Summary of a Recent
Judicial Development in
Animal Feeding Operations

Whistleblower Claim Can Be Decided at Trial
If It Is Introduced by Either Party

Kaycee Wolf
National AgLaw Center Research Associate

Summary of Decision

In Shuler v. Premium Standard Farms, Inc., 148 S.W.3d 1 (Mo. Ct. App. 2004), the Missouri Court of Appeals reversed the trial court's directed verdict in favor of Premium Standard Farms (Premium) and against Shuler on his claim of wrongful discharge.

Background

Premium employed Shuler from July 25, 2004 until his discharge on March 30, 2000. Id. at 2. Premium owned a confined animal feeding operation (CAFO) which necessitated the disposal of large quantities of animal waste (effluent). Id. Shuler worked for Premium as a supervisor for land applications that allow limited quantities of animal wastes to be applied to farmland as fertilizer. Id. In March 2000, Premium planned to apply effluent at Horman Farms on a field recently fertilized with anhydrous ammonia. Id. at 3. By law, a soil sample must be taken from the field to prevent the over application of fertilizers and subsequent pollution of the water table. Id. Shuler was instructed by Snapp to obtain a soil sample from a field that had not been treated with anhydrous ammonia and falsely report that the sample came from the field where the effluent was to be applied. Id.

Before attending a supervisor's meeting, Shuler told his crew not to apply the effluent to the field until they had received a work order to do so. Id. At the supervisors' meeting, Shuler reported to Snapp's supervisor, Brock, about the instructions he received to falsify soil sampling results. Id. Shuler then returned to find that his crew was applying effluent to the field without a work order. Id. Brock subsequently terminated Shuler for failing to follow company policy by allowing his work crew to apply effluent without a work order. Id. at 4. Shuler argued that Premium provided a false reason for his termination because he was terminated in retaliation for reporting the instructions to falsify soil sampling results. Id. The jury returned a verdict of in favor of Shuler for the service letter claim, but was deadlocked on the wrongful discharge claim. Id. The court declared a mistrial on the wrongful discharge claim, and Premium renewed its motion for a directed verdict. Id. The trial court granted Premium's motion for a directed verdict. Id.

Arguments

Shuler argued that the trial court prejudicially erred in refusing to instruct the jury regarding the whistleblower theory of wrongful discharge and the punitive damages claim because he made a submissible case that the was wrongfully discharged. Id. at 5.

Analysis and Holdings

The court held that Shuler could still proceed on that theory at trial if a submissible case was made, even though he failed to plead the whistleblower exception in count II of his wrongful discharge claim. Id. at 6. Once an issue that is not raised by the pleadings is raised at trial by express or implied consent of the parties it is treated as if it had been raised in the pleadings. Id. The court reasoned that the evidence at trial was clear that Shular presented his wrongful discharge claim based on the whistleblower public policy exception, and Premium did not raise an objection even though it brought up an additional claim not referenced in the petition. Id. Premium's failure to object and presentation of rebuttal witnesses constituted consent for determination of the new issue. Id.

The case was decided on April 13, 2004.