Stover v. Eagle Products, Inc.

• Citation: 896 F. Supp. 1085
• Decision Date: 17 August 1995
• Docket Number: No. 93-4047-SAC.,93-4047-SAC.
• Parties: Russell STOVER and Marge Stover, Husband and Wife, Plaintiffs, v. EAGLE PRODUCTS, INC., Defendant.
• Court: U.S. District Court — District of Kansas

896 F. Supp. 1085

Russell STOVER and Marge Stover, Husband and Wife, Plaintiffs, v. EAGLE PRODUCTS, INC., Defendant.

No. 93-4047-SAC.

United States District Court, D. Kansas.

August 17, 1995.

Gavin Fritton, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, KS, G. Michael Fatall, Sanders & Simpson, P.C., Kansas City, MO, for Russell Stover, Marge Stover, Helen Shelley, Catherine Boehm, Jean Van Epps and Pam Stallbaumer.

Judy A. Pope, Dickson & Pope, P.A., Topeka, KS, G. Michael Fatall, Sanders & Simpson, P.C., Kansas City, MO, for Jean Van Epps.

James P. Nordstrom, Donald Patterson, Fisher, Patterson, Sayler & Smith, Topeka, KS, for Eagle Products, Inc.

MEMORANDUM AND ORDER

CROW, District Judge.

In this diversity of citizenship, products liability action, the plaintiffs, Russell and Marge Stover, claim that they have suffered economic loss due to the breaches of the implied warranty of fitness for a particular purpose and of the implied warranty of merchantability by the defendant, Eagle Products, Inc., a seller of dog food. The Stovers also contend that Eagle Products is liable under a theory of strict liability. The Stovers claim that Eagle Products' feed product was low in calcium, causing certain defects and abnormalities in their dogs which they raised for sale. The Stovers seek damages in the amount of $300,000.

This case comes before the court upon the following motions filed by Eagle Products:

1. Motion for Summary Judgment (Dk. 107).

2. Motion to Strike Affidavit (Dk. 114).

Eagle Products' motion for summary judgment is primarily a challenge on the issue of causation—Have the plaintiffs presented sufficient evidence for a rational factfinder to conclude that there was a causal relationship between the Stovers' use of Eagle Products' dog food and the defects and abnormalities in the Stovers' dogs? Specifically, Eagle Products argues that the testimony of the plaintiffs' experts does not meet the standards of admissibility under the Federal Rules of Evidence and therefore it is entitled to summary judgment. Eagle Products also argues that the Stovers' claim based upon a breach of the implied warranty of fitness for a particular purpose fails as a matter of law.

Eagle Products' motion to strike challenges the April 5, 1995, affidavit of the plaintiffs' expert, Dr. Frederick W. Oehme. Dr. Oehme is a licensed veterinarian and an expert in veterinary toxicology at Kansas State University in Manhattan, Kansas. Eagle Products contends that the affidavit fails to comply with D.Kan.Rule 206(c) or Fed. R.Civ.P. 56(e). Eagle Products argues that the post-deposition affidavit is merely a sham—drafted in an obvious attempt to evade summary judgment.

The Stovers oppose Eagle Products' motion for summary judgment and motion to strike. The Stovers contend that Dr. Oehme is a qualified expert and that his opinion is sufficient to survive Eagle Products' attack. The Stovers suggest that Eagle Products' arguments challenging Dr. Oehme's opinions go to the weight, rather than the admissibility of the evidence. The Stovers contend that the issue of causation is one for the jury and that Eagle Products' motion should be denied.

The Stovers contend that Eagle Products' motion to strike is basically an invitation by the defendant for the court to sit as the trier of fact. The Stovers argue that Eagle Products has failed to demonstrate that Dr. Oehme is not qualified or that there are insufficient facts to support his opinion.

