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Poppler v. Wright Hennepin Cooperative Electric Association

Court of Appeals of Minnesota

July 19, 2013

Harlan Poppler, et al., Respondents,
v.
Wright Hennepin Cooperative Electric Association, Appellant.

Wright County District Court File No. 86-CV-10-7728

B.J. Hammarback, David L. Sienko, Hammarback Law Offices, S.C., River Falls, Wisconsin (for respondents)

Scott V. Kelly, Daniel J. Bellig, Farrish Johnson Law Office, Chtd., Mankato, Minnesota (for appellant)

Timothy R. Thornton, Jonathan P. Schmidt, Tara Reese Duginske, Briggs and Morgan, P.A., Minneapolis, Minnesota (for amicus curiae Northern States Power Company)

Considered and decided by Hudson, Presiding Judge; Johnson, Chief Judge; and Willis, Judge. [*]

SYLLABUS

1. A district court does not have authority under rule 49 or rule 52 of the Minnesota Rules of Civil Procedure to make additional findings on an issue that was submitted to the jury and on which the jury returned a verdict if the additional findings are unnecessary to enter a judgment.

2. A plaintiff seeking damages for lost profits must prove the existence and amount of the plaintiff's decrease in revenues as well as the existence or non-existence and amount of any offsetting decrease in the plaintiff's expenses. A plaintiff seeking damages for a dairy farm's losses due to stray voltage is not entitled to damages solely upon proof of "milk loss" (i.e., decreased revenues due to decreased milk production) without any evidence of the existence or non-existence and amount of any offsetting decrease in the plaintiff's expenses.

3. If a party does not object on the record to a jury instruction pursuant to rules 51.03 and 51.04 of the Minnesota Rules of Civil Procedure, this court may review the party's challenge to the jury instruction only for plain error.

4. The presence of stray electrical voltage does not give rise to a cause of action for trespass.

OPINION

JOHNSON, Chief Judge

Harlan Poppler, Jennifer Poppler, and Roy Marschall (hereinafter the Popplers) operate a dairy farm. The Wright Hennepin Cooperative Electric Association provides electricity to the dairy farm. The Popplers sued Wright Hennepin, alleging that stray electrical voltage injured their herd of dairy cows, thereby causing a decrease in the cows' production of milk. A Wright County jury found Wright Hennepin liable and awarded the Popplers $753, 200 in damages. After the district court's rulings on the parties' various post-trial motions, the district court remitted the damages award to $715, 200. Wright Hennepin appealed, and the Popplers filed a cross-appeal. The parties' appellate briefs raise a number of issues, both procedural and substantive. For the reasons stated below, we affirm in part, reverse in part, and remand for a new trial on the issue of damages.

FACTS

A. The Parties

The Popplers are experienced dairy farmers. Harlan Poppler grew up on a dairy farm in Carver County and began working on the dairy operation as a child. He married Jennifer Poppler (nee Marschall) in 2001, at which time he moved a herd of his dairy cows to a dairy farm in Scott County owned by her father, Roy Marschall. In 2003, the Popplers moved their collective herd to a dairy farm in Wright County. Since then, the Popplers have managed a successful dairy farm with a herd of approximately 200 cows.

The Wright Hennepin Cooperative Electric Association is an electric utility headquartered in the city of Rockford. Wright Hennepin provides electricity to the Popplers' dairy farm.

In late 2007 and early 2008, the Popplers noticed a decrease in their dairy herd's milk production and an increase in problems related to the health of the herd. Harlan Poppler was concerned and tried to determine the cause. He enlisted the help of assistant herdsman Nathan Emery, veterinarian Shayne Marker, nutritionist Barry Visser, and artificial-insemination technician Kenny Bangasser, as well as Roy Marschall and Jennifer Poppler. Harlan Poppler testified that he and his team were able to rule out issues related to diet, water quality, overcrowding, herd management, and milking equipment. At some point, Harlan Poppler began to consider stray electrical voltage as a possible cause of the problems.

