Tipmont Rural Elec. Membership Corp. v. Fischer, 61A05-9604-CV-135

• Decision Date: 09 July 1998
• Docket Number: No. 61A05-9604-CV-135,61A05-9604-CV-135
• Citation: 697 N.E.2d 83
• Parties: TIPMONT RURAL ELECTRIC MEMBERSHIP CORPORATION, Appellant-Defendant, v. Gregg FISCHER and Susan Fischer, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 83

697 N.E.2d 83

TIPMONT RURAL ELECTRIC MEMBERSHIP CORPORATION, Appellant-Defendant, v. Gregg FISCHER and Susan Fischer, Appellees-Plaintiffs.

No. 61A05-9604-CV-135.

Court of Appeals of Indiana.

July 9, 1998.

Order Substituting Citation, July 29, 1998.

Rehearing Denied Nov. 2, 1998.

Peter L. Obremskey, Parr Richey Obremskey & Morton, Lebanon, John R. Kenley, Kenley & Kenley, Rockville, for Appellant-Defendant.

James O. McDonald, Everett Everett & McDonald, Terre Haute, Max E. Goodwin, Terre Haute, for Appellees-Plaintiffs.

OPINION

SHARPNACK, Chief Judge.

Tipmont Rural Electric Membership Corporation ("Tipmont") appeals a judgment in favor of Gregg and Susan Fischer for $1,683,800. Tipmont raises five issues, which we consolidate and restate as:

1) whether the Fischers failed to establish that the reduction in milk production in their cows was proximately caused by stray voltage in their dairy facilities;

2) whether the damage award was excessive and outside the scope of the evidence presented; and

3) whether the trial court erroneously instructed the jury that it could award damages for loss of cull cow income, unborn calf income, and prejudgment interest.

We affirm.

FACTS

The facts most favorable to the judgment follow. On May 12, 1992, the Fischers filed a complaint against Tipmont alleging damages caused by stray voltage ¹ on their dairy farm. The complaint sounded in products liability, negligence, breach of warranty of fitness for a particular purpose, and punitive damages.

On October 11, 1994, a jury trial began in Parke Circuit Court. The case was submitted to the jury twenty-one days later on the products liability, negligence, and punitive damages claims. On November 9, 1994, the jury returned a verdict in favor of Tipmont on the issue of products liability but was deadlocked on the issues of negligence and punitive damages. As a result, the trial court granted a partial mistrial. Thereafter, the remaining case was reassigned to a different judge for retrial.

In October of 1995, the trial that led to this appeal began on the issues of negligence and punitive damages. On December 20, 1995, the jury returned a verdict in favor of the Fischers for $1,683,800.00 on the negligence claim but awarded no punitive damages.

DISCUSSION

On appeal, a general verdict will be sustained upon any theory consistent with the evidence. Picadilly v. Colvin, 519 N.E.2d 1217, 1221 (Ind.1988). We will neither reweigh nor judge the credibility of the witnesses, but will consider only the evidence most favorable to the judgment along with all reasonable inferences to be drawn therefrom. Annon II, Inc. v. Rill, 597 N.E.2d 320, 323 (Ind.Ct.App.1992), reh'g denied, trans. denied. We decide whether there is substantial evidence of probative value supporting the trial court's judgment. Id. Only where there is a total failure of evidence or where the jury's verdict is contrary to the uncontradicted evidence will it be reversed. Id. Thus, Tipmont labors under a heavy burden in asserting error.

I.

The first issue is whether the Fischers failed to establish that the reduction in milk production in their cows was proximately caused by stray voltage in their dairy facilities. ² A reasonable connection between a defendant's conduct and the damages which a plaintiff has suffered is an essential element in a cause of action for negligence. Johnson v. Owens, 639 N.E.2d 1016, 1023 (Ind.Ct.App.1994), reh'g denied, trans. denied. Proximate cause requires, at a minimum, that the harm would not have occurred but for the defendant's conduct. Id. For the plaintiff to carry the burden of proof, there must be evidence of probative value based on facts, or inferences to be drawn from the facts, establishing that the occurrence was the cause in fact of the injury. Daub v. Daub, 629 N.E.2d 873, 877 (Ind.Ct.App.1994), trans. denied. The plaintiff's burden may not be carried with evidence based merely upon supposition or speculation. Id. Standing alone, evidence which establishes a mere possibility of cause, or which lacks reasonable certainty or probability, is not sufficient evidence by itself to support a verdict. Id. The question of proximate cause is ordinarily for the jury to decide. Senco Products, Inc. v. Riley, 434 N.E.2d 561, 569 (Ind.Ct.App.1982).

