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Hancock v. Shook3/18/2003
Opinion Vote: AFFIRMED.
White, Woff, Benton, Stith, and Teitelman, JJ., concur. Limbaugh, C. J., disents in separate opinion filed.
Opinion:
I.
Glen Hancock appeals a verdict in his favor of $12,500 against William and Ruth Shook, doing business as Barnes Feed Store. Mr. Hancock's dairy herd ingested feed purchased from the Shooks that was contaminated with a toxic mold. Mr. Hancock sought $600,000 in damages resulting from losses to his herd and decreased milk production. The judgment is affirmed.
II.
A. Background Facts
Glen Hancock is a dairy farmer and was a regular customer of Bill and Ruth Shook, owners of Barnes Feed Store. In March 1992, Mr. Hancock purchased feed from the Shooks and fed it to his milking herd. Mr. Shook admitted that this feed was contaminated with aflatoxin. Four days of milk production totaling nearly 36,000 pounds was dumped because of unhealthy levels of aflatoxin in the milk. Mr. Hancock explained that not every cow reacted the same way to the contaminated feed, but that much of his herd reacted poorly. There were three aborted (miscarried) calves immediately after feeding the contaminated feed and Mr. Hancock culled 126 cows because of aflatoxin-related problems. Finally, Mr. Hancock claimed that overall milk production decreased for a number of years because of the large amount of culls and continuing health problems relating to the ingestion of aflatoxin.
B. Procedural History Pre-Trial
Prior to trial, the court made a number of rulings, including a decision that Mr. Hancock could not testify that he knew the problems in his herd were caused by aflatoxin-contaminated feed, even though he had traveled to look at another herd with a known aflatoxin problem.
The Trial
Mr. Shook was called by Mr. Hancock and testified that he knew of other incidents of aflatoxin-contaminated feed at local mills. In fact, the Shooks had purchased an aflatoxin test kit in February 1992 at least partly due to knowledge of other incidents of aflatoxin in the area. However, the Shooks had not tested any feed when the contaminated feed was sold to Mr. Hancock. Mr. Shook testified that he was aware that some local mills were testing for aflatoxin in March 1992, but he said, "many were not."
There was some dispute during the testimony of Dr. Mozier, Mr. Hancock's veterinarian, as to whether he could show that the three abortions occurred after the aflatoxin-contaminated feed was fed to the Hancock herd. Dr. Mozier produced a series of "tickets" from visits to Mr. Hancock's farm in March 1992. The three abortions were represented on ticket number 14158, which was partially dated "03/__/92." Ticket number 14134 was dated " ;03/13/92." When asked what this would suggest, Dr. Mozier testified that he assumed the three abortions occurred after March 13, 1992, because the ticket number for the incomplete date was higher than the March 13 ticket. However, when cross-examined, Dr. Mozier testified that the ticket numbers would not necessarily be in sequence and, therefore, he could not be certain that the abortions occurred after the aflatoxin incident.
The trial court allowed juror questions as a regular aspect of the trial procedure. The court and the attorneys reviewed the submitted jury questions at sidebar and discussed the appropriateness of each question. The attorneys were allowed to object if they felt a question should not be asked. The court sometimes refused to ask a question and sometimes altered the question from that submitted in order to make the question more understandable.
Following Dr. Mozier's testim
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