Winner Brothers, L.L.C. v. Seitz Elec.

• Decision Date: 15 May 2009
• Docket Number: No. 1740.,1740.
• Citation: 912 N.E.2d 1180,182 Ohio App.3d 388,2009 Ohio 2316
• Parties: WINNER BROTHERS, L.L.C., et al., Appellants, v. SEITZ ELECTRIC, INC., Appellee.
• Court: Ohio Court of Appeals

912 N.E.2d 1180

182 Ohio App.3d 388

2009-Ohio-2316

WINNER BROTHERS, L.L.C., et al., Appellants, v. SEITZ ELECTRIC, INC., Appellee.

No. 1740.

Court of Appeals of Ohio, Second District, Darke County.

Decided May 15, 2009.

Ricketts Co., L.P.A., and Charles H. Lease, Columbus, for appellants.

Utrecht & Young, L.L.C., and James D. Utrecht, Troy, for appellee.

WALTERS, Judge.

{¶ 1} Plaintiffs-appellants, Winner Brothers, L.L.C., and Four Star Dairy ("Winner"), appeal from a summary judgment rendered in favor of Seitz Electric, Inc. ("Seitz"). Winner contends that the trial court erred in granting summary judgment because there were genuine issues of material fact regarding its breach-of-contract claim. Winner also contends that the trial court erred in granting a motion in limine that limited the testimony of Winner's expert and precluded Winner from establishing proximate cause and damages on its negligence claim. Finally, Winner contends that the trial court erred in denying its motion to strike the testimony of Seitz's expert.

{¶ 2} We conclude that the trial court erred in limiting the testimony of Winner's expert, because there is legitimate disagreement about the scientific theory involved in the case, i.e., the extent of stray voltage required to adversely affect milk production in cows. Accordingly, the trial court erred when it weighed the evidence and gave preclusive effect to certain scientific studies. Consequently, the trial court also erred in rendering summary judgment on behalf of Seitz, because the evidence and the testimony of Winner's expert, when admitted, establishes genuine issues of material fact regarding the claims against Seitz. Finally, the trial court erred in overruling Winner's motion to limit the testimony of the defense expert. In rendering an opinion about stray voltage and its effect on animals and milk production, the defense expert relied wholly on scientific literature and was simply a conduit for the out-of-court statements of others. Accordingly, the judgment of the trial court is reversed, and this cause is remanded for further proceedings.

{¶ 3} In 1997, Winner and Seitz entered into a contract for electrical wiring to be installed in a new freestall dairy barn that Winner was building. Winner wanted to ultimately increase the size of its herd from about 200 to 1,200 Holstein cows. The barn was ready after October 1997, and Winner began adding cows. When Winner first started in the new facility, the cows milked well, but production never recovered after the hot summer of 1998. Winner consulted with five nutritionists to determine why the cows were not producing enough milk. In a normal herd, 75% of the cows should produce over 100 pounds of milk per day. However, Winner was lucky to have ten or 12 cows producing at that level. Winner also experienced problems with breeding.

{¶ 4} Winner experimented with the nutritionists' various suggestions for several years, but nothing really changed. These suggestions included feeding the cows more grain, lengthening the preparation time for milking (more massaging before the milking process began), removing some grain and substituting more fiber, and some changes in how the cows were being handled.

{¶ 5} The final group of nutritionists was from Land O' Lakes. One of these experts indicated that the Winner cows should be drinking 30 gallons of water per day, but they were not. Milk production was also dropping significantly at about 200 days after the cows gave birth. One of the Land O' Lakes experts matched Winner's data with data from 80 other herds and could find no explanation for these problems. After placing the question on the Internet, the expert received a response from a Pennsylvania State University professor, who suggested that the problem could be caused by stray voltage.

{¶ 6} Stray voltage is a small amount of voltage that can be measured between two contact points. If an animal comes into contact with these points, current will flow and can cause a response in the animal, depending on the amount of voltage and the resistance involved.

{¶ 7} After being alerted to this potential issue, Winner asked Buschur Electric Company to check for stray voltage in the spring of 2004. Buschur employees found that the freestall barn was not grounded at the main service box on the south side of the building (also referred to as the "backboard").

