Opinion
4:99CV3294.
June 8, 2001
MEMORANDUM AND ORDER ON DEFENDANT'S MOTIONS TO EXCLUDE OR TO LIMIT THE TESTIMONY OF PLAINTIFF'S EXPERT WITNESSES
The plaintiff Jisa Farms, Inc. (hereinafter Jisa Farms) brings the present action claiming that the defendant Farmland Industries, Inc. (hereinafter Farmland) acted negligently in advising the plaintiff on nutritional issues and in formulating/preparing the plaintiff's feed rations during a period from August/September of 1996 to September of 1997. The case is scheduled for trial on September 17, 2001. See filing 110. The defendant Farmland has filed several motions seeking either to exclude or to limit the testimony of the following individuals: (1) the plaintiff's banker, Brad Wagner (filing 94); (2) the plaintiff's nutritionist, Cecelia Dorn (filing 96); (3) the plaintiff's veterinarian, Dr. Randall Schawang (filing 98); (4) the plaintiff's veterinarian, Dr. Randall Pedersen (filing 100); (5) the plaintiff's nutritionist, Doug Weich (filing 102); and (6) the plaintiff's consulting veterinarian, Dr. Wallace Wass (filing 104). The defendant has also submitted separate evidentiary indices and separate briefs with respect to each individual motion. See filings 95, 97, 99, 101, 103, 105. In response, the plaintiff has filed a single brief and evidentiary index. See filing 106. After carefully reviewing the submissions of both parties, I find that (1) the defendant's motion will be granted with respect to Brad Wagner; (2) the defendant's motions will be denied with respect to Ceclia Dorn, Dr. Randall Schawang, and Doug Weich; and (3) the defendant's motions will be granted in part and denied in part with respect to Dr. Randall Pedersen and Dr. Wallace Wass.
I. Standard for Admissibility of Expert Testimony
The admissibility of expert testimony is governed by Federal Rule of Evidence (hereinafter Rule) 702, which provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court explained that trial courts, when evaluating scientific testimony, must act as "gatekeepers" to ensure that such testimony is "not only relevant, but reliable." See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 589 (1993); see also id. at 592-93 (instructing district courts to conduct "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue"). The Court set forth the following four factors to guide trial courts in making this preliminary reliability assessment: (1) whether the expert's methodology has been tested; (2) whether the expert's theory or technique has been subjected to peer review and publication; (3) whether the technique has a known or potential rate of error; and (4) whether the technique has been generally accepted in the proper scientific community. See id. at 593-94. The Court emphasized, however, that the inquiry envisioned by Rule 702 remained a flexible one, and that the above factors should not be regarded as "a definitive checklist or test." Id. at 594, 593; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999)("We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony's reliability. But, as the Court stated in Daubert, the test of reliability is `flexible,' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case.").
Although Daubert advised district courts that the reliability inquiry should focus "solely on principles and methodology, not on the conclusions that they generate," the Court later recognized in General Electric Company v. Joiner that "conclusions and methodology are not entirely distinct from one another." Daubert, 509 U.S. at 595; General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Noting that "[t]rained experts commonly extrapolate from existing data," the Court determined that "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Id. Thus, "[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered," and exclude an expert's testimony. Id.
In a recent decision, the Supreme Court extended the Daubert analysis to all "non-scientific" expert testimony, noting that the language of Rule 702 "makes no relevant distinction between `scientific' knowledge and `technical' or `other specialized' knowledge." Kumho Tire Co., 526 U.S. at 147. According to the Court, the objective of Daubert's "gatekeeping" requirement "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 152. Thus, district courts are now obliged to ensure that all expert testimony "`is not only relevant, but reliable.'" Id. at 147 (quoting Daubert, 509 U.S. at 589).
Finally, the Eighth Circuit recognizes that "Rule 702 favors admissibility if the testimony will assist the trier of fact." Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir. 1998) (citing Justice v. Carter, 972 F.2d 951, 957 (8th Cir. 1992)). In addition, "doubts regarding `"whether an expert's testimony will be useful should generally be resolved in favor of admissibility.'" Id. (citing Larabee v. MM L Int'l Corp., 896 F.2d 1112, 1116 n. 6 (8th Cir. 1990) (quoting J. Weinstein M. Berger, Weinstein's Evidence ¶ 702[02], at 702-30 (1988))); see Sphere Drake Ins. PLC v. Trisko, 226 F.3d 951, 954-55 (8th Cir. 2000).
II. Discussion A. Brad Wagner
In filing 94, the defendant Farmland requests that I limit the testimony of the plaintiff's purported expert, Brad Wagner, and exclude his opinions regarding the following: (1) the difficulties experienced at Jisa Dairy; (2) the financial steps taken by Jisa Dairy to mitigate its alleged damages; and (3) the specific damages alleged by the plaintiff in its complaint. According to the defendant Farmland, such opinions are not supported by "sufficient facts or data" as required by Rule 702. The plaintiff, in its response, does not specifically address the challenges raised by the defendant. Instead, the plaintiff simply asserts that (1) Wagner, as the Jisa Farms' banker, is "undisputedly the most knowledgeable witness regarding the financial strengths and losses of Jisa Farms"; (2) Wagner's testimony is limited to his knowledge as the plaintiff's banker; and (3) this limited testimony "is essential evidence regarding financial steps taken by Jisa Farms to avoid losses and the level of financial losses from lost milk production." Plaintiff's Brief at 14. After reviewing the submissions of both parties, I will grant the defendant's motion.
1. Difficulties Experienced at Jisa Dairy
In his report, Wagner indicates that Jisa Farms had plans to expand, and that he and David Jisa discussed the financial possibility of expansion. Wagner also states that he "was aware that these plans were abandoned." Filing 95, Ex. A at 1. According to Wagner, Jisa informed him that "these plans were abandoned as a result of financial difficulties [Jisa] suffered as a result of a feed related incident, wherein he experienced some cow death, cow loss, lost milk production and the like." Id. at 1-2. The defendant Farmland challenges Wagner's ability to testify as to the reason why Jisa Farms did not pursue its plans to expand. The defendant also seeks to prevent Wagner from referring to the plaintiff's alleged experiences with "cow death, cow loss, [and] lost milk production." See id. According to the defendant, the challenged statements should be excluded for the following reasons: (1) Wagner admitted in his deposition that he had no knowledge as to the specific reasons why the plaintiff abandoned the expansion plan; (2) any "opinions" Wagner may have regarding the plaintiff's alleged losses and its reasons for abandoning the expansion plan are mere reiterations of factual allegations related to him by David Jisa, and, as such, are not "opinions" as envisioned by Rule 702; and (3) even if the challenged statements are regarded as "opinions," they should still be excluded because "Wagner's sole bases are unverified information received from Dave Jisa, an interested party." See Plaintiff's Brief at 8, 10. After reviewing the challenged statements, I find that they must be excluded. Such statements are hearsay, not falling within any exception. Thus, Wagner will not be permitted to testify as to what David Jisa related to him regarding Jisa's reasons for abandoning the expansion plans.
2. Financial Steps Taken by the Plaintiff to Mitigate Alleged Damages
In his report, Wagner states that "I am certain that Dave Jisa has taken all the appropriate financial steps to mitigate any financial damage he occurred [sic] as a result of the Farmland feed incident. . . ." Filing 95, Ex. A at 2. According to the defendant, however, Wagner admitted in his deposition that he knew of no actual steps taken by Jisa to mitigate his alleged damages. Thus, the defendant concludes, Wagner's "opinion" that Jisa took "all the appropriate steps" should be excluded. I agree.
The following passage from Wagner's deposition transcript reveals foundational problems with his opinion regarding Jisa Farms' efforts to mitigate damages:
Q. Okay. But in terms of what he did to mitigate his financial damages, other than switch feed companies, you're not aware of any steps that he's taken? And I'm not so sure you're saying in this sentence that you are. You're just saying that you know him and that you believe that he would take appropriate steps?
A. That would be correct.
Q. Okay. I just want to make sure my reading of it was the same, that you're not going to list out for us what he did to mitigate his damages. You're saying you know Dave Jisa and you think he would take those things?
A. That's correct.
Filing 95, Ex. B at 46:4-17 (emphasis supplied). Based on the above testimony, it appears to me that Wagner is simply speculating as to whether the plaintiff did, indeed, take appropriate steps to mitigate his damages. Such speculation does not satisfy Rule 702's requirement that expert testimony be based on "sufficient facts or data." Fed.R.Evid. 702; J.B. Hunt Transp., Inc. v. General Motors Corp., 243 F.3d 441, 444 (8th Cir. 2001) ("`Expert testimony that is speculative is not competent proof and contributes nothing to a legally sufficient evidentiary basis.'" (citation omitted)); Jaurequi v. Carter Mfg. Co., Inc., 173 F.3d 1076, 1084 (8th Cir. 1999) (affirming district court's exclusion of expert testimony where the expert "provided no basis for [the court] to believe that his opinions are anything more than unabashed speculation"); Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968, 972 (8th Cir. 1995) ("Reliability means the evidence must be based upon scientific knowledge, i.e., `ground[ed] in the methods and procedures of science,' and must represent `more than [a] subjective belief or [an] unsupported speculation.'" (citing Daubert, 509 U.S. at 590)); Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988) ("As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination. . . . However, if an expert opinion is so fundamentally unsupported that it can offer no assistance to the jury, then the testimony should not be admitted." (citations omitted)). The plaintiff has offered nothing to contradict the above testimony or to clarify the basis for Wagner's opinion. Thus, in the absence of a sufficient factual foundation, Wagner's "opinion" that David Jisa took "all the appropriate steps to mitigate any financial damages he occurred [sic] as a result of the Farmland feed incident," must be excluded.
