Kircher v. Purina Mills, Inc.

BLACKMAR, Chief Justice,

concurring.

I find serious problems of causation as to the great bulk of the damages claimed by the plaintiff. We held in Green v. Ralston Purina Company, 376 S.W.2d 119 (Mo.1964), that a plaintiff does not sufficiently establish the element of causation in a feed case simply by showing that the animals consumed the defendant’s feed and sickened or died shortly after ingesting the feed. See also Stewart v. Martin, 353 Mo. 1, 181 S.W.2d 657 (1944). I do not understand the principal opinion to depart from this long-established holding.

The plaintiff’s veterinarian, Dr. Wright, observed the cows about two weeks after the feeding of the questioned feed had begun. He noted that they appeared gaunt and showed ketosis. The doctor expressed his ultimate conclusion as follows:

Q. Have you, as P. Dee’s veterinarian, searched for other possible causes for some of those conditions that you saw?
A. Yes. I looked, and have done a lot of research, and phone calls, and read a lot of articles, for something to come up with, but none of these answer this.
Q. In your own mind, have you ruled out anything causing these problems besides that feed?
A. Yes, I have.
Q. And you’ve ruled out everything else?
A. Yes.
Q. In your opinion, it was the feed?
A. Yes, my opinion is it definitely was the feed. I don’t know if I answered you about two questions back when I said I’d made a bunch of phone calls and so on. That was referring to what aspect of the feed could have caused it, not to any other problem that caused it, other than the feed.

The doctor also testified on direct examination:

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I really don’t know what was wrong with [the feed]. It was abnormal, and I don’t know what was wrong with it. ******
Of what was wrong with the feed. I have no question it was the feed, its just that I don’t know, nor does anyone else, because we don’t have a detailed feed analysis.

The doctor’s testimony must be taken as a whole. Blackburn v. Katz Drug Co., 520 S.W.2d 668 (Mo.App.1975); Downey v. Spot Martin, Inc., 328 S.W.2d 399 (Mo.App.1959). Sometimes a witness’s testimo*119ny may be internally inconsistent and self-destructive, so that it loses its quality as substantial evidence. This is so as to expert testimony. The doctor says in effect that he is sure that the feed caused the damage, but cannot say why this is so. Up to this point the evidence hardly sustains the plaintiff’s burden.

Most of the cases cited in the principal opinion for the proposition that the plaintiff need not exclude all other possible causes are not feed or animal medication cases. Courts have recognized that animals, like all of us, are mortal and that they sicken and die from a variety of causes. When food is involved there should be some burden to exclude other nutritional or environmental conditions which could have caused the same damage. Suppose that a herd had been fed feed from two different manufacturers at the same time. I doubt that testimony similar to Dr. Wright’s would have been sufficient to support a finding against one of these manufacturers, unless some basis were shown for differentiating the challenged feed from the other feed. Cf. Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo. banc 1984). Thus I am concerned about the veterinarian’s failure to exclude as a causative factor the removal of the cows from pasture and their being placed on ensilage, shortly before their illness manifested itself. His testimony that he did some reading and couldn’t find anything else is hardly substantial.

This defendant, however, put all its eggs in one basket, or perhaps more accurately, all its milk in a single can. Its sole point urged for reversal is as follows:

I. The Circuit Court Erred By Overruling Appellant’s Motions For Directed Verdict At The Close Of Respondent’s Case And At The Close Of All Of The Evidence And By Overruling Appellant’s Motion For Verdict In Accordance With Motion For Directed Verdict And By Entering Judgment In Favor Of Respondent Because Respondent Failed To Establish Causation By Substantial Evidence In That Respondent’s Evidence Failed To Show By A Reasonable Veterinary Certainty Or Reasonable Probability That The Partial Consumption Of The Feed Caused Respondent’s Alleged Damages To His Cows And That He Had Excluded All Other Possible Causes Of Respondent’s Alleged Damages.

With this broadside against the entire verdict, plaintiff is entitled to affirmance if he can show that the feed was defective and that the defects caused any damage whatsoever to the cows. Here there is evidence from the plaintiff and from the veterinarian that the food looked and smelled different from the feed usually supplied by this manufacturer. The jury could then apply the veterinarian’s testimony so as to find that the feed was defective and that the defects caused some damage to the dairy herd. The veterinarian’s testimony of what he observed on his first visit is much more substantial than his speculations about damages running many months into the future. The evidence shows a decline in milk production beginning in November of 1985 and continuing on a downward course for several months. This evidence of some damage is minimally sufficient to survive a motion for directed verdict or judgment n.o.v.

The defendant objected to some of the evidence concerning damages, on grounds of want of foundation and speculative character. I believe that the veterinarian engaged in much unsubstantiated speculation. But the amount of the verdict is not challenged, and no trial error is assigned as ground for reversal. Objections based on Missouri Farmers Association v. Kempker, 726 S.W.2d 723 (Mo. banc 1987), might well have been properly taken to much of the damage testimony, and preserved on appeal. As the principal opinion points out, Kempker did not involve the submissibility of the plaintiff’s case but rather the exclusion of evidence of more remote damage claimed by the plaintiff. We were not obliged to reverse unless persuaded that the exclusion of the evidence was erroneous, and were not limited to grounds presented in objections in the trial court.

This case should not be an invitation to the raisers of livestock whenever a herd sustains illness or loss or whenever the *120feed merchant tries to collect the bill to sue the feed manufacturer, and to commandeer the services of a veterinarian disposed to please his client, so to indict the feed without proving that it was defective. Here, however, there is a showing of a defect in the feed and expert testimony that this defect could cause some damage. I agree, therefore, that the judgment must be affirmed.