B. Stray Voltage

The supreme court has described stray voltage as "a phenomenon in which an electrical current—voltage that returns to the ground after powering an appliance—passes through an object not intended as a conductor." Siewert v. Northern States Power Co., 793 N.W.2d 272, 276 (Minn. 2011). This description comports with the parties' general understanding of stray voltage, which also may be referred to as stray electricity or stray current. Other courts have expanded on the phenomenon of stray voltage and its potential to affect cows as follows:

All electricity leaving an electrical substation must return to that substation in order to complete a circuit. Unless that circuit is completed, electricity will not flow. The current leaves the substation on a high voltage line which eventually connects to some electrical appliance. After exiting the appliance that current must return to the substation. The neutral-grounded network provides the returning current two choices. Either it can return via the neutral line, which accounts for the second wire on our electrical poles, or it can return through the ground. These two pathways comprise the grounded-neutral network. Electricity flows through the path of lowest resistance. If there exists more resistance in the neutral line than in the ground, the current will flow through the ground to return to the substation. Neutral-to-earth voltage or stray voltage will occur when current moves from either the neutral line to the ground or from the ground to the neutral line. It uses a cow as a pathway if that animal happens to bridge the gap between the two. A cow's hooves provide an excellent contact to the earth while standing on wet concrete or mud, while at the same time the cow is contacting the grounded-neutral system consisting of items such as metal stanchions, stalls, feeders, milkers, and waterers. The current simply uses the cow as a pathway in its eventual return to the substation.

Kaech v. Lewis Cnty. Pub. Util. Dist. No. 1, 23 P.3d 529, 533 n.3 (Wash. App. 2001) (quoting Schlader v. Interstate Power Co., 591 N.W.2d 10, 12 (Iowa 1999) (quoting Larson v. Williams Elec. Coop., Inc., 534 N.W.2d 1, 1-2 n.1 (N.D. 1995))), review denied (Wash. Jan. 10, 2002).

The parties to this case agree that the amount of electrical current to which dairy cows are exposed is relevant to the cow's health. The amount of electrical current is measured in terms of amperes and is determined by a formula known as Ohm's Law, which provides that current is equal to the amount of voltage divided by the amount of resistance of the material through which the current is conducted. Voltage is measured in terms of volts, and resistance is measured in terms of ohms.

The parties disagree about the amount of electrical current that is necessary to cause an adverse effect on the health of a dairy cow. The Popplers contend that dairy cows may be adversely affected by electrical current levels as low as 1 milliampere. Meanwhile, Wright Hennepin contends that dairy cows are not adversely affected unless and until electrical current levels reach 4 milliamperes.

The parties also disagree about the amount of electrical current to which the Popplers' dairy cows actually were exposed and how the amount of current should be calculated. Determining the amount of current flowing through a dairy cow's body requires information about the amount of resistance in a dairy cow's body. Resistance is an important variable in the calculation because it can alter the resulting measurement of current. For example, if voltage is 0.5 volts and resistance is 500 ohms, the current is 1 milliampere. But if voltage is the same and resistance is only 200 ohms, the current is 2.5 milliamperes.

C. Relevant Events

At the suggestion of another dairy farmer who claimed to have experience with stray voltage, Harlan Poppler observed his dairy cows' drinking behavior. During the winter of 2007-2008, he noticed that his cows were behaving abnormally because they were "bobbing in and out of the water" and "licking at the water" rather than drinking it. Because this behavior was consistent with the presence of stray voltage, Harlan Poppler contacted Wright Hennepin and requested that it check for stray voltage.

In 2008, Wright Hennepin performed testing on the Popplers' farm to assess the report of a possible stray-voltage problem. Wright Hennepin determined that the Popplers did not have a stray-voltage problem or that, if there was a stray-voltage problem, it was a result of defective electrical wiring in buildings on the Popplers' dairy farm rather than a defect in Wright Hennepin's power-transmission lines. In light of this conclusion, the Popplers hired an electrician, Kyle Osmek, to rewire the buildings used in the dairy operation. But the rewiring did not resolve the herd's health problems, and the herd continued to exhibit abnormal behavior.

