Finding that a trial court erred in admitting evidence and instructing the jury in a lawsuit involving claims that milk permeate sickened or killed calves that were fed the product as a source of dietary energy, protein and minerals, the Ninth Circuit Court of Appeals has returned a breach-of-warranties lawsuit to the lower court for a new trial. Millenkamp v. Davisco Foods Int’l, Inc., Nos. 07-35299 & -35318 (9th Cir.,
decided April 14, 2009).

The defendant allegedly advised the owners of a cattle operation about the use of milk permeate as a food source for their calves and then sold the product to them. When their calves fell ill and some died, the plaintiffs learned that they had stored the product at an improper temperature, “which allowed lactose to ferment into a harmful lactic acid that caused the calves to fall prey to rumen acidosis.”

The plaintiffs sued for breach of express and implied warranties, negligence and negligence per se and proceeded to trial on the warranty claims only. The jury awarded damages to the plaintiffs, and the defendant sought a new trial, objecting to several evidentiary rulings and jury instructions. The appeals court rejected any of defendant’s jury-instruction challenges that would have provided a defense to negligence claims, because those claims were not before the jury. The court did, however, find that the trial court erred when it instructed the jury that the defendant’s failure to comply with Idaho’s Milk Permeate Labeling Requirement was a basis for finding breach of express and implied warranties. According to the court, Idaho law recognizes that a state statute may create the basis for tort liability but not for breach of warranty.

The appeals court also determined, among other matters, that the trial court erred in admitting the testimony of plaintiffs’ expert, who testified concerning the same issue, i.e., that “the American Feed Control Officials’ model feed law required sellers to label milk permeate.” Because this was not relevant to determine liability for breach of warranties and was prejudicial to the defendant, the court found that the trial court abused its discretion in admitting it. Still, the appeals court agreed with the trial court’s decision to allow the expert to testify as to the cause of the calves’ illness, finding it relevant and sufficiently reliable under the Federal Rules of Evidence.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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