3. Opinions Regarding Plaintiff's Specific Damages
The defendant also asserts that Wagner should be precluded from offering any opinions regarding the plaintiff's damages, including the damages alleged in the plaintiff's complaint. See filing 1 at 7-8 (alleging special damages in the amount of $1,338,804). In its Rule 26(a)(2) Expert Witness Disclosure, the plaintiff states that Wagner will testify about Jisa Farm's "economic damages," based in part on "the Plaintiff's records including bank records, tax returns, milk checks, death loss records, and information relied upon by agricultural economists. . . ." Filing 95, Ex. C at 7. The plaintiff, in its brief, also indicates that Wagner will testify as to "the level of financial losses from lost milk production." Plaintiff's Brief at 14. During his deposition, however, Wagner acknowledged that he (1) has no opinion, and no basis on which to form an opinion, as to the plaintiff's special damages, and (2) does not intend to testify at trial regarding such damages:
Q: And then I need to know your factual basis, any computations that you did, that type of thing. From your report, it doesn't appear to me that you're going to be expressing any opinions specifically with respect to damages and numbers.
A: Yes.
A. Okay. So I would be correct in assuming that you don't have any opinions
with respect specifically to numbers and damages and how those numbers and damages are arrived at; is that true?
A. With regard to specific numbers, no.
Q. Okay. So you-you're not going to take the witness stand and say they lost X amount of cows and the value of those cows are this much and this is how much their damage is? You're not prepared to do that and you haven't been asked to do that, I take it?
A. Correct.
Q. Okay. And you don't have any information, at least that I saw within your file, on which to base any of those opinions on, do you?
A. No.
Filing 95, Ex. B at 22:3-24. Thus, although the plaintiff asserts that Wagner will testify as to his opinions regarding Jisa Farms' "economic damages," Wagner, himself, has denied that he holds such opinions. Wagner will therefore be precluded from offering opinions relating to the special damages alleged in the plaintiff's complaint.
B. Cecelia Dorn
The defendant Farmland also seeks to limit the testimony of Cecelia Dorn. See filing 96. According to the defendant, Dorn's opinion regarding the use of bakery products and finely-ground corn in rations, as well as her opinion regarding the rations and ration advice provided by Farmland, should be excluded as baseless. After reviewing the arguments of both parties, I find that the defendant's motion will be denied.
1. Opinion Regarding the Use of Bakery Products and Finely-Ground Corn in Dairy Rations
In her report, Dorn indicates that the use of finely-ground corn and bakery products as feedstuffs may lead to herd health problems. She also states that she "personally do[es] not recommend feeding bakery products at any level due to their variability in nutrition content (moisture, sugar, fat, salt) and certainly not in conjunction with extremely finely ground corn." Filing 97, Ex. A at 1. According to the defendant, these opinions are baseless and should be excluded because they are contrary to dairy nutrition industry standards. In support of its claim, the defendant first refers me to the following deposition testimony:
Q. [Y]ou have expressed a personal opinion that feeding fine-ground corn and bakery products of inconsistent and variable quality can create health problems?
A. Yes
Q. And what you mean there is that it's okay to feed ground corn and bakery products as long as the ration is balanced properly?
A. I personally do not believe in feeding finely ground corn and bakery products. I've never fed bakery products. And I would not really want to feed bakery products. Some people feel its an acceptable practice.
Q. The opinion that you have is a personal opinion; is that right?
A. That's right.
Q. And it's also true that it's generally accepted within your industry, the nutrition industry, based on authoritative sources in your industry, that it is proper to feed finely ground corn and/or bakery products to dairy animals; is that right?
A. There are a number of people who think that it is okay, yes.
Q. That's the reason that finely ground corn is finely ground, is to increase the rate of fermentation, isn't it?
A. Yes.
Q. The reason for that is to increase energy level in the animals?
A. Increase the availability of the energy, yes.
Q. And the purpose of increasing the availability of the energy is for greater milk production, isn't it?
A. Yes, that's true.
Q. And that's all an accepted practice in the nutrition industry, isn't it?
A. Yes, it is.
Q. It's true, isn't it, that authoritative sources in the nutrition industry recognize that fine-ground corn is acceptable for rations for dairy animals?
A. It would be true depending on the other ration ingredients and the ration makeup.
Q. It's also true that authoritative sources in the nutrition industry recognize that bakery products are acceptable for rations for dairy animals?
A. There are a number of people that do feel bakery products are fine to use in rations.
Filing 97, Ex. B at 10:24-12:2, 19:20-20:9, 43:12-23 (objections omitted). The defendant characterizes the above testimony as an "admission" by Dorn that dairy nutrition industry standards, as well as authoritative sources within that industry, allow for the use of both finely-ground corn and bakery products. Thus, the defendant concludes, it is merely Dorn's personal opinion and practice to restrict the use of these products, and such an opinion is therefore improper expert testimony. I disagree.
Contrary to the defendant's assertions, I am not convinced that Dorn has "admitted" to anything regarding "general industry standards." In fact, in a portion of the deposition transcript omitted by the defendant, Dorn indicated that she didn't know how "generally accepted" it is to include finely-ground corn and/or bakery products in dairy rations. See id. at 12:3-7. This testimony, as well as other materials submitted by the parties in connection with the defendant's motions, suggest that there may be some disagreement within the dairy nutrition industry as to the proper use of these products. See filing 106, Ex. 2 at 156:2-157:25 (testimony of Dr. Randall Pedersen in Dodds v. Farmland Industries, Inc.) (explaining how rations consisting of finely-ground materials, such as corn and bakery products, may lead to rapid fermentation and, as a result, acidosis); filing 105, Ex. B at 109:6-110:13 (Deposition of Dr. Wallace Wass) (stating that although he "think[s] it should be okay" to include bakery products in dairy rations, other experts are hesitant to use such products "primarily for the reason that they say you don't know what's in there"). The defendant has not submitted any evidence suggesting otherwise. In addition, Dorn's statements regarding the potential effects of these products, when used in excess or in a ration that is not properly balanced, appear to be based on scientific principles recognized by the dairy nutrition community. See filing 106, Ex. 5 at 171 ("Amount and composition of the diet are external variables that affect rate of digestion, rate of passage and, therefore, turnover of the rumen contents" (emphasis supplied)); filing 106, Ex. 8 at 2 ("Another common cause of acidosis is having diets too low in effective fiber . . . or too small particle size."); id. at 1 ("One of the most common causes of acidosis occurs when switching from a high fiber to high concentrate diet that is rich in fermentable carbohydrates (starches and sugars)."); see also filing 106, Ex. 2 at 156:8-9 (testimony of Dr. Randall Pedersen in Dodds v. Farmland Industries, Inc.) (explaining that bakery products "are very fine also"). Thus, I see no indication that Dorn's opinions fall outside the industry standards into the realm of "mere speculation and preference [that] are not grounded in the scientific method." Defendant's Brief at 7 (filing 96). In short, I agree with the plaintiff that Dorn's opinion regarding the grind of corn and the use of bakery products is a point subject to cross-examination, and not a basis for limiting Dorn's testimony on these topics. The defendant's motion will therefore be denied, to the extent that it seeks to prevent Dorn from testifying as to her opinions regarding the use of finely-ground corn and/or bakery products in dairy feed rations.
The defendant's briefs will be referenced by the file number of the motion that the brief supports.
2. Opinion Regarding the Rations or Ration Advice Provided by Farmland
The defendant also challenges Dorn's ability to offer any opinion as to the rations or ration advice provided by Farmland. According to the defendant, Dorn's deposition testimony reveals that she "possesses no information and holds no opinions regarding those rations." Defendant's Brief at 11 (filing 96). Thus, the defendant concludes, her "opinions" as to these issues "should be excluded because they are not `based upon sufficient facts or data' as required by Rule 702." Id. at 13 (citations omitted). I disagree.
As an initial matter, I note that the defendant refers to several pages of Dorn's deposition transcript that are not included within the defendant's index of evidence. Compare Defendant's Brief at 13 (filing 96), with filing 97, Ex. B. Furthermore, although the properly-supported testimony demonstrates Dorn's lack of personal knowledge, at the time of her deposition, as to the content of the Farmland rations, this fact does not necessarily bar Dorn from offering her opinion as to the quality or appropriateness of Farmland's rations and ration advice. See Fed.R.Evid. 703 ("The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. . . ." (emphasis supplied)); see also Kemp v. Balboa, 23 F.3d 211, 213 (8th Cir. 1994) (recognizing the distinction between a lay witness, "who may testify only about matters within his or her personal knowledge," and an expert witness, "who may give his or her opinion about a matter within the witness' expertise"). Dorn could testify as to the appropriateness of the rations based on her review of the ration sheets or any other reliable evidence presented at trial regarding the content of the rations. See Fed.R.Evid. 703. Hypothetical inquiry would also appear to permit Dorn to offer her opinion as to this issue, based on her prior education, training, and experience as a dairy nutritionist, as well as her observations regarding the plaintiff's herd health after she resumed her position as the plaintiff's nutritionist. See, e.g., Fed.R.Evid. 702 advisory committee's note ("The language `facts or data' is broad enough to allow an expert to rely on hypothetical facts that are supported by the evidence." (citing Fed.R.Evid. 703 original advisory committee note)). Thus, the defendant's motion will be denied, to the extent that it seeks to preclude Dorn from testifying as to her opinions regarding the rations or ration advice provided by Farmland.
