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Derrick v. Standard Nutrition Co.

United States District Court, D. New Mexico

May 8, 2019

RONNY DERRICK and ANGIE DERRICK, a married couple, Plaintiffs,
v.
STANDARD NUTRITION COMPANY, a Nebraska Corporation, dba A-C Nutrition, LP, a Texas limited partnership; JOHN DOES 1-5; and XYZ Corporate or Business Entities 1-5, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE

         Ronny and Angie Derrick (Plaintiffs), owners of a horse breeding program, bring suit against Standard Nutrition Company (Defendant), a manufacturer of animal feed. Plaintiffs contend that Defendant manufactured and sold them feed contaminated with a substance that caused injury and death to many of their horses. Both Plaintiffs and Defendant have moved for summary judgment on a variety of claims. (See Docs. 58; 73.) Defendant has also moved to exclude the testimony of Dr. Ronald Box. (Doc. 106.) Jurisdiction arises under 28 U.S.C. § 1332. Having considered the submissions of counsel and relevant law, the Court will GRANT IN PART Defendant's motion for summary judgment (Doc. 58), DENY Plaintiffs' motion for partial summary judgment (Doc. 73), and GRANT IN PART Defendant's motion to exclude (Doc. 106).

         I. Plaintiffs may only utilize Dr. Box as a fact witness.

         Before laying out the relevant factual background, the Court must discuss Defendant's motion to exclude Plaintiffs' witness, Dr. Ronald Box, D.V.M. (See Doc. 106.) As will be discussed in more detail in the next section, Dr. Box visited Plaintiffs' ranch after they discovered that two of their horses had died in December 2016. Dr. Box took samples from the deceased horses and from the horses' feed. Dr. Box sent those samples to a lab for testing. He later offered his opinion on the cause of the horses' death.

         Plaintiffs contend that “Dr. Box was timely disclosed as an expert”[1] (see Doc. 83 at 2 n.1) and attempt to rely on Dr. Box's statements to create a genuine dispute of fact regarding causation (see, e.g., Doc. 100 at 7). However, as United States Magistrate Judge Stephan Vidmar previously ruled, Plaintiffs failed to properly disclose Dr. Box (or any expert) under Federal Rule of Civil Procedure 26(a)(2)(D) by August 29, 2018-the scheduling deadline set by the Court. (See Doc. 66 at 3.) In fact, on October 19, 2018, during oral argument on a belated motion to extend that deadline, “Plaintiffs' counsel advised the Court that, not only was he unprepared to identify any experts on liability and causation, but . . . he was unsure whether he ever would have any such experts.” (Id. at 4 (emphasis added).) Despite their assertions to the contrary, it is clear to the Court that Plaintiffs failed to comply with the relevant rules regarding the disclosure of experts.

         Consequently, Plaintiffs may not call Dr. Box as an expert witness, but they may call him as a lay witness. When a witness or a treating physician-or in this case, a veterinarian-is not disclosed as an expert under Rule 26(a)(2), the witness can “still testify as a fact witness, but cannot testify as an expert.” Peshlakai v. Ruiz, No. CIV 13-0752 JB/ACT, 2013 WL 6503629, at *13 (D.N.M. Dec. 7, 2013) (quoting Musser v. Gentiva Health Servs., 356 F.3d 751, 757 (7th Cir. 2004) (brackets omitted)). Because the parties had not specifically briefed the issue of what portions of Dr. Box's testimony may be admitted as lay witness testimony, the Court ordered expedited briefing. (See Doc. 105.)

         Unsurprisingly, Defendant argues that all of Dr. Box's testimony should be excluded, while Plaintiffs argue that all of Dr. Box's testimony should be admitted. (Docs. 106; 110.) In its reply brief, Defendant also raises the issue of whether Dr. Box actually “treated” the horses at issue. (Doc. 111 at 4.) The Court declines to address this argument, as it was not raised in Defendant's motion. See Eichenberg v. Astrue, No. 12-cv-00795 MV/CG, 2013 WL 12329766, at *6 (D.N.M. July 19, 2013) (noting that “[i]t is clearly settled that a party cannot raise new issues in a reply brief”) (citations omitted). While Plaintiffs disregard the Court's instructions to “explicitly identify the portions of Dr. Box's testimony that should come in as a treating veterinarian/lay witness” (Doc. 109 at 1), they do mention three distinct areas of Dr. Box's testimony they believe should be admitted: (1) his involvement on the day he examined Plaintiffs' horses; (2) facts about monensin; (3) his diagnosis of monensin poisoning. (See Doc. 110.)

         The Court will admit testimony regarding Dr. Box's observations and actions on the day he examined the horses.

         After Plaintiffs discovered the first two dead horses in December 2016, they called Dr. Box, who came to their ranch the same day. (Id. at 2-3.) Dr. Box “was familiar with the region” and made “personal observations . . . to rule out such alternatives as rattlesnake bites and toxins that grow locally, such as Rayless Goldenrod.” (Id. at 3.) Dr. Box took tissue samples from the dead horses and feed samples from the feed bin. (See id.) The Court agrees that it is appropriate to admit Dr. Box's observations of the environment and the animals on the day he visited Plaintiffs' ranch in 2016, [2] as well as his testimony that he took samples from the animals and the feed. See Peshlakai, 2013 WL 6503629, at *17 (discussing Witherspoon v. Navajo Ref. Co., L.P., CIV 03- 1160 BB/LAM, 2005 WL 5988650, at *2 (D.N.M. June 28, 2005), where the court concluded “that physician who treated the plaintiffs in a toxic tort case, not disclosed under rule 26(a)(2), could testify only to ‘observations and treatment developed while actually treating Plaintiffs'”).

         Dr. Box may not testify about monensin.

         Plaintiffs next argue that “facts about monensin are not ‘specialized knowledge.'” (Doc. 110 at 5 (italics and capitalization omitted).) Plaintiffs generally discuss the results of the lab report analyzing Dr. Box's feed and tissue samples, and the fact that Defendant places warning labels on certain types of feed that contain monensin. (Id. at 5-6.) Plaintiffs conclude that it is common knowledge that horses should not ingest monensin, as “[i]t was known to Defendant[] and to every feed customer in the United States who ever purchased feed medicated with monensin and who glanced at the” warning label. (Id. at 6-7.) Plaintiffs' argument is without merit.

         Again, “[u]nder Tenth Circuit law, treating physicians not disclosed as experts are limited to testimony based on personal knowledge and may not testify beyond their treatment of a patient.” Witherspoon, 2005 WL 5988650, at *1 (citing Davoll v. Webb, 194 F.3d 1116, 1138-39 (10th Cir. 1999)) (subsequent citations omitted). “This means that Dr. [Box] may testify about [his] observations” from the day he actually saw the horses, but he “may not provide testimony beyond what [he] perceived or did.” See Id. at *2. In other words, Dr. Box may not testify about monensin-what it is, its effect on horses, whether feed for horses may contain monensin, et cetera. If he testifies at trial, Dr. Box may, without objection, read the results of the lab reports Plaintiffs received as a result of the samples he took in December 2016. Beyond reading those results, Dr. Box may not testify further about monensin or speculate about the meaning of the lab results.

         Dr. Box may not offer an opinion on causation/diagnosis.

         Plaintiffs contend that “the only part of Dr. Box's anticipated testimony that may appear to be an opinion of his based on the ‘specialized knowledge' of a veterinary expert would be his opinion that it was Defendant['s] monensin that killed and damaged the horses. But that is not specialized expert knowledge.” (Doc. 110 at 5.) Plaintiffs cite no authority for this proposition, and the Court firmly rejects it.

A witness not properly identified as an expert pursuant to rule 26 may . . . testify as a lay witness to opinions which are ‘(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.'

Peshlakai, 2013 WL 6503629, at *15 (quoting Fed.R.Evid. 701). Dr. Box may not, therefore, “testify to any opinions regarding causation under rule 701, because opinions regarding causation of a medical condition require ‘knowledge derived from previous professional experience[, which] falls squarely within the scope of Rule 702 and thus by definition outside of Rule 701.” Id. at *17 (quoting James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1215 (10th Cir. 2011) (internal quotations omitted) (alteration in original)).

         Plaintiffs acknowledge that “[a] treating physician's opinions regarding diagnosis of a medical condition are almost always expert testimony, because diagnosis requires judgment based on scientific, technical, or specialized knowledge in almost every case.'” (Doc. 110 at 11 (quoting Peshlakai, 2013 WL 6503629, at *17 (quoting James River, 658 F.3d at 1214 (emphasis omitted))).) They urge the Court to recognize that “[t]here are cases, however, where a diagnosis may be lay testimony, because it is within the province of the common person.” (Id. (quoting Peshlakai, 2013 WL 6503629, at *17 (citation omitted)).) As explained later in this Opinion, the Court does not agree that a diagnosis of monensin poisoning “is within the province of the common person.” See Peshlakai, 2013 WL 6503629, at *17 (citation omitted). Consequently, Dr. Box may not offer an opinion on causation or diagnosis. If this case proceeds to trial, this ruling will stand.

         II. Factual Background[3]

         Plaintiffs breed and raise horses. (See Doc. 1-1 (Compl.) ¶¶ 1, 4.) Plaintiffs keep their horses, as well as some cattle, on their ranch in Eddy County, New Mexico. (See Id. ¶ 6; Docs. 58-A at 2; 58-B at 3; 58-D at 171:18-22.) Defendant manufactures, sells, and distributes animal feed. (See Compl. ¶¶ 1, 9.) Mr. Derrick worked with Defendant's employee, Mr. Kevin Floyd, to design a custom feed for Plaintiffs' ranch, but the parties dispute whether the feed was specifically designed for horses or cows. (See Docs. 58-C at 2 (“Defendant[] knew [the feed] was primarily for [Plaintiffs'] equine stock.”); 58-D at 203:5-7 (“When [Mr. Derrick] designed that feed with . . . [Mr.] Floyd, it was designed for horses. [He] told him it was for horses.”); 102-D at 32:7-16 (Mr. Floyd testified that “[w]e were discussing cattle feed, strictly for the cattle when we did the formulation, and what he was feeding was for cattle”).) They named the formula Derrick Super Breeder Lightning 18-6 (“Derrick Super Breeder”). (See Doc. 102-F (Derrick Super Breeder feed label).) Plaintiffs fed Derrick Super Breeder to their horses and their cattle. (See, e.g., Doc. 58-A at 2 (“every time [Mr. Derrick] called” to order Derrick Super Breeder, “he reminded Defendant['s] personnel that the feed was for horses and cattle”).)

         The Feeding Directions on the Derrick Super Breeder label state: “Feed to beef cattle at a rate of 2 to 4 lbs per head per day. . . . Contact your AC Nutrition representative for feeding and management recommendations specific to your operation.” (Doc. 102-F.) The label specifies that the feed is “[f]or beef cattle on range pasture.” (Id.) The Guaranteed Analysis lists percentages of crude protein, crude fat, crude fiber, as well as a variety of vitamins and minerals (i.e., calcium, phosphorus, salt, magnesium, etc.). (See id.) The label also includes an ingredients list and two “caution” warnings: (1) “This product contains added copper. Do Not Use in feeds for Sheep”; and (2) “Follow Label Directions. The addition of higher levels of selenium to feeds containing this product is not permitted.” (See id.)

         Plaintiffs purchased four loads of Derrick Super Breeder from Defendant. (See Doc. 58-A at 2.) Mr. Derrick always called to order the feed. (See Id. (Mr. Derrick “remember[s] that each phone call was from him”); Doc. 58-B at 3 (stating that Mr. Derrick “communicated with [Defendant]”).) The fourth order of 24, 000 pounds of Derrick Super Breeder, which Defendant delivered to Plaintiffs' ranch on December 6, 2016, is at issue in this lawsuit. (See Doc. 73-2.) Mr. George Madrazo, Defendant's Operations Manager and Federal Rule of Civil Procedure 30(b)(6) designee, acknowledged that approximately 3, 500 pounds of a different feed was inadvertently added to Plaintiffs' order.[4] (See Docs. 80 at 1; 73-8 at 4:11-13, 25:2-16 (“Q. Where did the 3, 506 pounds come from? A. From the product that was stuck in the west bin.”).) Mr. Kevin Floyd, Defendant's Co-Operations Manager, “was aware that [Plaintiffs' order] was overweight[, ]” but he did not inform Mr. Derrick of the difference.” (See Doc. 102-4 at 80:3-82:2.)

