Summary of a Recent
Judicial Development in
Commercial Transactions

Insufficient Proof of Cause of High Mortality
and Illness in Veal Calves

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Dandy Veal, LLC v. Midwest Milk Products, Inc., No. 2007AP1791, 2009 WL 1378435 (Wis. Ct. App. May 19, 2009), the Wisconsin Court of Appeals held that a veal producer had failed to prove with adequate certainty that the defendant's liquid fat blend used in the producer's veal feed was the actual cause of illness and high death rates in its calves.

Background and Arguments

Dandy Veal, LLC (Dandy) brought this action for breach of implied warranty against Midwest Milk Products, Inc. (Midwest), alleging that Midwest's liquid fat blend used in Dandy's veal feed caused an emulsion stability problem in the feed, resulting in illness and high death rates in Dandy's calves. Id. at *1. Midwest counterclaimed for unpaid invoices. Id. The circuit court concluded that Dandy had failed to prove with sufficient certainty that Midwest's product caused the emulsion stability problem in the feed, and Dandy appealed. Id. at *2.

Analysis and Holdings

Emulsification is the process by which the fat in cow's milk is blended with a water solution containing proteins and carbohydrates to ensure digestibility of the fat. See id. at *1. In the emulsification process, fat particles are basically broken apart and mixed with protein products to form a liquid fat blend used in a milk replacer that calves will drink, and "[e]mulsification can be disrupted in many ways, including through damaged protein, bacteria, high mineral content or the presence of ammonias or bases." Id.

After considering expert testimony and other credible evidence, the circuit court had found that Dandy failed to prove with requisite certainty that Midwest's fat product caused the emulsion stability problems in the feed. Id. at *1-2. The appellate court affirmed, reasoning that Dandy had failed to prove that "any of the other fat bearing ingredients, even those having trace amounts, could not have caused the emulsion instability problems." Id. at *4. Dandy had failed to retain any samples of its ingredients, and there was other evidence that the problem could have been caused by other sources; for example, the court noted that Dandy had received "numerous loads of whey . . . during the relevant time periods with high temperatures and/or pH levels outside specifications," and there were also quality control issues with Dandy's chocolate, buttermilk and condensed whey. Id. at *5. In addition, Midwest retested the fat blend returned by Dandy and put it back into production, including use in its own feed, with no problems or complaints. Id. Therefore, the appellate court affirmed that Dandy had failed to prove that Midwest's fat caused the emulsion stability problems. Id. at *6.

The case was decided on May 19, 2009.