Brief Summary of the Facts¹

In January of 1989, the Stovers began their puppy operation with two small dogs. Marge Stover primarily managed the operation. Eventually the breeding stock was built to a population of approximately three hundred, including fourteen toy breeds, bishons, Chihuahuas, Japanese Chins, dachshunds, Maltese, papillions, Pekingese, pomeranians, toy poodles, pugs, Shih Tzus, shelties, yorkies, westies, cockers and basset hounds. Marge Stover became licensed by the State of Kansas as a dog kennel keeper in 1989. As dogs were purchased to increase the number of breeding stock, none of the dogs were inspected by a veterinarian.

Initially the Stovers' dogs were fed a dog food called "K-9." Almost all of the dogs were fed by a technique allowing the dogs to eat their fill. Pups were fed a product called Eukanuba, a non-Eagle Products product. Beginning in November 1989, adult dogs were fed products manufactured by Eagle Products. The Stovers continued feeding Eagle Products to their breeding stock until January 22, 1992, when the purchase on that date was returned for a refund. The only non-Eagle Products food fed their pups was Eukanuba, which was fed to puppies at five weeks, as well as to nursing mothers.

At the time the Stovers began using Eagle Products' feed, the Stovers noticed no problems associated with the use of Eagle Products' products; losses in the kennel were acceptable and minimal. Marge Stover eventually discontinued using Eagle Products' products because the dogs were not eating it, not because of any other problem. Marge Stover had the feed analyzed, but the report revealed no toxins, aflatoxins, or mycotoxins in the feed. In March of 1992, samples of the feed were again analyzed, but no sign of aflatoxin were found.

The Stovers attribute several defects and abnormalities to the use of Eagle Products' feed. The Stovers claim that low calcium in Eagle Products' dog food caused the problems in their dogs. In an affidavit attached to the plaintiffs' response to Eagle Products' motion for summary judgment, Dr. Oehme states in part:

I have rendered opinions in this case in my "Expert Report" and in my deposition that the anomalies occurring at the Stover Kennels in late 1991 and early 1992 were most probably the result of calcium deficiencies in the Eagle Dog Food that was being fed to the dogs at the Stover Kennels during that period of time. I have stated this opinion to a reasonable degree of certainty.

. . . . .

It remains my opinion that the Stover's (sic) losses are the direct result of a nutritional deficit in the Eagle food product that was being fed during the time period in question."

Affidavit of Frederick W. Oehme, dated April 5, 1995.

Summary Judgment Standards

Although Kansas law supplies the elements of the Stovers' claims,² federal law governs the court's determination of whether Eagle Products is entitled to summary judgment. See Richter v. Limax Intern., Inc., 45 F.3d 1464, 1470 (10th Cir.1995). A court grants a motion for summary judgment if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The substantive law governing the suit dictates which facts are material or not. Id. at 248, 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "There are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).

The movant's burden under Rule 56 of the Federal Rules of Civil Procedure is to lay out the basis of its motion and to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, ___ U.S. ____, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). "A movant is not required to provide evidence negating an opponent's claim." Committee for First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir.1992) (citation omitted).

If the moving party meets its burden, then it becomes the nonmoving party's burden to show the existence of a genuine issue of material fact. Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir.1991); see Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) ("If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case."). When the nonmoving party will have the burden of proof at trial, "`Rule 56(e) ... then requires the nonmoving party to go beyond the pleadings and by her own affidavits or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). "Unsubstantiated allegations carry no probative weight in summary judgment proceedings." Phillips v. Calhoun, 956 F.2d 949, 951 (10th Cir.1992) (citations omitted); see Martin, 3 F.3d at 1414 (non-moving party cannot rest on the mere allegations in the pleadings). "Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment." Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 929 (7th Cir. 1995); see Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir.1993) ("Optimistic conjecture, unbridled speculation, or hopeful surmise will not suffice."). The court views the evidence of record and draws inferences from it in the light most favorable to the nonmoving party. Burnette v. Dow Chemical Co., 849 F.2d at 1273.

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy...