COURT OF APPEALS DECISION DATED AND RELEASED JULY
25, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-2547
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT III
GORDON
SENN,
Plaintiff-Respondent,
v.
BUFFALO
ELECTRIC
COOPERATIVE
and
FEDERATED
RURAL
ELECTRIC
INSURANCE
CORPORATION,
Defendants-Appellants.
APPEAL
from a judgment of the circuit court for Buffalo County: DANE F. MOREY, Judge. Affirmed.
Before
Cane, P.J., LaRocque and Myse, JJ.
PER
CURIAM. Buffalo Electric Cooperative
and Federated Rural Electric Insurance Corporation (the cooperative) appeal a
judgment awarding Gordon Senn $79,029 damages[1]
for losses he sustained due to "stray voltage"[2]
at his dairy farm. Following a
twelve-day jury trial, the jury returned a verdict finding the cooperative
negligent and that stray voltage from the cooperative was a substantial factor
in causing Senn's damages.
Three
issues are presented, namely, whether: (1) the evidence is sufficient to
support the jury's finding of negligence and causation; (2) the trial court
should have excluded Senn's expert's testimony because it was based upon
unreliable data; and (3) a new trial is required due to trial court
errors.[3] Because credible evidence supports the
verdict and under the "general relevancy" test the trial court
properly admitted the expert testimony, we reject the cooperative's
challenges. We affirm the judgment.
FACTS
We set forth facts of record supporting the
verdict. Fehring v. Republic Ins.
Co., 118 Wis.2d 299, 305-06, 347 N.W.2d 595, 598 (1984). Senn's expert witness, Gerald Bodman, is an
agricultural engineer, a professor at the University of Nebraska Department of
Biological Systems Engineering and works as a consultant with farmers. There is no dispute that Bodman is a
qualified expert. Bodman testified
generally regarding the various factors affecting milk production, including
genetics, housing, feed, veterinary practices, milking procedures and stray
voltage. He testified that by
eliminating each factor as a cause for unsatisfactory milk production, he can
determine the cause of the problem. He
testified that for most cows, one-half volt will cause a response and that cows
receiving shocks when eating or drinking will reduce intake resulting in
lowered milk production.
Bodman's
evaluation of Senn's farm revealed that the cooperative contributed extraneous
voltage of about .56 volts. Based on
his own testing, Bodman concluded that the cooperative's primary distribution
system contributed voltage at a level that would cause harm to the health and
production of the cows. Bodman's tests
showed that excessive voltage drop on the primary neutral system as a result of
on-farm loads caused the elevated voltage.[4] He further testified that "the
resistance of the total primary neutral return system was too high." He further concluded that "the
grounding was not adequate for the particular situation to prevent the harmful
voltages and currents from showing up in the Senn barn." Bodman later learned that after the farm was
isolated in September 1992, production did not improve as he had anticipated.[5]
Both
before and after the farm was isolated, the cows exhibited low milk production,
restlessness, abnormal tail twitching, poor milk out and reproductive
problems. Charles Krueger, an
artificial insemination technician for 21st Century Genetics, testified that
neither genetics, management nor feed were the cause of Senn's cows'
reproductive problems. Several
witnesses testified that Senn's farming practices were above average and that
factors such as nutrition, housing, genetics and milking practices did not
account for the problems he was having with his herd.
Because
the cows' production did not improve after the farm was isolated, Senn had
additional testing done by Donald Woychik, an electrician. The trial court qualified Woychik as a lay
expert and permitted him to testify to his observations based upon his testing,
but not draw scientific conclusions.[6] Woychik obtained readings of eight milliamps
and twenty milliamps in cow contact areas with a resistor. "So then we shut the farm down by
opening the main disconnect at the top of the post. ... It made no difference."
Bodman
reviewed Woychik's measurements on the eve of trial and concluded that current
was accessing the cows in two ways: one
path was through the neutral system which Bodman had documented through his own
testing; the other was through ground currents as documented by Woychik.[7] Bodman testified that he was familiar with
the techniques that Woychik uses to measure voltage and current and that they
were satisfactory from an engineering point of view.[8] Bodman testified that based on all the
information, including Woychik's testing, to a reasonable degree of
probability, the source of the problematic currents was the cooperative's
primary neutral system.
At Woychik's suggestion, Senn eventually
relocated his dairy herd to a new farm.
He testified that he made no significant changes with respect to
nutrition, housing, genetics and milking procedures, but milk production
greatly increased.
SUFFICIENCY OF THE
EVIDENCE
The
cooperative argues that insufficient evidence supports the jury's findings of
negligence and causation. We are
unpersuaded.
[A] jury verdict ... will be sustained if there is any
credible evidence to support the verdict. ...
The credibility of the witnesses and the weight afforded their
individual testimony is left to the province of the jury. Where more than one reasonable inference may
be drawn from the evidence adduced at trial, this court must accept the inference that was drawn by the jury.
Fehring, 118 Wis.2d at 305-06, 347 N.W.2d at 598. We review the record for credible evidence to sustain the jury's
verdict, not to search for evidence to sustain a verdict the jury could have
reached, but did not. Id.
at 306, 347 N.W.2d at 598.
The
cooperative argues that the evidence is insufficient because Bodman did not
testify that the ground currents were caused by the cooperative. The record discloses otherwise. Bodman testified that the problematic
currents accessing the cows after isolation emanated from the cooperative's
primary neutral system.
Q.Based on all of this then, and the testing that Mr. Woychik did,
you indicated you came to the conclusion there were problematic levels of
current still accessing the cows, were you able to come to an opinion to a
reasonable degree of probability as to the source of those problematic
currents?
A.Yes. ... They are emanating from the primary neutral
system.
The
cooperative argues that its expert, engineer Matt Schwarz, testified that
Woychik's testing could not identify the source of the ground currents. The cooperative argues that because (a) the
source of the ground currents could not be identified, and (b) it was not shown
that the ground currents exceed an ordinary and reasonable standard for
distribution of electric power, insufficient evidence supports the
verdict. The cooperative contends that
because isolation of the farm did not result in improved production, the
cooperative's stray voltage could not have caused the harm.
The
cooperative's argument fails for two reasons.
First, because Bodman's and Schwarz's testimonies conflict, the argument
is essentially one of weight and credibility, an issue that is in the exclusive
province of the jury. Id.
at 305, 347 N.W.2d at 598. The
determination of credibility is not within the scope of appellate review. Day v. State, 92 Wis.2d 392,
400, 284 N.W.2d 666, 670-71 (1979).
Second,
the cooperative's argument fails because it is based upon the faulty premise
that there must be only one cause of harm.
In order to reach its verdict, the jury is not required to find that the
cooperative's negligence is the "only" cause. Under Wisconsin's "substantial factor"
test, Senn need only demonstrate that the utility was negligent and that its
negligence was a substantial factor in producing the harm. See Sampson v. Laskin,
66 Wis.2d 318, 325-26, 224 N.W.2d 594, 597-98 (1975). "[T]here may be several substantial factors contributing to
the same result. The contribution of
these factors under our comparative negligence doctrine are all considered and
determined in terms of percentages of total cause." Id. at 325-26, 224 N.W.2d at
598 (footnote omitted).[9]
Bodman
testified that his tests, along with Woychik's, showed that there were two
paths by which excess voltage reached the cows: (1) the stray voltage produced by the utility's inadequate
grounding, and (2) ground currents.
Based on this record, the jury could infer that both paths of current
would need to be eliminated in order for production to improve. Even if the source and level of the ground
currents were unknown, Bodman's tests
support the jury's finding that the cooperative's inadequate grounding resulted
in excessive stray voltage at levels sufficient to be a cause of the lowered
milk production.
The
cooperative also argues that Senn produced no testimony as to the level of
grounding necessary to eliminate the excessive voltage and that Bodman's
testimony that grounding was inadequate was therefore speculative. We disagree. Bodman testified that inadequate grounding was a substantial
factor in producing stray voltage.
Whether Bodman's testimony was to be believed is a weight and
credibility issue for the jury. The
jury was not required to speculate.
Because the cooperative has not demonstrated that Bodman's testimony is
inherently incredible, we cannot rule that it is incredible as a matter of
law. See Chapman v. State,
69 Wis.2d 581, 583, 230 N.W.2d 824, 825 (1975) (Incredible as a matter of law
means inherently incredible, such as in conflict with the uniform course of
nature or with fully established or conceded facts).
EXPERT
TESTIMONY
Next,
the cooperative argues that the trial court should have excluded Bodman's
testimony because it was based upon Woychik's unreliable testing and therefore
lacked foundation. The cooperative does
not dispute that the evidence is relevant, that the witness was a qualified
expert and that scientific or technical evidence would assist the trier of fact
in determining an issue of fact. See
State v. Walstad, 119 Wis.2d 483, 518-19, 351 N.W.2d 469, 487
(1984).
The
cooperative's attack on Woychik's testing is two-pronged: (1) it challenges the underlying scientific
principles as unestablished, and (2) it challenges Woychik's technique and method
of conducting the tests. It argues that
without the trial court's threshold determination of reliability of both the
scientific principles as well as the specific technique Woychik employed, his
test results are not admissible. It
contends that absent Woychik's tests, Bodman's testimony must be stricken
because his opinion relied upon data not shown to be of a type reasonably
relied upon by experts in his field. We
disagree.
The
trial court's decision to admit or exclude expert opinion testimony is
discretionary and we do not reverse if the decision has a reasonable basis made
in accordance with accepted legal standards and facts of record. State v. Blair, 164 Wis.2d 64,
74, 473 N.W.2d 566, 571 (Ct. App. 1991).
Scientific evidence is admissible if:
(1) it is relevant; (2) the witness is qualified as an expert; and
(3) the evidence will assist the trier of fact in determining an issue of
fact. Walstad, 119 Wis.2d
at 516, 351 N.W.2d at 485-86.[10] "Once the relevancy of the evidence is
established and the witness is qualified as an expert, the reliability of the
evidence is a weight and credibility issue for the fact finder and any
reliability challenges must be made through cross-examination or by other means
of impeachment." State v.
Peters, No. 94-1094-CR, slip op. at 11 (Wis. Ct. App. Mar. 21, 1995,
ordered published Apr. 25, 1995).
The
basis of an expert's opinion may be one or more of the following: (1) firsthand
observations made by the expert, (2) evidence presented at trial, and
(3) data presented to the expert outside of trial. Section 907.03, Stats.[11] Opinion evidence may be based upon hearsay
if "of a type reasonably relied upon by experts" in the field. Id. An expert may testify to an opinion with prior disclosure of
underlying data. Section 907.05, Stats.[12]
Under
Walstad, the trial court is not required to determine the
reliability of the data underlying an expert's opinion. Id. at 518-19, 351 N.W.2d at
487. Here, there is no dispute that
Bodman was qualified to render an expert opinion, that his opinion was relevant
and would assist the jury in determining an ultimate fact. Our deferential standard of review requires
that we look to the record for reasons to sustain the trial court's
discretionary determination. State
v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498, 501 (1983). Bodman testified that he was familiar with
Woychik's testing methods and that they were satisfactory from an engineering
standpoint. In addition, Woychik
testified at trial and was subject to vigorous cross-examination. Because Bodman's opinion was based upon data
presented to the jury through Woychik's testimony, Bodman's underlying facts
and data need not to have been shown to be reasonably relied upon by other
experts in the field. See
§ 907.03, Stats. Because the reliability of Woychik's tests
is a weight and credibility issue, Peters, slip op. at 11, we
conclude that the trial court properly admitted his testimony as well as Bodman's
opinions under Wisconsin's general relevancy approach.
The
cooperative argues, however, that we should establish a rule excluding expert
testimony based on tests not reasonably relied upon in the field of
expertise. Relying on Daubert v.
Merrell Dow Pharmaceuticals, ___ U.S. ___, 113 S.Ct. 2786, 2795 (1993),
and a concurring footnote in State v. Blair, 164 Wis.2d 64, 78
n.9, 473 N.W.2d 566, 572 n.9 (Ct. App. 1991), the cooperative contends that the
trial court should assess the reliability of the expert's underlying data.[13]
Peters has rejected this argument. To the extent this argument seeks to overturn Peters,
it is, of course, more properly directed to the supreme court. See State v. Schumacher,
144 Wis.2d 388, 404-05, 424 N.W.2d 672, 678 (1988) (supreme court is
responsible for overseeing the statewide development and implementation of the
law). The Court of Appeals is an
error-correcting, not rule-making court.
See State v. Lossman, 118 Wis.2d 526, 533, 348
N.W.2d 159, 163 (1984).
The
cooperative also challenges the foundation for Bodman's testimony in other
respects. It argues that because
Woychik took one set of readings with a resistor and another set of readings
without a resistor, Bodman's testimony is without foundation. We disagree. Bodman testified that he relied on his own tests as well as
Woychik's. Bodman testified that he was
familiar with Woychik's methods and that they were satisfactory. This argument essentially attacks the weight
and credibility of Bodman's opinion, an issue not within the scope of appellate
review. Day, 92 Wis.2d at
400, 284 N.W.2d at 670-71.
The
cooperative also objects that Bodman based his opinion on certain assumptions
regarding the nutrition and genetic potential of the herd, but that the
testimony to support his assumptions was not produced. For example, the cooperative contends that
Senn stated that the veterinarian's later testimony would be that nutrition did
not impose a cap on production but that the veterinarian did not so testify.
We
are unpersuaded. Whether the veterinarian's
testimony did not support Bodman's opinion is not prejudicial on this
record. Several witnesses testified
with respect to feed and nutrition, genetic make-up, as well as housing milking
procedures and farm management. The
record is sufficient to establish adequate foundation.
MOTION FOR A
NEW TRIAL
Finally,
the cooperative argues that the trial court erroneously denied its motion for a
new trial. The cooperative argues that
the following trial court errors entitled it to a new trial pursuant to §
805.15(1), Stats.: (1) there was
insufficient foundation to admit testimony concerning the ground currents;
(2) Bodman's assumptions regarding nutrition were insufficient to support
his testimony; (3) no veterinarian testified that voltage was the cause of
reduced milk production; and (4) Senn's veterinarian erroneously assumed that
somatic cell count dropped during test isolation.
A
motion for a new trial under § 805.15, Stats.,
is addressed to trial court discretion.
Sievert v. American Fam. Mut. Ins. Co., 180 Wis.2d 426,
431, 509 N.W.2d 75, 78 (Ct. App. 1993), aff'd, 190 Wis.2d 623, 528
N.W.2d 413 (1995). As we concluded, the
expert testimony was properly admitted and supported the verdict. Although Bodman and the veterinarian did not
analyze feed, other witnesses testified that feed was adequate. Bodman testified as to the relationship
between harmful stray voltage and reduced milk production. We also conclude that the veterinarian's
assumptions regarding somatic cell count are not prejudicial on this
record. The record sufficiently
supports the verdict. We conclude that
the record supports the trial court's discretionary decision to deny the
cooperative's motion for a new trial.
By
the Court.—Judgment affirmed.
This
opinion will not be published. Rule 809.23(1)(b)5, Stats.
[1] The total damages were assessed by the jury in the
amount of $131,700. The jury attributed
60% of the negligence to the Cooperative and 40% to Senn.