C. Dr. Randall Schawang
The defendant also challenges the expert opinions offered by Dr. Randall Schawang, one of the plaintiff's veterinarians. In his report, Dr. Schawang states the following: "It is my opinion to a reasonable degree of veterinary certainty, that the difficulties experienced on the Jisa Farm, which caused production loss, death loss, calf loss and other financial damage, were a direct and proximate result of the Farmland rations and feedstuffs." Filing 99, Ex. A at 2. According to the defendant, "[t]he given bases for this opinion are so unsound and inadequate that the opinion should be rendered scientifically unreliable and excluded." Defendant's Brief at 5 (filing 98). In support of its claim, the defendant refers me to the transcript of Dr. Schawang's deposition, in which he indicated that he based the above-quoted opinion on the following: (1) the alleged occurrence of laminitis in the Jisa Farms' herd; (2) David Jisa's assertion that the Farmland rations consisted of up to 70% concentrate; and (3) mineral testing performed on the herd in 1998. See filing 99, Ex. B at 114:21-115:18, 115:23-116:8. After reviewing each of these three bases, the defendant concludes that Dr. Schawang's opinion is unreliable and must therefore be excluded. I disagree.
First, with respect to the appearance of laminitis in the plaintiff's herd, the defendant refers me to the following deposition testimony:
Q. What is the normal level of laminitis in a dairy herd producing at the level that the Jisa herd produces?
A. You had to put that qualifier in there, producing at that level. Otherwise, it would have been easy to answer. I don't know. They're the only herd I have worked for at that level.Id. at 88:12-19. The defendant characterizes the above testimony as an "admission" by Dr. Schawang that he was not familiar with the level of laminitis normally occurring in herds such as the plaintiff's. Thus, the defendant argues, if Dr. Schawang does not know the typical level of laminitis found in comparable herds, he has no basis for opining that the level he allegedly observed in the plaintiff's herd was in any way abnormal. This leads the defendant to conclude that Dr. Schawang's alleged observance of laminitis is an inadequate basis for supporting his opinion regarding the cause of the plaintiff's herd health difficulties. In addition, the defendant attacks Dr. Schawang's ability to testify as to the cause of the laminitis, noting that in the following deposition testimony, Dr. Schawang admitted that he could only infer the cause:
Q. Did you determine the cause for the laminitis that you were-reflected in your records September 5, `97, and after?
A. Did I determine the cause?
Q. Yes.
A. No. I can infer the cause.
Q. And your inference would be acidosis, I assume?
A. Yes.
Id. at 91:15-20. Thus, the defendant concludes, since "[Dr.] Schawang admits he never determined the cause of the alleged laminitis but, rather, simply inferred that acidosis was the source, his resulting opinion that the alleged laminitis was caused by Farmland feeds is unreliable and should be excluded." Defendant's Brief at 8 (filing 98). I disagree.
Despite the defendant's suggestion to the contrary, an expert witness is permitted to make inferences, so long as such inferences are based on sufficient "facts or data." See Fed.R. Evid 703. It appears to me that Dr. Schawang, in inferring the cause of the laminitis he allegedly observed in the plaintiff's herd, satisfied this requirement. During his deposition, Dr. Schawang explained that he reached his conclusion that acidosis was the cause by excluding other potential causes. See filing 106, Ex. 4 at 89:21-92:2. This method of reaching a diagnoses is generally accepted within the medical community. See, e.g., Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir. 2000) (recognizing "that a causation opinion based upon a proper differential diagnosis (one that systematically rules out other possible causes) satisfies Daubert . . . "); Hose, 70 F.3d at 973 ("Indeed, ruling out alternative explanations for injuries is a valid medical method." (citation omitted)). Thus, I see no reason to exclude Dr. Schawang's opinion simply because he "inferred" the cause of the laminitis in the plaintiff's herd rather than "determining" it. See Defendant's Brief at 7-8 (filing 98). Nor am I convinced that Dr. Schawang's opinion should be excluded based on his "admission" that he is not familiar with the level of laminitis normally occurring in herds such as the plaintiff's. During his deposition, Dr. Schawang testified that based on his records, there was an increased incidence of laminitis in the Jisa Farms' herd during the time period from August to October 1997. See filing 106, Ex. 4 at 89:4-10, 100:25-101:3. The record indicates that Jisa Farms discontinued the Farmland feed rations in approximately September of 1997. See filing 82 at 2 (Memorandum and Order on Motion for Summary Judgment by Defendant Farmland Industries, Inc.). Thus, while Dr. Schawang may not be able to opine as to whether the level of laminitis in the Jisa Farms' herd was abnormal at any time after the herd began the Farmland rations, he can certainly testify as to the increased incidence of laminitis that seemed to correspond with the plaintiff's use of Farmland feeds. I therefore find that Dr. Schawang's testimony regarding the alleged appearance of laminitis in the Jisa Farms herd is not so "unsound and inadequate that the [causation] opinion should be rendered scientifically unreliable and excluded." See Defendant's Brief at 5 (filing 98).
The defendant also challenges Dr. Schawang's reliance on (1) blood tests that allegedly revealed a mineral imbalance in the Jisa Farms herd, and (2) statements by David Jisa that the Farmland rations contained up to 70% concentrate. According to the defendant, Dr. Schawang admitted during his deposition that (1) he did not know whether the Farmland rations themselves contained a mineral imbalance because he had not seen the rations on paper; (2) although there is a mineral imbalance in a single cow, this does not necessarily mean that the ration is improper; and (3) he could not determine whether the trace mineral problems detected in 1998 were the result of the Farmland feed rations. See filing 99, Ex. B at 74:20-76:3, 106:4-107:13. In addition, the defendant also refers me to the affidavit of Dr. Robert M. Cook, who indicates that he reviewed the dairy nutrition rations prepared by Farmland for Jisa Farms and found that the highest concentrate level in any of the rations was 58%. See filing 99, Ex. C ¶¶ 3-4. Based on the evidence outlined above, I agree that there may be some foundational problems with Dr. Schawang's reliance on (1) the blood tests, and (2) David Jisa's statements regarding concentrate levels. If these were the sole bases for Dr. Schawang's opinion, I may be inclined to exclude his testimony as to causation. However, in both his report, and during his deposition, Dr. Schawang refers to other objective medical factors leading him to conclude that there were problems with the Farmland rations. See filing 99, Ex. A at 1 ("The Jisa herd was experiencing increasing death loss-for a period of time as many as two cows per week, as well as increasing rates of displaced abomasums, laminitis, loose stools, poor body condition, decreased milk production, and, in general, declining herd health."); id. at 2 ("The animals became restless and lethargic and began an array of difficult health symptoms including, as noted above, decreased milk production, rumen acidosis, laminitis and other feed difficulties, reproductive difficulties, and death."); filing 99, Ex. B at 119:13-18 ("Q: And you feel there was a problem with the rations because of the discussion with Mr. Jisa about 70 percent concentrate; is that right? A: Plus the fact that he had some significant problems, very significant problems with the cows during the period of time `97 and `98."). Thus, while the defendant may challenge Dr. Schawang during cross-examination regarding his reliance on the blood tests and David Jisa's statements, the foundational issues raised by the defendant do not require me to exclude the doctor's causation opinion altogether. See Hose, 70 F.3d at 973-74 ("`As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination'. . . . Only if an expert's opinion is `so fundamentally unsupported that it can offer no assistance to the jury' must such testimony be excluded." (citing Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988); Fed.R.Evid. 703)); see also Daubert, 509 U.S. at 596 (recognizing that "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence" (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987))). For the same reason, I find that the defendant's remaining challenges as to the sufficiency of the factual basis for Dr. Schawang's opinion must also fail. See Defendant's Brief at 14 (filing 98) (noting that "Schawang admits he does not know whether the Farmland rations were inappropriate, and that the alleged problems experienced by [the] plaintiff's herd could have been caused by non-Farmland rations"); id. at 15 (arguing that "Schawang's reliance on the findings of an outside dairy specialist as a basis for his opinion is misplaced as the findings of that dairy specialist contradict Schawang's opinion").
Finally, the defendant argues that Dr. Schawang's causation opinion must be excluded because, by his own admission, Dr. Schawang failed to rule out other possible causes for the alleged herd health problems. In support of its claim, the defendant refers me to the following excerpt from Dr. Schawang's deposition:
Q. And you go on to say there that you, "Ruled out every other possibility for these difficulties." Is that true? I mean, did you rule out all other possibilities for the DAs in November of `97 to February of `98? Did you rule out all possibilities as to the sluggishness that you don't know when it occurred and did you rule out all possibilities as to the laminitis in September of `97?
A. Did I rule out all of the possibilities?
Q. For those difficulties that you said existed.
A. I guess we did not rule out every other possibility.
Filing 99, Ex. B at 105:15-106:3 (emphasis supplied). Thus, the defendant argues that since Dr. Schawang failed to address and negate all other possible causes for the herd health conditions he allegedly observed, his opinion that such conditions were caused by Farmland rations must be excluded. I disagree.