{¶ 8} In a barn of this type, there is no plumbing other than a water supply system, and the barn sits on a concrete pad. Water comes from a well to the pump house and is transported down the south side of the barn via two-inch PVC pipe. The pipe comes up out of the ground through the concrete pad. At that point, plastic water hoses are spliced to the pipe and are attached to a steel watering trough. As the cows drink and the water level goes down, the trough fills back up. The barn contained 16 stainless-steel watering troughs.

{¶ 9} After discovering that the main service box was not grounded, Buschur's general superintendent, Byron Bomholt, put in a ground rod and tested the voltage with a "Fluke" voltage meter. The meter showed .9 to 1.0 volts of electricity from the steel in the barn to the ground rod. Bomholt concluded that this was a high amount of voltage. Bomholt also found that the pump house was not grounded, either. After both locations were grounded and bonding was done, the reading on the water line in the pump house was .2, and the reading on the water fountain in the barn was also .2. Bomholt indicated that ideally, he would like zero voltage, but he considered these amounts acceptable.

{¶ 10} Following these repairs, milk production increased about 13 pounds per cow per day for about six weeks, or until July 2004. After that, production was steady for a bit and then began to slowly decrease. In October 2004, Winner asked Bomholt to come back out to check the voltage. At that time, Bomholt obtained a reading on the Fluke meter of .78 volts on the water line from the ground to the pump, because the pump was going bad. After Bomholt replaced the pump, he then obtained a reading of .54 volts.

{¶ 11} After the pump replacement, milk production went up a bit, but not the way it had after the previous repairs. Subsequently, at Winner's request, Dayton Power and Light Co. ("DP & L"), placed a blocker on its neutral, which should have eliminated more voltage. However, even after DP & L put on the blocker, the stray voltage was not entirely eliminated and stayed between .2 and .4 volts. Milk production also did not improve between that time and when the dairy herd and farm were sold in November 2006.

{¶ 12} In May 2006, Winner filed suit against Seitz, alleging negligence, breach of contract, breach of express and implied warranties that Seitz's work would be done in accordance with industry standards, and tortious interference with business relations. In an amended complaint, Winner alleged that it had sustained $5,433,600 in damages.

{¶ 13} During the discovery process, Winner identified Gerald Bodman as a voltage expert, and Seitz identified several experts, including Mike Wald, of Investigative Engineering, Inc. ("IEI"). In September 2007, Seitz filed a motion in limine, seeking to preclude Winner from offering opinion testimony linking any alleged stray voltage to claims of lost milk production. The basis for the motion was the lack of support in scientific literature for finding a causal connection between less than one volt of electrical current and reduced milk production. The motion was supported by Wald's investigation report. In the report, Wald noted that the maximum level of stray voltage shown at the dairy barn was one volt or less. Wald further observed as follows:

{¶ 14} "A review of the academic and industry literature on the subject of stray voltage at dairy farms revealed that while there has been significant research and testing on the effects of stray voltage, and specifically on milk production, not a single study has even suggested that the voltage levels documented at this barn (1 volt or less) could possibly cause a reduction in milk production. In fact, there have been specific studies showing that voltage levels many times higher than those which may have been present in this facility do not cause any negative effects."

{¶ 15} Also attached to the motion was United States Department of Agriculture and Agricultural Research Service ("USDA") Agricultural Handbook No. 696, "Effect of Electrical Voltage/Current on Farm Animals." This handbook was published in 1991 and is referred to in the industry as the "Redbook." In addition, Seitz submitted a 1995 study by the University of Wisconsin, an undated article on Michigan Stray Voltage Protocols, and a 2003 article written about stray voltage by a professor at the University of Wisconsin. This latter article indicated that the Public Service Commission of Wisconsin had identified one volt measured across a 500 ohm resistor as a level above which action should be taken.

{¶ 16} Winner's response included an affidavit from Gerald Bodman, who is a licensed professional agricultural engineer, as well as scientific articles and papers dated between 1982 and 1997. Bodman indicated that he had conducted extraneous-voltage investigations on over 1,000 farms, representing over 100,000 cows, in 22 to 27 states, and had served as an expert witness in at least 13 cases dealing with stray voltage. Bodman stated that he had conducted applied research on farms, in "real world" situations approximating conditions in the Winner freestall barn, where the soles of the cows' feet are in direct contact with manure. Bodman criticized the Redbook as unrepresentative of mainstream science as set out in the published literature and as being simply the opinion of a few authors who had appeared numerous times on behalf of utility companies.

{¶ 17} According to Bodman, the defense argument was also flawed because it...