Summary of a Recent
Judicial Development in
Commercial Transactions

Court Allows Expert Testimony on Stray Voltage and
Its Effect on Dairy Production

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Winner Brothers, LLC v. Seitz Electric, Inc., --- N.E.2d ---, 2009 WL 1387123, 2009-Ohio-2316U (Ohio Ct. App. 2009), the Ohio Court of Appeals, Second District held that the district court had erred in excluding the plaintiff dairy farm's expert testimony regarding the negative effects of stray voltage on the plaintiff's dairy cattle, and concluded that genuine issues of material fact precluded summary judgment.

Background

The plaintiff dairy farm brought this action for breach of contract and negligence against an electrical contractor that installed wiring in the plaintiff's dairy barns, alleging that stray voltage in the barns caused a reduction in milk production. Id. at *1. The trial court granted the contractor's motion in limine to preclude the plaintiff's expert testimony linking stray voltage to lost milk production, holding that the expert's opinions "were not based on objectively verifiable or widely accepted scientific principles." Id. at *3-5. However, the court allowed the contractor's expert testimony, over the plaintiff's objections, and subsequently granted summary judgment for the contractor. Id. at *5. The plaintiff appealed. Id.

Arguments

The plaintiff argued that there were genuine issues of material fact regarding its breach of contract claim that precluded summary judgment, and that the trial court erred in excluding its expert testimony while allowing the defendant's expert to testify based solely on scientific studies. Id. at *1. The plaintiff argued that the defendant's expert was not qualified to render an opinion because he "had no direct knowledge or expertise about inappropriate levels of stray voltage and its affect on cows. Instead, [he] simply 'surfed' the Internet and read articles to formulate his opinion." Id. at *14.

Analysis and Holdings

The appellate court concluded that the trial court erred in limiting the testimony of the plaintiff's expert because there was a "legitimate disagreement about the scientific theory involved in the case," and therefore the trial court should not have given preclusive effect to certain scientific studies and excluded the plaintiff's expert testimony. Id. at *1, *7-12. The court further found that the plaintiff's expert testimony, which should have been admitted, established genuine issues of material fact regarding the plaintiff's breach of contract claim, so summary judgment was inappropriate. Id. at *13.

The court also held that the defendant's expert was not qualified to give an opinion on stray voltage; the court explained that

[b]ecause works of professional literature contain statements that if introduced as evidence would fall within the definition of hearsay, and because the Ohio Rules of Evidence, unlike the Federal Rules of Evidence, do not contain a learned-treatise exception to the hearsay rule, such works "are inadmissible as independent evidence of the theories and opinions therein expressed."
Id. at *14.

In other words, because the defendant's expert had no direct knowledge of the subject matter and had instead based his opinion solely on scientific literature, he should not have been allowed to give an expert opinion on the issue of stray voltage. Id. Therefore, the appellate court sustained all of the plaintiff's assignments of error and reversed and remanded the case for further proceedings. Id. at *16.

The case was decided on May 15, 2009.