Purina Mills, Inc. v. Askins

Robert L. Brown, Justice,

dissenting. The majority holds

that there was substantial evidence that the Purina feed caused serious illness in the Askins herd of dairy cows but that there was no evidence of a causal link between the deficient feed and the deaths of six cows. What the majority has failed to do is to examine all reasonable inferences from the evidence introduced and then to view the total proof in the light most favorable to the Askinses. That is the test. John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993). In my judgment, if the feed caused aborted calves, listlessness, diarrhea, loss of appetite, and inability to lactate and these conditions continued and progressed over a period of time, death was the inevitable result. The vitamin deficiency need only be a proximate cause of death — not the sole reason for the cows’ demise. Missouri Pacific R.R. v. Mackey, 297 Ark. 137, 760 S.W.2d 59 (1988); see also Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987).

One of the cows’ owners, Jim Askins, described the progression of the disease and the demise of his cows with these words:

I didn’t have any health problems that I considered [on] a herd basis in 1989. In 1990, after feeding the Purina feeds I had a whole herd health problem. I had cows that got very sick, cows that pushed themselves to come in the barn, they didn’t want to, but they knew that that was the routine. Those cows, some of those cows eventually just laid down and could not get up and come in the barn. They died. Other cows dropped dramatically in production and those cows that dropped so dramatic, based on that the breeding performance, cows that I could not get bred back, I had to cull some cows. They were not profitable to keep there.

The other owner, Robin Askins, described the cows’ illnesses and deaths this way:

The milk production fell off. The longer into it that it went, the thinner they became. A number of them eventually were down and were not able to get up.

The correlation between illness and death in this combined testimony is clear.

The majority states that the Askins expert witness, Dr. Glen Krumme, a practicing veterinarian, could not testify that the Vitamin A deficiency caused the cows to die. Yet he did not dismiss this conclusion out of hand. What Dr. Krumme actually testified to was that it was “highly probable” that the bad feed caused the problems to the cows. He then answered on cross-examination that he did not do the autopsies on the cows, and because of that he did not know exactly what caused the deaths:

Q. Are you able to testify that these cows that died, died because of a Vitamin A deficiency?
A. I have — I can’t testify to that one way or another.
A. Okay.
A. I wasn’t present around the cows to see them autopsied or anything. There’s lots of things that could have killed some of those cows. Some of them may have and some of them may not. I can’t testify to that for certain.

That is a far cry from the majority’s suggestion that Dr. Krumme dismissed the vitamin deficiency as a cause of death.

The same holds true of the animal nutritionist, Wayne Kellogg, who was called to testify for the Askinses and concluded after reviewing the records and reports on the Askins herd that there was an unusual loss of cows during the critical period of time. He was not called to testify about cause of death and did not do so. Yet, the majority extrapolates from Kellogg’s absence of testimony on this point positive proof that the Vitamin A deficiency did not cause the cows to die. On cross-examination when Kellogg was asked about cause of death, he answered as follows:

DEFENSE COUNSEL: Do you find that the results of the laboratory test show that the cow died because of a Vitamin A deficiency?
KELLOGG: There’s no evidence there that that was the case. The — in fact the Vitamin A was not even run.

Failure to run tests cannot translate into evidence that a Vitamin A deficiency was not linked to the death of the cows.

In 1990, this court reversed a summary judgment which had been entered in favor of the sellers of hog feed. Baggett v. Bradley County Farmers Cooperative, 302 Ark. 401, 789 S.W.2d 733 (1990). The buyers who operated a hog feeding business contended that the negligent mix of hog feed with cattle feed caused their hogs to become ill and die. Both sides moved for summary judgment. The sellers submitted the affidavit of a nutritionist stating that the feed did not cause the disease. The buyers attached part of the deposition of a veterinarian who testified that the mixed feed could change the hogs intestines and cause an eruption of illness but that he could not be certain of the precise cause of illness without knowing what else the hogs had eaten. We reversed the summary judgment in favor of the sellers and held that even though the veterinarian did not know what exactly caused the illness, this was a fact question for the jury to decide.

Similarly, in this case cause of death was for the jury to determine, and the jury did so based on substantial evidence. What the jury had before it was the testimony of the owners of the cows who presented their first-hand observations of the cows’ illnesses and, in some instances, their deaths. These empirical observations on a day-to-day basis were coupled with the testimony of Dr. Krumme that it was “highly probable” that the bad feed caused the problems. Krumme did not examine the dead cows post mortem and could not state with medical certainty precisely what caused their death, which is reminiscent of the veterinarian in the Baggett case, but he could testify that the deficient feed made them very sick. And, again, the majority concludes that there was enough evidence to support the jury verdict that the Purina feed caused the serious illnesses. We should not require an expert witness to tell the jury that serious illness which goes untreated and unchecked may well lead to death.

I would view the proof favorably to the Askinses, as we are required to do, consider the inferences arising from that proof, and affirm the verdict.