In his report, Dr. Schawang alludes to potential alternative causes for the plaintiff's herd health difficulties, including facility deficiencies, poor management practices, stray voltage, vaccination problems, and genetics. See filing 99, Ex. A. Dr. Schawang also refers to the steps he and Dr. Pedersen took to negate these potential alternative causes, including an examination of the plaintiff's facilities, and a review of David Jisa's management practices, vaccination program, and reproductive program. In addition, Dr Schawang notes that he and Dr. Pedersen "performed . . . liver biopsies [and] checked selenium levels and vitamin E levels. . . ." Id. at 2. Thus, it does appear that Dr. Schawang considered and ruled out alternative causes for the plaintiff's herd health problems. Furthermore, despite the defendant's suggestion to the contrary, Dr. Schawang's "admission" that he "did not rule out every other possibility," does not necessarily render his opinion as to causation inadmissible. Filing 99, Ex. B at 106:2-3 (emphasis supplied); see, e.g., Daubert, 509 U.S. at 590 ("[I]t would be unreasonable to conclude that the subject of scientific testimony must be `known' to a certainty; arguably, there are no certainties in science."); Sorensen v. Shaklee Corp., 31 F.3d 638, 650 (8th Cir. 1994) (" Daubert does not require proof with certainty."); Jahn v. Equine Srvs., PSC, 233 F.3d 382, 390 (6th Cir. 2000) ("In order to be admissible on the issue of causation, an expert's testimony need not eliminate all other possible causes of the injury." (citation omitted)); Ambrosini v. Labarraque, 101 F.3d 129, 140 (D.C. Cir. 1996), cert. dismissed, 520 U.S. 1205 (1997) ("The fact that several possible causes might remain `unilluminated' . . . only goes to the accuracy of the conclusion, not the soundness of the methodology." (citation omitted)); Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987) ("We do not hold, of course, that admissibility of an expert opinion depends upon the expert disproving or discrediting every possible cause other than the one espoused by him."); Lakie v. SmithKline Beecham, 965 F. Supp. 49, 57 (D.D.C. 1997) ("The differential diagnosis methodology, based on the scientific method, requires that alternate causes of the condition be eliminated. However, an expert must not eliminate each and every possible alternative cause."); Turner, 229 F.3d at 1208 (agreeing that "a medical opinion about causation, based upon a proper differential diagnosis [one that systematically rules out other possible causes] is sufficiently reliable to satisfy Daubert"). Thus, the defendant's motion must fail, to the extent it is based on a claim that Dr. Schawang failed to exclude all possible alternative causes for the plaintiff's alleged herd health problems.
For the reasons outlined above, I find that there is a sufficient factual basis to support Dr. Schawang's opinion as to causation. The defendant's motion to exclude or to limit Dr. Schawang's testimony will therefore be denied.
D. Dr. Randall Pedersen
The defendant also challenges the opinion as to causation offered by Dr. Randall Pedersen, another one of the plaintiff's veterinarians. In his report, Dr. Pedersen asserts the following:
It is my opinion, to a reasonable degree of scientific certainty, that the Farmland ration formulation did cause damage to the Jisa dairy farm and, furthermore, Farmland knew of this dangerous ration and failed to warn the farmer, failed to disclose to the farmer that the ration had been found to be negligent and unreasonably dangerous as a matter of law and failed to protect the farmer from further harm.
Filing 101, Ex. A at 3. According to the defendant, this opinion must be excluded because (1) Dr. Pedersen is not qualified under Rule 702 to opine that the plaintiff's alleged herd health problems were nutritionally based; (2) even if he is so qualified, Dr. Pedersen has insufficient information regarding the rations at issue on which to base his opinion; (3) contrary to the assertions included in Pedersen's report, the timing of the alleged herd health problems does not support his opinion; and (4) Dr. Pedersen's reliance on the testing done at Kansas State University College of Veterinary Medicine is misplaced, as such testing does not establish that it was the Farmland feeds that caused the maladies described in the University's report. In response, the plaintiff asserts that "Dr. Pedersen's testimony relies on principles well-known, and well-respected in the scientific community." Plaintiff's Brief at 3. After reviewing the submissions of both parties, I find that Dr. Pedersen's testimony will be limited.
As an initial matter, however, the defendant's first ground for exclusion must fail. According to the defendant, Dr. Pedersen is not qualified to opine as to whether a particular dairy ration is so nutritionally inadequate that it would cause herd health problems. The defendant argues that Dr. Pedersen "all but conceded this point" during his deposition, where he admitted that he was not an expert in formulating or balancing nutritional rations for dairy cattle. See filing 101, Ex. B at 108:8-20; see also id. at 106:23-107:1, 108:21-109:10, 119:19-120:4, 176:2-7. Thus, the defendant concludes, "[g]iven [Dr.] Pedersen's complete lack of knowledge regarding ration formulation and nutritional requirements for dairy animals, he is not qualified to opine that the Farmland rations at issue were inadequate and led to herd health problems." Defendant's Brief at 8 (filing 100). I disagree.
In his report, Dr. Pedersen states that he has been a dairy consultant and veterinarian for the last twenty years. He also indicates that he has performed the herd health and reproductive work for the Jisa Farms herd "for a number of years." Filing 101, Ex. A at 1. Thus, I agree with the plaintiff that Dr. Pedersen has the requisite knowledge, skill, and experience to determine when medical conditions, such as chronic acidosis, are caused by nutritional imbalances in a particular diet. In short, I simply am not convinced that one must be an "expert" in formulating or balancing rations to make such diagnoses. See, e.g., filing 106, Ex. 2 at 167:12 (Dr. Pedersen's testimony in Dodds v. Farmland Industries, Inc.) (stating that "I don't balance rations, but I certainly check rations"). Thus, the defendant's motion will be denied, to the extent it is based on a claim that Dr. Pedersen is not qualified to offer his opinion as to the cause of the plaintiff's alleged herd health problems.
Next, it seems to me that the defendant's second, third, and fourth grounds for exclusion, as listed above, may be considered together as foundational challenges. In his report, Dr. Pedersen indicates that he is basing his opinion regarding causation on the following: (1) the clinical signs he observed after the plaintiff had switched to the Farmland rations; (2) the testing performed by Kansas State University College of Veterinary Medicine, which apparently revealed that the plaintiff's herd was suffering from sub-acute rumen acidosis; and (3) Dr. Pedersen's involvement with other Nebraska dairy herds that had been exposed to the Farmland rations. See filing 101, Ex. A. In its motion, the defendant specifically challenges the first and second bases as insufficient to support Dr. Pedersen's opinion. After reviewing all three of the bases, I find that Dr. Pedersen's testimony must be limited.
First, there is no indication that Dr. Pedersen can connect the clinical signs he observed to the Farmland feed rations. David Jisa, the owner of the plaintiff dairy, testified during his deposition that he believed Farmland ceased formulating rations for his dairy in mid-September of 1997. See filing 101, Ex. C at 74:24-75:7; see also filing 82 at 2 (Memorandum and Order on Motion for Summary Judgment by Defendant Farmland Industries, Inc.). Immediately thereafter, nutritionist Mike Bettle formulated the plaintiff's rations for approximately thirty to sixty days, at the end of which time Cecelia Dorn began formulating rations. See filing 101, Ex. C at 69:23-70:17. It appears that Dr. Pedersen's causation theory is based, in part, on an alleged temporal relationship between the feeding of the Farmland rations and the occurrence of several "difficulties," including (1) lameness and laminitis; (2) sudden death; (3) animals going down; (4) diarrhea or loose stools; (5) increased incidences of displaced abomasums; (6) reproductive difficulties; (7) cows bouncing on and off feed; (8) increased somatic cell counts; (9) cows eating sand; (10) abomasol ulcers; (11) increased culling; and (12) cows "not making it." See filing 101, Ex. A at 1-2. As the defendant correctly notes in its brief, however, Dr. Pedersen admitted during his deposition that he could not recall when any of the alleged conditions outlined above first appeared in the Jisa Farms' herd. See filing 101, Ex. B. at 175:18-21 (stating that he could not give "specific dates" as to when the problems surfaced with milk fever, laminitis, and acidosis); id. at 67:4-6 (stating that he "[did] not know" when the acute deaths occurred); id. at 68:19-20 (agreeing that he did not know when the plaintiff's cows started "going down"); id. at 142:4-8 (stating that he "[couldn't] put a date on" when the diarrhea/loose stool problem surfaced); id. at 75:3-5 (admitting that he did not know when the increased incidence of displaced abomasums occurred); id. at 86:10-24 (indicating that he could not "put a time" on when the plaintiff's reproductive difficulties first occurred); id. at 143:5-13 (agreeing that he could not pin point when the incidence of "bouncing on and off feed" began increasing); id. at 69:19-24 (admitting that there was actually no problem with the herd's somatic cell counts); id. at 144:5-13 (stating that he "[couldn't] give . . . a time" as to when certain animals were observed eating sand); id. at 81:23-25 (acknowledging that he did not know when abomasol ulcers began appearing in the plaintiff's herd); id. at 87:5-7 (indicating that he could not answer when the increased culling started); id. at 149:15-150:19 (admitting that the cows that "did not make it" were exposed to Farmland's rations, Mike Bettle's rations, Cecelia Dorn's rations, and Doug Weich's rations). More specifically, the defendant notes that Dr. Pedersen admittedly does not know whether any of these conditions surfaced before October 1997, while the Jisa Farms' herd was still on the Farmland feed rations. See id. at 140:1-12; see also id. at 142:2-13 (referring specifically to the diarrhea/loose stool problem); id. at 86:10-15 (referring specifically to the decreased heat intensities). In terms of timing, Dr. Pedersen could only state that the problems allegedly experienced by the plaintiff occurred sometime after Farmland rations were started. See id. at 140:7-9 ("[T]he only thing I can say is most of these [difficulties] would have started after Farmland started in."). Thus, while Dr. Pedersen's alleged clinical observations may justifiably lead him to conclude that a nutritional imbalance was the cause of the plaintiff's herd health difficulties, there is no indication that Dr. Pedersen made any effort whatsoever to exclude alternative sources of this imbalance. In short, Dr. Pedersen simply has not explained why he attributes his finding of a nutritional imbalance to the Farmland rations, and not to the rations prepared by either Mike Bettle or Cecelia Dorn. See, e.g., General Elec. Co., 522 U.S. at 146 ("[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." (citation omitted)); Hose, 70 F.3d at 973 ("In determining the cause of a person's injuries, it is relevant that other possible sources of his injuries, argued for by defense counsel, have been ruled out by his treating physicians. Indeed, ruling out alternative explanations for injuries is a valid medical method." (citation omitted)); Thurman v. Missouri Gas Energy, 107 F. Supp.2d 1046, 1050 (W.D.Mo. 2000) (recognizing that "only if [the] expert utterly fails to consider alternative causes or fails to explain why the opinion remains sound in light of alternative causes is an expert's opinion unreliable for failure to account for all potential causes" (citing Westberry v. Gummi AB, 178 F.3d 257, 265 (4th Cir. 1999), In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 764-65 (3rd Cir. 1994))); id. at 1059 ("[The expert's] conclusion was reached without eliminating other causes. The opinion will not meet the Daubert/ Kumho test for reliability since the expert did not provide the Court with a suitable explanation for how the opinion was arrived at."). I therefore agree with the defendant that Dr. Pedersen has not demonstrated a temporal relationship between the feeding of the Farmland rations and the appearance of the alleged herd health problems. Accordingly, I find that this alleged temporal relationship does not sufficiently support Dr. Pedersen's opinion as to causation.
Doug Weich was the plaintiff's nutritionist for approximately eighteen months before the plaintiff switched to Farmland feeds in the fall of 1996. See filing 103, Ex. A. In April of 1999, Weich returned to Jisa Farms and, along with Cecelia Dorn, continues to provide the plaintiff with nutritional services. See id.; filing 103, Ex. D at 30:25-31:03.
The plaintiff has not suggested that additional evidence submitted at trial will enable Dr. Pedersen to connect the clinical signs he allegedly observed to the Farmland rations. See, e.g., infra Part II.E; see also Fed.R.Evid. 703 (permitting experts to base their opinions on "facts or data . . . perceived by or made known to the expert at or before the hearing").
The defendant also challenges Dr. Pedersen's reliance on the testing performed by the Kansas State University College of Veterinary Medicine (hereinafter University). In his report, Dr. Pedersen indicates that he and Dr. Schawang sent four live cows to the University "to be killed and autopsied." See filing 101, Ex. A at 2. According to Dr. Pedersen, the University concluded that the animals were suffering from sub-acute rumen acidosis. Id. Dr. Pedersen asserts that "[t]he primary causal factor for this condition is ration that is improperly balanced and causes diminished rumen function, lack of rumination, and ultimately rumen acidosis." Id.
In challenging Dr. Pedersen's reliance on the University testing, which was conducted almost two years after Farmland stopped providing the plaintiff's rations, the defendant asserts that the results simply do not support Dr. Pedersen's opinion that the Farmland rations caused the alleged nutritional imbalance and resulting acidosis. I agree with the defendant.
Apparently, the University testing revealed an old abomasal ulcer, renal infarcts, pulmonary thrombosis, myocarditis, fatty liver, and chronic laminitis. See filing 101, Ex. B at 47:10-14, 53:9-14, 54:15-20. As the defendant notes, however, Dr. Pedersen admitted during his deposition that there was no way to tie these alleged conditions to the Farmland feed. See id. at 45:20-22 (agreeing that the four cows were sent to the University for testing in June or July of 1999); id. at 48:25-49:3 (agreeing that there was no way he knew of to tie the abomasal ulcer that appeared in July of 1999 to the Farmland feed); id. at 50:16-21 (acknowledging that there was no way to tie the renal infarct to the Farmland feed); id. at 51:4-8, 51:17-52:4 (admitting that there was no way to tie the pulmonary thrombosis to the Farmland feed); id. at 52:17-19 (acknowledging that there was no way to tie the myocarditis to the Farmland feed); id. at 53:19-25 (agreeing that there was no way to tie the abscesses, renal infarcts, or fatty liver to the Farmland feed); id. at 54:18-55:2 (admitting that there was no way to tie the chronic laminitis diagnosis to the Farmland feed). Thus, here again Dr. Pedersen has failed to explain why he attributes the University's findings to the Farmland rations, and not to the rations supplied by either Mike Bettle or Cecelia Dorn. Furthermore, as demonstrated by the following excerpt from his deposition, Dr. Pedersen can opine only in terms of "possibilities" with respect to the connection between the University's findings and the Farmland rations:
Q. Doctor, we talked about, earlier when we reviewed the case, Exhibits 3, 4 and 5, certain diagnoses that were made at [the University] on some animals that had been submitted to them for evaluation. Specifically we talked about abomasal insult, renal infarcts and interstitial myocarditis. Do you recall giving testimony about those?
A. Yes.
Q. And isn't it true that each of those three episodes could have been caused by the Farmland ration which you've testified about as being improper?
A. It's possible.
Id. at 170:24-171:13 (objection omitted) (emphasis supplied). However, as the defendant notes in its brief, "`[m]ere possibilities or conjecture cannot establish a probability.'" Thomas v. FAG Bearings Corp., 846 F. Supp. 1382, 1394 (W.D.Mo. 1994) (citing Renaud v. Martin Marietta Corp., 749 F. Supp. 1545, 1553 (D.Colo. 1990); see also id. ("It is central to the concept of expert testimony that such testimony is only admissible if it speaks in terms of probabilities instead of possibilities." (citing Lanza v. Poretti, 537 F. Supp. 777, 786 n. 14 (E.D.Pa. 1982))). Thus, for the reasons outlined above, I agree with the defendant that the results of the University's 1999 testing do not sufficiently support Dr. Pedersen's causation theory.
Finally, it also appears that Dr. Pedersen is basing his causation opinion on his involvement "with a number of dairy herds across the State of Nebraska that were exposed to the same Farmland ration which inappropriately introduces a diet excessively high in concentrate as contrasted to effective fiber and causes this condition [ i.e., acidosis]." Filing 101, Ex. A at 3 (emphasis supplied). Although neither the defendant nor the plaintiff specifically address this basis in their respective briefs, the plaintiff has submitted a transcript of Dr. Pedersen's trial testimony in the Dodds v. Farmland Industries, Inc. case that seems to be relevant. See filing 106, Ex. 2. During the Dodds trial, Dr. Pedersen indicated that he examined the Farmland feed supplied to the Dodd herd and concluded that there were problems with the rations. See id. at 154:21-159:16, 162:23-164:2, 214:12-19. However, in this case, Dr. Pedersen admits that he did not examine either the rations themselves or the ration sheets formulated by Farmland for Jisa Farms. See filing 101, Ex. B. at 123:11-124:5; filing 106, Ex. 3 at 161:6-12. The only indication that Dr. Pedersen has any basis for equating the Farmland rations prepared for Jisa Farms with the "inappropriate" Farmland rations prepared for other Nebraska dairies is the following deposition excerpt, in which Dr. Pedersen said that he visited with a nutritionist, although he is not sure which one, who had seen both the Dodds and Jisa Farms rations:
Q. Where is it that the ration that Jisa fed to his animals was found to be negligent and unreasonably dangerous as a matter of law?
A. Comparing it to Randy Dodds' herd, it was a very similar ration.
Q. You haven't seen the rations in Jisa, have you?
A. The symptoms that we were seeing in the herd and it was-and visiting with Dave was similar-type ration.
Q. But you haven't seen the rations, have you?
A. No, I have not.
Q. You don't know whether they're similar or not, do you?
A. I know that they were similar.
Q. How do you know that?
A. Just visiting with the nutritionists.
Q. Which nutritionist?
A. Celia [sic] would be one.
Q. And would you disagree with Ms. Dorn's testimony that she has no recollection of the content of any ration Farmland fed to-fed to the Jisa herd?
A. I —
A. No, I don't know
Q. Assuming her testimony was that she thought she had seen one ration at Jisa that Farmland had prepared but she couldn't remember what was in that ration, would it be your testimony that she has told you that the rations that Farmland prepared were-for Jisa were similar to the rations that you were talking about in the Dodds case?
A. I thought it was possibly-I did talk to a nutritionist that had seen both rations. Whether it was Celia [sic] or not, I can't tell you.
Q. Who else would it have been?
A. There was another nutritionist. I'd have to check and see. I can't-but this went through the court. And I'd have to see who it was.
Filing 106, Ex. 3 at 161:1-162:17; see also filing 97, Ex. B at 9:1-10:21, 17:2-18:9 (indicating that Cecelia Dorn has "no personal knowledge" as to the content of the Farmland ration). This excerpt, however, does little to advance the plaintiff's cause. Dr. Pedersen's bare assertion that an unnamed nutritionist told him the Farmland and Dodd rations were similar is simply not enough to demonstrate that "a number of dairy herds across the State of Nebraska . . . were exposed to the same [inappropriate] Farmland ration. . . ." See filing 101, Ex. A at 3 (emphasis supplied); filing 101, Ex. B at 123:11-124:5. In short, although Dr. Pedersen implies in his report that he was able to compare the Farmland rations prepared for the plaintiff with the Farmland rations prepared for other Nebraska dairies, the record before me suggests otherwise. Finally, even if the plaintiff's herd was, indeed, exposed to the "same" rations that Farmland formulated for other Nebraska dairies, I am not persuaded that this fact-either alone or in conjunction with Dr. Pedersen's alleged observations and the results of the University's 1999 testing-provides a sufficient basis for Dr. Pedersen's causation opinion. I therefore find that Dr. Pedersen's experiences with other dairy herds in Nebraska exposed to "the same Farmland ration" do not sufficiently support his opinion as to causation.
Thus, for the reasons outlined above, I find that the Dr. Pedersen will be barred from testifying that the plaintiff's alleged herd health difficulties were caused by the Farmland feed rations. See, e.g., Loudermill, 863 F.2d at 570 (providing that an expert's opinion may be excluded when it is "so fundamentally unsupported that it can offer no assistance to the jury"); Thomas, 846 F. Supp. at 1394 (recognizing that "[a] factual basis may be so lacking for an opinion so as to render it scientifically unreliable"). Dr. Pedersen may testify as to general principles regarding dairy health. He may also testify regarding his experiences with the Jisa Farms' herd before its exposure to the Farmland feeds, his clinical observations after the herds' exposure to the Farmland feeds, his efforts to treat the animals, and his reasons for ruling out other, non-nutritional causes for the alleged difficulties. All are relevant to the case. In short, he will not be permitted to state his ultimate opinion that the alleged nutritional imbalances were caused by the Farmland feeds.
E. Doug Weich
Next, the defendant challenges the expert testimony of dairy nutritionist Doug Weich. Weich was the plaintiff's nutritionist for approximately eighteen months before the plaintiff switched to Farmland feeds in the fall of 1996. See filing 103, Ex. A. Weich returned to Jisa Farms in April of 1999 and apparently continues to provide the plaintiff with nutritional services. See id.; filing 103, Ex. D at 30:25-31:3. In his report, Weich states the following:
It is my opinion that the rations being utilized during the Farmland service compromised sound herd health.
[T]here is no doubt in my mind that the difficulties Jisa Farms was experiencing with previously described [symptoms of] rumen acidosis and other deleterious health effects, were a direct and proximate result of the inappropriately balanced rations.
During his deposition, Weich indicated that this phrase should have been added to his opinion. See filing 103, Ex. D at 116:16-22.
Filing 103, Ex. A at 1-2. It appears that Weich is basing the above opinions on the following: (1) observations he made at the plaintiff's dairy in April of 1999; (2) conversations with David Jisa regarding the level of non-fiber carbohydrates in the rations prepared by Farmland; (3) conversations with David Jisa regarding the July 1999 testing performed by the Kansas State University College of Veterinary Medicine (hereinafter University); and (4) the results of a particle separation test performed by Cecelia Dorn. According to the defendant, none of these bases, taken either individually or together, provides a sufficient foundation for Weich's conclusions. I disagree.
The results of this testing are described in Part II.D above.
In his report, Weich also explains that he excluded alternative, non-nutritional causes for the plaintiff's alleged herd health problems: "Their overall management, herd health, cropping practices, and heifer raising were appropriately managed. They had good products available in their equipment and facilities. Their equipment was in good shape [and] their milking process was extremely well-organized. . . ." Filing 103, Ex. A at 2.
In doing so, however, I note that there appears to be foundational problems with some of the grounds on which Weich bases his opinion. For example, when questioned about his conversations with David Jisa regarding the July 1999 testing performed by the University, Weich admits that he does not know whether the University's diagnosis and findings could be tied to the Farmland feed. See filing 103, Ex. D at 70:6-23 (indicating that this was not a matter within his area of expertise). In addition, with respect to the particle separation test, Weich acknowledges that he does not know whether Dorn performed the test on the Farmland or the Bettle rations. Weich could only state that this test was done when Dorn first started with Jisa Farms in October of 1997. See id. at 97:10-16. Given Dorn's deposition testimony that she has no personal knowledge regarding the content of the Farmland rations, it seems likely that this test was conducted on the rations prepared by Bettle. See filing 97, Ex. B at 9:1-10:21, 17:2-18:9 (indicating that Dorn "was not on the [Jisa] farm when Farmland was there" and therefore had no "personal knowledge" with respect to the contents of the rations). Thus, neither of these two bases, alone or together, appears to provide a sufficient foundation for Weich's opinion regarding the cause of the plaintiff's alleged herd health problems.
In supporting his opinions, Weich refers to, inter alia, the herd health conditions he observed upon returning to Jisa Farms in April of 1999. See id. Weich asserts that these conditions included abscessed and swollen hoof pads and joints, a decline in overall body condition and hair coats, reproductive difficulty, reduced milk production potential, oscillating dry matter intakes, and a sensitivity to higher energy diets. As the defendant notes in its brief, however, Weich admitted during his deposition that the conditions he observed could have surfaced at any time after he left the plaintiff's dairy in the fall of 1996. See filing 103, Ex. D at 105:6-22 (referring to the abscessed and swollen hoof pads and joints); 105:23-106:24 (referring to the decline in overall body condition and hair coats); 106:25-107:22, 112:21-113:05 (referring to reproductive difficulty and reduced milk production potential); 113:06-25 (referring to oscillating dry matter intakes); 121:14-122:4 (referring to the sensitivity to high energy diets). Weich also acknowledged that because he had not reviewed any of the rations formulated by Farmland, Bettle, or Dorn, and, therefore, did not know the content of such rations, he could not connect the symptoms he observed in April of 1999 to the Farmland rations utilized by the plaintiff in 1996 and 1997. See id. at 78:2-8, 111:13-112:20, 113:21-25, 121:14-122:4. Thus, the defendant concludes, Weich's observations do not support his opinion that the plaintiff's alleged herd health difficulties were caused by the Farmland rations. I disagree.
During his deposition, Weich explained that he observed "a certain series of cows upon [his] first visits" to Jisa Farms. Filing 103, Ex. D at 75:23-25. According to Weich:
[T]he bases of my opinions were that I was present as a nutritionist in `96. I was able to see many of these animals in this series. There were certain rations that were fed between the time that I was there and came back, and there were symptoms of ruminal acidosis and the effects, the lameness and the effects of acidosis.Id. at 76:9-16.
In challenging Weich's observations, the defendant notes the following: (1) Weich admitted that he did not know the percent of cows from the referenced series that were present in the herd both in 1996 when he left and in April of 1999 when he returned, and (2) Weich acknowledged that he is not sure whether additional cows were added to those series after he left the dairy in 1996. See id. at 50:5-9, 104:15-20, 49:21-50:4. Thus, the defendant argues that "since Weich may not have observed a number of these cows prior to his leaving plaintiff's dairy in 1996, and since he does not know the number of cows remaining from 1996 and in the herd in April of 1999, his observational premise is fatally flawed." Defendant's Brief at 12 n. 3 (filing 102). I disagree. During his deposition, Weich indicated on more than one occasion that the "DHIA records" would confirm the percentage of cattle that were a part of the plaintiff's herd both in the fall 1996, when he left Jisa Farms, and April of 1999, when he returned to Jisa Farms. Filing 103, Ex. D at 50:10-13, 104:15-18. I therefore am not persuaded that Weich's observational premise is rendered "fatally flawed" by his inability to speak in terms of percentages at the time of his deposition.
During his deposition, Weich suggested that if he were afforded an opportunity to review those rations utilized by the plaintiff from the fall of 1996 to April of 1999, he could, indeed, tie the symptoms he observed to the Farmland feed. See id. at 77:18-24 ("If I was able to see the diets to demonstrate the high level of nonstructural carbohydrate, I am certain we could tie [the symptoms to the Farmland feed]"); 112:2-6 ("But it's a matter of when you look at the diets prepared by Cecilia [sic] Dorn and Bettle[,] I can't speak [as to these] because I haven't seen them, I think there is a high correlation between the incidence of the low rumen Ph and what was being fed by Farmland."). In its brief, the plaintiff indicates that "feed tests" as well as "testimony from other witnesses who did see the forages" are available. See Plaintiff's Brief at 15. Noting that Rule 703 permits expert witnesses to base their opinions on "facts or data" presented at trial, the plaintiff is apparently arguing that this additional evidence will enable Weich to connect his observations to the Farmland feed, thus providing a sufficient foundation to support his opinion regarding the cause of the plaintiff's alleged herd health problems. See id. I am inclined to agree. It appears that Weich's knowledge, experience, and education would allow him to base his causation opinion on a review of the feed tests, witness testimony, ration sheets, or any other reliable evidence presented at trial regarding the content of the Farmland, Bettle, and/or Dorn rations. Such evidence, if received at the trial, may very well provide the necessary "link" between the Farmland rations and the conditions Weich observed in April of 1999. Thus, given the plaintiff's assertions, I am hesitant to limit Weich's testimony as to the cause of the plaintiff's herd health problems. At this point, Weich's opinion simply does not appear to be "so fundamentally unsupported that it can offer no assistance to the jury." See Loudermill, 863 F.2d at 570. The defendant's motion will therefore be denied.
F. Dr. Wallace Wass
Finally, the defendant challenges several opinions contained in the report of Dr. Wallace Wass, a consulting veterinarian retained by the plaintiff. In this report, Dr. Wass opines, inter alia, that "[t]he Farmland rations, as furnished to Jisa Farms, [were] deficient, inappropriate, and contrary to the standard of care to which persons formulating dairy rations for dairy animals are held." Filing 105, Ex. A ¶ 1(c). In challenging this opinion, the defendant first attacks Dr. Wass' qualifications. Noting that Dr. Wass has repeatedly confessed, during his deposition in this case and other cases involving Farmland feeds, that he is not a dairy nutritionist, the defendant contends that Dr. Wass "is not qualified under Rule 702 to give an opinion that the rations at issue were `deficient, inappropriate and contrary to the standard of care' of a nutritionist in the dairy industry." Defendant's Brief at 6 (filing 104); see filing 105, Ex. B at 92:14-16 (deposition in the present case); filing 105, Ex. C at 5:8, 5:23-6:2 (deposition in Lazy H Farm, Inv. v. Farmland Industries, Inc.); filing 105, Ex. D at 36:18-19 (deposition in Racicky v. Farmland Industries, Inc.). I disagree.
Dr. Wass' curriculum vitae indicates that he holds two advanced degrees and has published extensively in his field. See filing 106, Ex. 1 (curriculum vitae); see also filing 106, Ex. 1 at 29:19-30:5 (stating that he received a DVM degree and a PHD degree in medicine from the University of Minnesota). He also has over forty years of experience in private practice and academics. Thus, I agree with the plaintiff that Dr. Wass has the requisite knowledge, skill, experience, and education to testify as to the appropriateness of particular rations, as well as to the effect of inappropriate rations on the rumen. As was the case with Dr. Pedersen, I am simply not convinced that one must be an "expert" in formulating or balancing rations to offer such testimony. See supra Part II.D. Thus, the defendant's motion for exclusion must fail, to the extent it is based on Dr. Wass' alleged lack of qualifications.
The defendant also argues that even if Dr. Wass is qualified to offer his opinion regarding the appropriateness of the rations at issue, "the basis for [his] opinion is so lacking in substance that it should be excluded." Defendant's Brief at 6 (filing 104). In support of its claim, the defendant notes that during his deposition, Dr. Wass admitted that he had not reviewed any of the rations formulated by Farmland. See filing 105, Ex. B at 15:25-16:12, 16:16-17:1, 27:7-16, 95:4-11, 96:9-16. The defendant therefore concludes that since Dr. Wass conducted no analysis of the rations at issue, "[his] opinion that the Farmland rations were inappropriate and contrary to the dairy nutrition standard of care should be excluded. . . ." Defendant's Brief at 8 (filing 104). I disagree. As noted above, Rule 703 permits experts to base their opinions on "facts or data . . . perceived by or made known to the expert at or before the hearing." Fed.R.Evid. 703; see also Kemp, 23 F.3d at 213 (recognizing the distinction between a lay witness, "who may testify only about matters within his or her personal knowledge," and an expert witness, "who may give his or her opinion about a matter within the witness' expertise")). Thus, Dr. Wass may base his opinion regarding the appropriateness of the Farmland rations on his review of the reports provided by other experts retained by the plaintiff, his review of the plaintiff's DHI records, or his review of any other reliable evidence presented at trial relating to (1) the alleged decline of the plaintiff's herd health, and (2) the content of the rations prepared by the plaintiff's nutritionists. See filing 105, Ex. A ¶ 2 (indicating that Dr. Wass based his opinion on, inter alia, the reports rendered by the plaintiff's other experts and the plaintiff's DHI records). I therefore am not persuaded that Dr. Wass' failure to examine the rations prepared by Farmland necessarily bars him from offering his opinion as to the appropriateness of such rations. Accordingly, the defendant's motion to exclude will be denied, to the extent it is based on a claim that Dr. Wass has not reviewed the Farmland rations.
In challenging Dr. Wass' opinion, the defendant also refers to the following excerpt from his deposition:
Q. And Exhibit No. 20, is that a ration?
A. Summary of suggested rations. That's what that is.
Q. All right. And you don't know when it was fed or for how long it was fed or if it was even fed?
A. No, I don't intend to testify on that because you have two other nutritionists who will testify on it.
Filing 105, Ex. B at 95:4-11. The defendant apparently characterizes the above passage as an "admission" by Dr. Wass that he has no opinions regarding the rations. See Defendant's Brief at 8 (filing 104) ("[Dr. Wass] states that he does not intend to testify regarding the rations because two other nutritionists will testify on behalf of plaintiff."). I disagree. It appears to me that Dr. Wass is simply acknowledging that other persons involved in the plaintiff's case will be able to pinpoint the time frame during which the plaintiff utilized Farmland feeds.
Next, the defendant challenges Dr. Wass' opinion regarding Farmland's use of "excessive" grain. According to Dr. Wass, "[t]he Farmland ration advice was inappropriate in that it provide[d] for: (i) [e]xcessive grain in the ration of the dairy cows." Filing 105, Ex A ¶ 1(d)(i). Noting that Dr. Wass admitted during his deposition that he did not know the amount of grain used in the Farmland rations or the percentage of grain used compared to the percentage of forage used, the defendant contends that this opinion should be excluded as baseless. See filing 105, Ex. B at 107:22-108:16. I disagree.
During his deposition, Dr. Wass indicated that he was basing his opinion regarding Farmland's "excessive" use of grain "primarily on what [he was] told by the farmer [David Jisa] and the herdsman [Terry Doneff] about the ration and what was happening to the cows." Id. at 108:4-7. If this were the only basis available for Dr. Wass' opinion, I may be inclined to exclude it. See, e.g., In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 762 (3rd Cir. 1994), cert. denied, 513 U.S. 1190 (1995) ("We do not doubt the propriety of a medical report prepared just for litigation purposes, but a physician who evaluates a patient in preparation for litigation should seek more than a patient's self-report of symptoms or illness and hence should either examine the patient or review the patient's medical records simply in order to determine that a patient is ill and what illness the patient has contracted."); In re Agent Orange Prod. Liab. Litig., 611 F. Supp. 1223, 1247 (D.C.N.Y. 1985), aff'd, 818 F.2d 187 (2nd Cir. 1987), and cert. denied, 487 U.S. 1234 (1988) (concluding that a consulting physician's source of information was unreliable where "the usual inducement to candor with a physician-the hope of successful treatment or diagnosis-was wholly lacking," and, instead, the plaintiffs "had every incentive to be overinclusive in describing their symptoms . . ."). As discussed above, however, Dr. Wass indicates that he also relied on, inter alia, the reports of the plaintiff's other experts in forming his opinions. See filing 105, Ex. B ¶ 2(c). Dr. Schawang's report, in particular, would appear to aid the plaintiff in demonstrating a sufficient foundation for Dr. Wass' opinion. Dr. Schawang's observations relating to the decline in the plaintiff's herd health, which appeared to correspond with the plaintiff's use of Farmland feed, combined with (1) Dr. Schawang's reported efforts to exclude alternative causes for the plaintiff's herd health problems, and (2) the statements by David Jisa and Terry Doneff to Dr. Wass regarding the content of the rations, appear to provide a sufficient minimum foundation for Dr. Wass to infer, based on his knowledge, experience, and education, that the plaintiff's difficulties were caused by a nutritional imbalance, such as the excessive use of grain and/or other concentrates. Thus, the defendant's motion will be denied, to the extent it is based on Dr. Wass' alleged lack of knowledge regarding the percentage of grain actually contained in the Farmland rations.
In addition, I also note that although the parties have not submitted the actual ration formulations in connection with the motions at issue, there is evidence in the record that appears to provide additional support for Dr. Wass' opinion. During his deposition, Dr. Wass stated that as "a rule of thumb," the ratio of forage to concentrates in a dairy ration should be 50/50. See filing 105, Ex. B at 108:14-18. The defendant, in connection with its motion to exclude or, in the alternative, to limit the testimony of Dr. Randall Schawang, included the affidavit of Dr. Robert M. Cook, who apparently reviewed the Farmland rations prepared for the plaintiff. See filing 99, Ex. C ¶ 3. Dr. Cook stated that "the highest concentrate level contained in the rations reviewed was 58%." Id. ¶ 4. Thus, there does appear to be additional evidence that the level of concentrates in at least some of the Farmland rations was "excessive," based on Dr. Wass' "rule of thumb."
The defendant also challenges the following opinion regarding Farmland's alleged use of bakery products in its rations:
The Farmland ration advice was inappropriate in that it provide[d] for:
(ii) Use of bakery products. The quality, consistency and utility of these bakery products varies so significantly that they introduce substantial risks.
Filing 105, Ex. A ¶ 1(d)(ii). In moving to exclude this opinion, the defendant refers me to the following passage from Dr. Wass' deposition:
Q. If I understand what you're telling me, you don't have a problem in and of itself with bakery products being used in the ration?
A. No, I don't, but some of the other experts that you're going to see quoted seem to be opposed to the use of those, primarily for the reason that they say you don't know what's in there.
Q. But let's talk about what Wally Wass thinks.
A. Yeah, I think it should be okay to feed those to cows.
Filing 105, Ex. B at 110:4-13. The defendant characterizes the above passage as a "concession" by Dr. Wass "that the use of bakery products in a dairy ration is acceptable. . . ." Defendant's Brief at 10 (filing 104). Thus, the defendant concludes, "although [Dr.] Wass contends the rations were inappropriate in that they contained bakery products, his own testimony refutes that position." Id. at 11. I agree with the defendant. Dr. Wass' opinion and deposition are, indeed, contradictory. Thus, while I will permit Dr. Wass to testify as to the "risks" that may accompany the use of bakery products in dairy rations, he will not be permitted to testify that the inclusion of bakery products, in and of itself, rendered the Farmland rations inappropriate. Given Dr. Wass' deposition testimony, there is simply no basis for such an opinion.
Next, the defendant challenges the following opinion included in Dr. Wass' expert report:
The feeds furnished to Jisa Farms were consistent with the nutritional recommendations, but were inappropriate because the grains were ground too finely for use in dairy rations, and the ingredients delivered were not appropriate because they were not incorporated into a proper ration.
Filing 105, Ex. A ¶ 1(e). While the defendant agrees with that portion of Dr. Wass' opinion stating that the rations were "consistent with the nutritional recommendations" of the dairy nutrition industry, it contends that "there exists no reasonable basis for the continuation of [Dr.] Wass' opinion that the rations were otherwise inappropriate." Defendant's Brief at 12 (filing 104). In challenging Dr. Wass' opinion, the defendant notes that during his deposition, Dr. Wass stated that, other than the alleged inclusion of bakery products and the alleged favoring of concentrate in the ration, the rations at issue were appropriate. See filing 105, Ex. B at 115:18-25. According to the defendant, however, Dr. Wass' opinion regarding the inclusion of bakery products and the favoring of concentrate over forage directly contradicts his testimony that he has no knowledge regarding these two aspects of the ration. See Defendant's Brief at 13 (filing 104). Thus, the defendant concludes, there is no basis for Dr. Wass' opinion, and it should be excluded. I agree with the defendant in part.