[2] Kolpin v.
Pioneer Power & Light Co., 162 Wis.2d 1, 10, 469 N.W.2d 595, 598
(1991), described "stray voltage" as neutral to earth voltage, a
natural phenomenon present in all active distribution systems, that can come
from a variety of sources both on and off the farm. In unreasonably high amounts flowing along paths that conduct
electricity such as metal and water, it becomes harmful.
[3] The cooperative
makes six arguments, but because of overlap, we organize our discussion into
three issues.
As the on-farm loads or on-farm energy use increased, having a greater
demand for current from the primary system, the voltages increase. That is what we call an off-farm voltage,
that current going through the neutral develops a voltage drop because of more
on-farm loads. So it's off-farm voltage
due to on-farm loads, normal use of electricity.
[5] Bodman
testified: "When we isolate the
neutral, it simply means we have broken, we have taken apart all connections
between the primary and secondary neutral system." When connected, "voltage present at
this location on the primary will be reflected at this point on the
secondary." The purpose of isolation is to eliminate the cooperative's
stray voltage.
[6] Woychik
testified that he has been a dairy farmer and electrician for 35 years. He had been appointed by the Secretary of
Agriculture to serve on the first State of Wisconsin Task Force on stray
voltage involving farm animals. He
attended seminars and was a co-presenter of a stray voltage clinic for farmers
along with a representative from Northern States Power Company in La
Crosse. His first investigation regarding
stray farm voltage was in 1985. He has
been involved in evaluation for stray voltage and other production concerns on
more than 200 farms. He has worked with
several creameries, including Land O' Lakes, Mid-American Dairies, Associated
Milk Producers, Valley Queen and Wisconsin Dairies, to evaluate farm production
problems. He has "worked many
times with Dr. Bodman."
[7] Woychik
described one of his methods: After the
farm was isolated he later installed two ground rods in the barn in each feed
manger where the cows eat on one side of the barn. Then,
we drilled a hole through the concrete on a row of cows
opposite, which would be about 16 feet apart.
... [W]e took eight foot ground rods and we put them through the
concrete about two feet, so there was about six feet sticking in the air. Then we hooked the wire from each ground rod
to the meter and we measured the current flow from one ground rod to the other
ground rod. [W]e were getting current
readings and our question was where are they coming from?
He testified: "If you do
have a reading, why is it there when there's no power on the farm? That was the main purpose of my
testing."
[8] Bodman testified
that he had not tested for ground currents because "with the significance
of the changes when we separated the neutrals, I left feeling that I had found
the solution, when in fact I had found only part of it."
[9] The jury was
instructed that the verdict's cause questions do not ask about "the
cause," but rather "a cause," and
[t]he reason for this is that there may be more than one
cause of economic damage. The
negligence of one person may cause economic damage or the combined negligence
of two or more persons may cause it.
Before you find that a party's negligence was a cause of economic
damage, you must find that the negligence was a substantial factor in producing
the economic damage.
See Wis J I—Civil 1500, 1580. The record discloses that the cooperative
did not preserve for review an objection to these instructions or the form of
the verdict.
[10] "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." Section 907.02, Stats.
[11] Section 907.03, Stats., provides:
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. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence.
[12] Section 907.05, Stats., provides: "The expert may testify in terms of
opinion or inference and give the reasons therefor without prior disclosure of
the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to
disclose the underlying facts or data on cross-examination."
[13] Objections to
Wisconsin's general relevancy test have been articulated in the past. See Craig A. Kubiak, Comment, Scientific
Evidence in Wisconsin: Using Reliability to Regulate Expert Testimony, 74 Marq. L. Rev. 261 (1991); Daniel
Blinka, Scientific Evidence in Wisconsin after Daubert, 66 Wis. Law. 10 (Nov. 1993); see also
State v. Peters, No. 94-1094-CR (Wis. Ct. App. Mar. 21, 1995,
ordered published Apr. 25, 1995).