         Approximately three to four days after the December 2016 feed delivery, Mr. Derrick went out in the morning to feed the horses and cattle. (Doc. 58-D at 153:15-19.) Near where the horses feed, Mr. Derrick found two of his horses dead. (Id. at 162:23-163:8.) He walked around the two horses to see if there were signs of injury, but “they just looked like they” had “take[n] a nap.” (Id. at 164:2-6.) He located several other horses and noticed that they looked “lethargic” and “sick.” (Id. at 164:18-23.) The horses were moving “at a slow walk[, ]” they were “sweating all over [despite it being a cold day], carried their heads real low, [and] wouldn't . . . get out of a walk.” (Id. at 163:19-21, 164:21-23.) Mr. Derrick immediately called veterinarian Dr. Ronald Box. (Id. at 164:23-25.)

         Dr. Box came to the ranch and looked at the horses and their environment. (See Id. at 169:1- 5; Doc. 101-3 at 33:25-34:8.) He took a feed sample from Plaintiffs' overhead feed bin and sent it to the Texas A&M Veterinary Medical Diagnostic Laboratory (TVMDL) for testing. (See Docs. 58-D at 169:15-170:10; 101-3 at 35:3-7.) The samples showed that at least part of the feed contained 1.2 parts per million (ppm) of monensin, or 1.2 mg/kg of feed material.[5] (See Doc. 58-E; see also Doc. 101-4 at 38:5-39:5 (Dr. Hall's testimony that some of the feed tested was negative for monensin, and one sample was positive).) Monensin (also referred to by its brand name, Rumensin) is a type of antibiotic sometimes added to cattle feed. (See Doc. 58-E.) See also Daniel Lowicki & Adam Huczynski, Structure & Antimicrobial Properties of Monensin A & Its Derivatives: Summary of Achievements, Biomed Research Int'l (Feb. 2013), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3586448/; Rumensin (Monensin Feedyard and Pasture), https://www.elanco.us/products-services/beef/rumensin. “The lethal oral dose for monensin in horses is 2 to 3 mg/kg body weight.” (See Doc. 58-E.) The veterinary toxicologist who signed the TVMDL lab report stated that “[a]t a concentration of 1.2 mg/kg in the feed, a 1000 lb horse (454 kg) would have to consume more than its body weight in feed to get a lethal dose of monensin.” (See id.) Defendant's expert, Dr. O. Hall, D.V.M., Ph.D., opined that the dose of monensin Plaintiffs' “horses would have received, even if [their] total diet contained 1.2 ppm monensin[, ] . . . is way too low to cause any adverse effect in horses, as indicated [by his opinion and] by the TVMDL diagnostic report.”[6] (Doc. 58-F at 6; see also Doc. 58-E.)

         Dr. Box examined the two dead horses and saw nothing consistent with an external injury. (Doc. 101-3 at 34:9-12.) Dr. Box also took tissue and stomach contents samples from the two dead horses. (See Docs. 58-F at 3; 73-5 at 2.) The tissue samples had broken down too far to yield conclusive results. (See Docs. 58-F at 6 (“The only two horses necropsied[7] were too autolytic for tissue evaluation.”); 73-5 at 2 (Dr. Box noted that he “sent in heart [and] liver from both horses - They were unable to do histopath because of the severe autolysis.”).) The stomach contents sample did not indicate the presence of monensin. (See Doc. 58-F at 3.) He also noticed that the surviving horses “didn't look perfectly right. They looked a little sluggish, their heads were down, but they weren't dying.” (Doc. 101-3 at 65:7-9.)

         Dr. Box did not take any samples from the horses that were still alive and showing signs of lethargy and illness. (See Doc. 58-D at 169:1-7.) Mr. Derrick spoke to several other veterinarians after the first two horses died, including the state veterinarian, Dr. Orton. (Id. at 181:16-17.) Dr. Orton advised Mr. Derrick to bring some of the affected horses in to “let him listen to their heart and . . . he could probably tell which ones were . . . affected . . . .” (Id. at 182:9- 13.) Plaintiffs could then obtain ultrasounds on any or all of the affected horses. (Id. at 182:12- 15.) For a variety of reasons, including distance, cost, and potential harm to young, unbroken horses, Plaintiffs have not taken their horses to Dr. Orton, nor have they obtained ultrasounds or other testing on any of their living horses. (See Id. at 179:6-181:9, 182:14-184:21.) An additional four more horses have died since December 2016 (see Id. at 180:6-18), but Plaintiffs have not submitted any further test results from the deceased horses.

         III. Summary Judgment ...


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