Dr. Wass will not be permitted to opine that Farmland's use of bakery products, in and of itself, rendered its rations "inappropriate." As discussed above, Dr. Wass conceded during his deposition that he believed "it should be okay" to include such products in dairy rations. See filing 105, Ex. B. at 110:4-13. With respect to Farmland's alleged favoring of concentrate in its rations, however, I have already concluded that a sufficient minimum foundation exists for Dr. Wass to infer, based on his knowledge, experience, and education, that the plaintiff's difficulties were caused by a nutritional imbalance, such as the excessive use of grain and/or other concentrates. It seems to me that same may be said regarding Farmland's alleged use of grains that were ground too finely. Thus, Dr. Wass may opine that Farmland's alleged favoring of concentrate in the rations and alleged use of finely-ground grain rendered its feeds "inappropriate."
See supra note 10 and accompanying text.
I also note that the defendant does not raise any specific argument for exclusion with respect to Dr. Wass' references, in ¶ 1(d)(ii) an ¶ 1(e) of his report, to grain that was allegedly ground too finely.
The defendant also attempts to exclude the following opinion included in Dr. Wass' expert report:
As a proximate cause of the Jisa Farms dairy animals ingesting feeds formulated pursuant to the Farmland rations, virtually all animals in the lactating herd contracted rumen acidosis and were damaged.
Filing 105, Ex. A ¶ 1(g). According to the defendant, the sole bases for Dr. Wass' conclusion regarding the number of animals allegedly affected by rumen acidosis are statements by David Jisa and his herdsman to the effect that "they continued to have problems with all of those cows." Filing 105, Ex. B at 120:10-11. The defendant contends that such statements do not provide an adequate basis for Dr. Wass' opinion that "virtually all animals in the lactating herd" contracted rumen acidosis. The plaintiff, in opposing the defendant's motion, asserts that Dr. Wass also relied on the reports of the plaintiff's treating veterinarians in forming his opinion. A review of these reports reveals that Dr. Schawang observed symptoms of rumen acidosis with respect to the plaintiff's entire herd. See filing 99, Ex. A at 2 ("All the animals had visibly deteriorating body conditions during this period of time and their general appearance and demeanor was very poor. The animals became restless and lethargic and began an array of difficult health symptoms including, as noted above, decreased milk production, rumen acidosis, laminitis and other feed difficulties, reproductive difficulties, and death."). Thus, Dr. Schawang's observations, combined with the information supplied by David Jisa and his herdsman, appear to provide a minimally sufficient basis for Dr. Wass' testimony regarding the number of animals allegedly afflicted by rumen acidosis. Accordingly, the defendant's motion will be denied, insofar as it seeks to exclude Dr. Wass' opinion that "virtually all animals in the lactating herd contracted rumen acidosis and were damaged."
The defendant does not appear to be challenging Dr. Wass' diagnosis, i.e., rumen acidosis. Instead, the plaintiff seems to focus on Dr. Wass' conclusion regarding the number of animals allegedly afflicted by this condition. See Defendant's Brief at 14-16 (filing 104). Thus, I, too, will focus my analysis on this aspect of Dr. Wass' opinion, and not on the diagnosis itself.
It seems to me that statements by an animal's owner regarding the animal's physical condition are, indeed, the type of information "reasonably relied upon" by consulting veterinarians in forming opinions. See Fed.R.Evid. 703. As noted above, however, I am not convinced that such statements, alone, will provide a sufficient factual foundation for the consulting expert's opinion relating to the cause of the animal's condition. See, e.g., In re Paoli R.R. Yard PCB Litig., 35 F.3d at 762 ("We do not doubt the propriety of a medical report prepared just for litigation purposes, but a physician who evaluates a patient in preparation for litigation should seek more than a patient's self report of symptoms or illness and hence should either examine the patient or review the patient's medical records simply in order to determine that a patient is ill and what illness the patient has contracted."); In re Agent Orange Prod. Liab. Litig., 611 F. Supp. at 1247 (concluding that a consulting physician's source of information was unreliable where "the usual inducement to candor with a physician-the hope of successful treatment or diagnosis-was wholly lacking," and, instead, the plaintiffs "had every incentive to be overinclusive in describing their symptoms . . .").
Finally, the defendant seeks to exclude the following opinion offered by Dr. Wass:
All abnormal changes in milk production and herd health are reasonably believed to have been related to the adverse dairy rations. On May 1, 1997[,] eleven cows died in a single day. As a result of the history obtained from Mr. Jisa, it is suspected that these cows died from acute hypomagnesemia, a condition often referred to as "grass tetany", that occurs under sometimes bizarre circumstances. It is entirely possible that the existing subacute rumen acidosis played a significant role in the loss of these cows as well.
Filing 104, Ex. A ¶ 1(i) (emphasis supplied). According to the defendant, "[t]his opinion, stated in terms chosen by [Dr.] Wass himself, does not meet the required level of scientific reliability necessary for the proffering of an expert opinion." Defendant's Brief at 17 (filing 104). I agree with the defendant. In discussing the alleged incidence of acute hypomagnesemia and its potential cause, Dr. Wass speaks only in terms of "suspicions" and "possibilities." Such speculation simply does not satisfy Rule 702's requirement that expert testimony be based on "sufficient facts or data." Fed.R.Evid. 702; see J.B. Hunt Transp., Inc., 243 F.3d at 444 ("`Expert testimony that is speculative is not competent proof and contributes nothing to a legally sufficient evidentiary basis.'" (citation omitted)); Jaurequi, 173 F.3d at 1084 (affirming district court's exclusion of expert testimony where the expert "provided no basis for [the court] to believe that his opinions are anything more than unabashed speculation"); Hose, 70 F.3d at 972 ("Reliability means the evidence must be based upon scientific knowledge, i.e., `ground[ed] in the methods and procedures of science,' and must represent `more than [a] subjective belief or [an] unsupported speculation.'" (citing Daubert, 509 U.S. at 590)); Loudermill, 863 F.2d at 570 ("As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination. . . . However, if an expert opinion is so fundamentally unsupported that it can offer no assistance to the jury, then the testimony should not be admitted." (citations omitted)). In addition, Dr. Wass conceded during his deposition that his theory regarding the possibility of a connection between hypomagnesemia and rumen acidosis was not supported by any literature in his field. See filing 105, Ex. B at 26:21-23 ("I don't think there is any literature that would associate hypomagnesemia . . . with rumen acidosis. . . ."). Thus, for the reasons outlined above, Dr. Wass will not be permitted to testify as to the opinions contained in ¶ 1(i) of his report.
In a supplemental report, Dr. Wass indicates that the sudden deaths due to hypomagnesemia actually occurred in 1995, not in May of 1997 as he stated in his original report and during his deposition. See filing 105, Ex. G at 1. Thus, it does not appear that Dr. Wass continues to hold this opinion. Nevertheless, to avoid confusion, I will briefly address the arguments for exclusion raised in the defendant's brief.
In addition, the defendant attempts to strike Dr. Wass' supplemental report on the grounds that it (1) gives no opinion, (2) does not change any opinion set forth in his original report, and (3) is not the type of "expert report" as envisioned by Rule 26. See Defendant's Brief at 18-19 n. 8 (filing 104). It appears to me, however, that this supplemental report explains the misunderstanding that led Dr. Wass to form the opinion found in ¶ 1(i) of his original report, and, as a result, alters this opinion. Thus, I see no need to strike the supplement.
As the defendant notes in its brief, the speculative nature of Dr. Wass' opinion is further demonstrated by his deposition testimony, in which Dr. Wass again limited his opinion to the "possibility" of a connection between the Farmland ration and the alleged incidences of acute hypomagnesemia:
And apparently the cows developed acute hypomagnesemia, and I'm sure they had hypocalcemia at the time. We talked a little bit about that disease, and I think there was an initial tendency to think, well, that's something else and this problem may not be related to the Farmland ration, but the more I thought about it, I began to believe possibly it is.
Filing 105, Ex. B at 23:18-25.
IT IS ORDERED that:
the Defendant Farmland Industries, Inc.'s Motion to Exclude or, in the Alternative, to Limit the Testimony of Plaintiff's Purported Expert, Brad Wagner, filing 94, is granted;
the Defendant Farmland Industries, Inc.'s Motion to Limit the Testimony of Plaintiff's Purported Expert, Cecelia Dorn, filing 96, is denied;
the Defendant Farmland Industries, Inc.'s Motion to Exclude or, in the Alternative, to Limit the Testimony of Plaintiff's Purported Expert, Randall Schawang, filing 98, is denied;
4. the Defendant Farmland Industries, Inc.'s Motion to Exclude or, in the Alternative, to Limit the Testimony of Plaintiff's Purported Expert, Randall Pedersen, filing 100, is granted in part and denied in part; Dr. Pedersen will not be permitted to testify as to his opinion that the alleged nutritional imbalances in the plaintiff's herd were caused by the Farmland rations;
5. the Defendant Farmland Industries, Inc.'s Motion to Exclude or, in the Alternative, to Limit the Testimony of Plaintiff's Purported Expert, Doug Weich, filing 102, is denied;
6. the Defendant Farmland Industries, Inc.'s Motion to Limit the Testimony of Plaintiff's Purported Expert, Wallace Wass, filing 104, is granted in part and denied in part; Dr. Wass will not be permitted to testify to his opinion that the inclusion of bakery products, in and of itself, rendered the Farmland rations inappropriate, or to his opinion appearing in paragraph 1(i) of his report of December 2000 (otherwise undated).
BY THE COURT