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Janis Spencer Murray and v. Bob Burt

December 13, 2010

JANIS SPENCER MURRAY AND MAC MURRAY, PLAINTIFFS/COUNTER-DEFENDANTS,
v.
BOB BURT, DARIAN BURT, DEFENDANTS/COUNTER-CLAIMANTS. AND SELECT BREEDERS SOUTHWEST, AND SMART RANCHES, DEFENDANTS.



MEMORANDUM OPINION AND ORDER GRANTING IN PART PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE TESTIMONY OF DR. DAVID FLY AND OTHER EVA EVIDENCE

THIS MATTER comes before the Court upon Plaintiffs' Motion in Limine to Exclude Testimony of Dr. David Fly and Other EVA Evidence, filed November 12, 2010 (Doc. 153). Having considered the parties' briefs and the applicable law, I find that Plaintiff's motion is well-taken part and will be granted in part, but otherwise denied. The Burt Defendants have filed a response in opposition ("Defendants" for purposes of this motion).

Background

Plaintiff Janis Spencer Murray is a licensed New Mexico veterinarian and 10% owner of a nationally-acclaimed quarter horse stallion name Dash Ta Fame, and with her husband Mac Murray owns and operates MJ Farms in Veguita, Socorro County, New Mexico. This case involves claims over the interests, rights, and responsibilities of the parties in connection with Dash Ta Fame, particularly where it concerns ownership of the stallions stored semen as well as proceeds from sale of the semen. There are currently over 2,020 doses of the stallion's semen being held at different locations, namely Select Breeders Southwest ("SBS"), Smart Ranches, and MJ Farms.*fn1 There is a dispute as to whether Plaintiffs own a 10% in kind interest in the frozen semen at each location.

EVA (sometimes referred to as "equine arteritis virus" or "equine viral arteritis), is a contagious viral equine disease which causes horse breeders some concern because it causes mares to experience a higher than normal rate of abortion. EVA is spread from horse to horse through respiratory secretions and by breeding. Stallions can spread the disease through their semen, although a stallion that ceases to "shed" EVA in his semen is no longer capable of transmitting the virus in that manner. EVA-positive semen can still be used to breed mares as long as appropriate measures are followed.*fn2

Some of Dash Ta Fame's semen was found to be EVA-positive. This EVA-positive semen is stored at MJ Farms, and constitutes 233 doses or about 11.5% of all of the stallion's frozen semen. Plaintiffs believe that the salient facts regarding the EVA outbreak at MJ Farms are undisputed. The outbreak occurred in 2006, during which Dash Ta Fame could not leave MJ Farms due to a quarantine imposed by Dr. David Fly, D.V.M., the State Veterinarian. The quarantine lasted from June 2006 until September 2007. Not wanting to forego the collection of semen from the stallion during his confinement at MJ Farms, Plaintiffs froze and stored Dash Ta Fame's semen from November 2006 until April 2007, and Plaintiffs concede that the semen collected during this period is EVA-positive. Some time in April 2007, Dash Ta Fame ceased carrying the EVA virus in his semen and was no longer capable of either spreading EVA to mares through insemination or contracting it again himself.

Parties dispute whether the EVA-positive frozen semen should be used or destroyed. Plaintiffs maintain that EVA-positive frozen semen can be used if appropriate precautions are taken and that it is just as valuable as EVA-negative frozen semen. They claim that they have bred 246 mares with EVA-positive semen in ...


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