and wife, Appellees, v. AGLAND COOP, a Nebraska cooperative corporation, Appellant.
CourtNebraska Supreme Court

Dan H. Ketcham, Omaha, and Jason R. Yungtum, of Engles, Ketcham, Olson & Keith, P.C., for appellant.

David A. Domina, Omaha, and Pamela J. Dahlquist, of Domina Law, P.C., for appellees.


GERRARD, Justice.


John Schafersman and Eileen Schafersman sued Agland Coop (Agland), a Nebraska cooperative corporation, and won a $120,000 jury verdict, based upon the jury's finding that contaminated hog feed, negligently delivered to the Schafersmans, caused illnesses and deaths among the Schafersmans' herd of dairy cows. Agland seeks further review of a decision of the Nebraska Court of Appeals affirming the district court's judgment. The primary question presented in this appeal is whether sufficient foundation was presented for the opinion of the Schafersmans' expert witness, Dr. Wallace Wass.

For the reasons that follow, we conclude that the district court abused its discretion in permitting Wass to testify regarding his theory that "multiple mineral toxicity" caused the injuries to the Schafersmans' cows and, therefore, reverse the judgment of the district court and remand the cause for a new trial. Furthermore, we conclude that the framework for evaluating expert opinion testimony in Nebraska should no longer be guided by Frye v. United States, 293 F. 1013 (D.C.Cir.1923), but should instead reflect the criteria set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny.


The Schafersmans operate a commercial dairy farming operation in Washington County, Nebraska. Agland sells grain and feed for various agricultural endeavors. On the date of the incident that forms the basis of the Schafersmans' claims, they allege that there were 54 lactating cows in their dairy herd and 21 additional cows that were not lactating located in a "dry lot."

The Schafersmans allege that in June 1994, they ordered 40 bushels of unadulterated commercial grade oats from Agland. On June 22, Agland delivered 3,260 pounds of product to the Schafersmans' grinder-mixer, to be mixed with other ingredients for the Schafersmans' dairy mix, and from which the mix was augered into a gravity bin to be fed directly to the cows.

Agland does not dispute that the oats were contaminated with "Envirolean 2.5L Swine Concentrate" (Envirolean), a hog premix concentrate that included high-protein minerals, vitamins, and other micronutrients. The Schafersmans allege that they noticed the contaminant just after the oats were delivered, but that they were verbally reassured by Agland that the substance was harmless.

The Schafersmans further allege that after the mixture was fed to the dairy herd, the cows went off their feed and milk production dropped. The Schafersmans allege that the cows dried up, became lame, and developed poor body condition; that some died or were liquidated; and that none of the 54 cows that consumed the mix ever returned to proper milk production. The Schafersmans allege that of the 54 lactating cows that consumed the contaminated feed, 23 dried up in July, 31 dried up later, some developed jaundice, and many developed diarrhea.

The Schafersmans claimed damages for lost milk production, cows lost to natural death or slaughter, increased labor costs, and veterinary costs, for a total of $117,743.29 in special damages. The Schafersmans' operative petition claimed theories of recovery in negligence, implied warranty, express warranty, and misrepresentation, although the latter theories were voluntarily dismissed by the Schafersmans at trial. Agland's answer asserted that the Schafersmans were contributorily negligent in failing to allow Agland to remedy the contamination, in continuing to feed the contaminated feed to the cows after problems developed, and in failing to immediately notify Agland or consult a veterinarian.

At trial, the Schafersmans presented the expert opinion testimony of Wass, who opined that the alleged damage to the Schafersmans' cows was caused by "multiple mineral toxicity," a condition that Wass said was the result of the aggregation of above-normal quantities of minerals potentially toxic to dairy cows. Agland filed a motion in limine seeking to prevent Wass' testimony and objected at trial on foundational grounds, but both the motion in limine and the foundation objection were overruled. The substance of Wass' testimony is set forth in more detail in the analysis portion of this opinion. Agland's expert witness testified that the Envirolean contained no minerals above tolerable levels and that the contaminated feed was nontoxic and did not harm the cows.

After the case was submitted, the jury returned a verdict finding for the Schafersmans on the negligence theory of recovery. The jury found the Schafersmans' total damages to be $147,190, found that the Schafersmans failed to mitigate their damages in the amount of $27,190, and returned a verdict for the Schafersmans in the amount of $120,000. The district court entered judgment accordingly.

Agland appealed to the Court of Appeals, which affirmed the judgment of the district court. See Schafersman v. Agland Coop, No. A-98-623, 2000 WL 704984 (Neb.App. May 30, 2000) (not designated for permanent publication). We granted Agland's petition for further review.


Agland assigns, consolidated and restated, that the Court of Appeals erred in determining that (1) Wass' expert testimony was properly admitted, (2) contributory negligence should not have been submitted to the jury, and (3) the jury was properly instructed regarding damages and that the damages were supported by the evidence.


A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion. Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Noonan v. Noonan, 261 Neb. 552, 624 N.W.2d 314 (2001).


The first argument to be addressed is Agland's claim that Wass' opinion lacked appropriate foundation. In connection with this claim, Agland argues on further review that this court should again consider adopting the standards for evaluating expert opinion testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See, generally, Phillips v. Industrial Machine, 257 Neb. 256, 597 N.W.2d 377 (1999) (Gerrard, J., concurring, joined by Hendry, C.J., and Miller-Lerman, J.).


Wass is a professor at Iowa State University in the department of diagnostic and production animal medicine and was head of that department when it was known as the department of clinical sciences. Wass is board certified in veterinary internal medicine, and he specializes in diseases of metabolism, nutrition, and toxicology. Wass obtained both a bachelor of science degree in agriculture and a doctor of veterinary medicine degree from the University of Minnesota, and later obtained a doctorate degree in veterinary medicine with a minor in pathology from the same university.

Wass testified that in preparing his opinion, he physically went to the Schafersman farm, but only examined the Schafersmans' records relating to the cows. Wass admitted that he did not perform a clinical examination of any of the cows and did not treat the cows. Wass did not perform any tests on the cows to rule out other causes of the jaundice that had been observed in the cows by the Schafersmans' veterinarian, nor did he test for copper toxicity, which Wass opined was a contributing factor to the illness afflicting the cows. Wass performed no tests to rule out other potential causes for the alleged drop in milk production. Wass acknowledged that he should have tested for copper toxicity and performed other tests on the cows. Wass further testified that while he tested a sample of the mixture delivered to the Schafersmans by Agland, he did not test the composition of the total ration actually fed to the cows after it was combined by the Schafersmans with corn and other nutrients.

Nonetheless, Wass testified that it was his opinion that the problems with the cows were caused by the Envirolean because the cows that had eaten the Envirolean-contaminated mix became sick. The basis for Wass' opinion was his theory that the cows were afflicted with "multiple mineral toxicity," which Wass claimed could result when a number of potentially toxic minerals were simultaneously fed to cows in otherwise-tolerable quantities. Wass admitted that no minerals were present in the feed that were, singly, above scientifically accepted toxic or even tolerable levels.

With respect to the theory of multiple mineral toxicity, Wass testified that he had neither studied multiple mineral toxicity nor authored any publications concerning multiple mineral toxicity. Wass testified that he was aware of no controlled studies that related to multiple mineral toxicity, although he claimed that people in the field have observed it. Wass conceded that the theory he proposed set forth no standard for determining what levels of any given minerals could result in a toxic effect. In his deposition, which was admitted at the hearing on Agland's motion in limine, Wass stated that he had seen a...

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