We note that much of Tipmont's argument compares the qualifications and testimony of the Fischers' experts to that of its own experts. This argument goes to the weight and credibility to be given each expert's testimony. As we previously mentioned, we neither reweigh the evidence nor judge the credibility of the witnesses. See Annon II, 597 N.E.2d at 323. Rather, we focus our attention on whether the Fischers presented evidence from which the jury could reasonably conclude that the stray voltage caused the Fischers' injuries.

At trial, the Fischers called Keith Folger as an expert witness. Folger retired in 1988 as head of the Otter Tail Power Company stray voltage program. Folger explained the concept of stray voltage to the jury and how stray voltage may affect cows. Folger testified that during his career, he had tested for stray voltage on more than 800 dairy farms and had taken corrective measures when stray voltage was determined to be a problem. Folger also stated that he had been a consultant for seven dairy farms on issues related to stray voltage since he left Otter Trail Power Company.

During his testimony, Folger testified that he had observed the reaction of milk cows on many farms where stray voltage had ranged from .5 volts to 1 volt. Folger indicated that the common reactions of cows at that voltage level include production of milk with a high somatic cell count, ³ nervousness, reluctance to enter the milking parlor, and a dull coat. Folger further stated that, in general, somatic cell counts in the milk dropped dramatically, the cows' coats brightened, and the cows looked healthier after these levels were corrected for six months. In addition, in one of the exhibits entered into evidence, Folger explained that once stray voltage is reduced to .35 volts or less, the cows are less nervous, enter milking parlors easier, have increased milk production, and take less time to milk.

Folger also offered testimony concerning his work with the Fischers' farm. Folger conducted his first tests on their farm on March 20, 1992, after Tipmont had installed a blocker isolating the dairy barn from Tipmont's primary neutral line. Folger indicated that the "cows were nervous and seemed to avoid making contact with building walls and the pipes in gates and dividers." Record, p. 3055. Folger concluded that had the dairy barn not been isolated, the cows would have experienced spikes of at least 2 volts and steady voltage of 1 volt. Furthermore, Folger indicated that the step potential between the holding pen and the milking parlor would have been similar. ⁴

Folger conducted another visit to the Fischers' farm in May of 1992. Folger again returned to the Fischers' farm in 1993 to examine the calf barn. Folger concluded that the voltage in the calf barn was high enough to cause problems. He found spikes from a water heater measuring higher than 2.5 volts. After concluding that the high voltage was coming from the heater, Folger returned to the farm with representatives of Tipmont and a veterinarian. After the visit, Folger issued a report indicating that if the calf barn was to operate during the next winter, some changes would have to be made because of the voltage problem. Folger also stated that although there were still problems with the calf barn, the cows in the holding area of the barn looked better during this visit since the barn service had been isolated. He further indicated that it looked like "two different herds of cows." Record, p. 3072.

Folger testified that in his opinion, the Fischers' dairy barn had experienced a problem with stray voltage for "many years" and that the calf barn had a problem in the winter when the Fischers were using the stock tank and heater. Record, p. 2972. The voltages present on the Fischers' farm were similar to or greater than voltages which Folger had learned through experience generally affected the cows' behavior and the somatic cell count of the milk. In addition, a Purdue study admitted into evidence confirmed Folger's opinion as to the relationship he had observed between voltages of .5 volts to 1 volt and somatic cell counts and milk production.

In addition to Folger, the Fischers called Layton Hoysler, an agriculture consultant. Hoysler testified that the industry standard was that .5 volts or above could have an effect on cattle and cause economic consequences. Hoysler testified that the Fischers were "following the practices that most dairymen do, as far as herd health." Record, p. 4557. He also testified that before the blocker was installed in the dairy barn, there were fifteen instances where somatic cell counts exceeded a million. Hoysler further stated that after the blocker was installed, there have been no instances of somatic cell counts exceeding a million. Hoysler's report issued following his examination of the Fischers' farm confirmed his testimony regarding the somatic cell counts. In addition, immediately following the graph of the somatic cell counts for the Fischers' farm, the report stated:

"It is our experience in working with many dairy herds in several states that stray voltage results in high somatic cell counts. Dairy experts and dairy health specialists appear to be unanimous in their agreement that there is a direct correlation between the high cell counts and injured udders which have scar tissue and reduced milk producing tissues. The final result is substantially reduced milk production and a likelihood of continued udder problems including mastitis."

Record, p. 4548. After studying the Fischer farm in detail, including other factors which might account for low milk production, Hoysler...