In 2009, the Popplers retained John Ritchie, a stray-voltage consultant, to perform electrical testing on the dairy farm. Ritchie recommended that the Popplers upgrade the electrical system "so that the returning earth current from the primary neutral [line] doesn't pass through [the] dairy facility on its way back to the prospective substation." Ritchie's recommendation required both the Popplers and Wright Hennepin to take steps to upgrade the system. Specifically, the Popplers needed Wright Hennepin's cooperation in installing and servicing a three-phase power-transmission line, which would, according to Ritchie's recommendations, result in reduced levels of stray voltage. In July 2009, the Popplers completed their part of the upgrade by performing additional rewiring on the dairy farm, in accordance with Ritchie's recommendations. Wright Hennepin agreed to install the three-phase line with the understanding that the Popplers would contribute to its cost. Wright Hennepin did not complete the installation of the three-phase line before trial.

At approximately the same time that the Popplers completed their rewiring, Wright Hennepin hired another consultant to perform electrical testing on the farm. Wright Hennepin's consultant did not find stray voltage but told the Popplers that he also had noticed abnormal drinking behavior and that he was concerned that the neutral line serving the Popplers' farm was too small to serve a dairy farm of the Popplers' size.

Also in July 2009, in accordance with the recommendation of the Popplers' consultant, Wright Hennepin agreed to install isolation transformers, which isolate the farm's neutral line from the primary neutral line. Wright Hennepin also disconnected four grounding rods near the dairy farm, which Harlan Poppler thought were carrying too much current from Wright Hennepin's power line. After these changes were made, the Popplers experienced an increase in milk production and an improvement in herd health.

In January 2011, however, to ensure compliance with applicable codes, Wright Hennepin re-connected three of the four grounding rods that previously had been disconnected and installed another grounding rod. Thereafter the Popplers again experienced herd health problems.

D. Procedural History

In December 2010, the Popplers commenced this action against Wright Hennepin. The Popplers' complaint alleged claims of negligence, nuisance, res ipsa loquitur, negligence per se, strict product liability, and trespass. In April 2011, Wright Hennepin moved to dismiss the Popplers' claims of negligence per se, strict product liability, and trespass. The district court granted the motion with respect to the first two of these claims but denied the motion with respect to the trespass claim.

In October 2011, five months before trial, Wright Hennepin moved in limine to exclude the Popplers' expert evidence concerning causation on the grounds that the experts were not qualified and that the testing performed by the Popplers' experts was insufficient to establish causation. Wright Hennepin also moved in limine to exclude the Popplers' expert evidence related to animal sensitivity to stray voltage or, in the alternative, for a Frye-Mack hearing to determine whether such evidence is admissible. The district court reserved ruling on the motion in limine; at trial, the district court overruled Wright Hennepin's objection to the same evidence.

The case was tried to a jury over two and one-half weeks in March 2012. The jury returned a special verdict form in which it found Wright Hennepin liable for negligence, trespass, and nuisance. The jury awarded the Popplers damages of $648, 200 for "Negligence and/or Trespass" and damages of $105, 000 for "Nuisance." The district court entered judgment for the Popplers in the amount of $753, 200. The district court also issued an injunction requiring Wright Hennepin to replace the power line serving the Popplers' dairy farm with a four-wire, three-phase line by June 30, 2012.

In April 2012, Wright Hennepin filed two post-trial motions. In its first post-trial motion, Wright Hennepin moved for judgment as a matter of law on the negligence claim on the grounds that the Popplers "failed to introduce sufficient evidence of the herd's exposure and dose of stray electricity to levels capable of causing harm" and that the Popplers failed to introduce sufficient evidence that stray voltage was the cause of the herd's health problems. In the alternative, Wright Hennepin moved for a new trial on the ground that the district court erred by admitting the Popplers' expert evidence and by not holding a Frye-Mack hearing. The district court denied Wright Hennepin's first post-trial motion.

In its second post-trial motion, Wright Hennepin moved to amend the jury's verdict to find that the damages awarded consist of five specified types of damages that had been identified by the Popplers' damages expert. In the alternative, Wright Hennepin moved for a new trial on the issue of damages to determine the amounts of damages attributable to the five specified types of damages. Wright Hennepin also moved for judgment as a matter of law or, in the alternative, for remittitur of the damages award.

The district court denied Wright Hennepin's second post-trial motion in part and granted it in part. The district court amended the jury's verdict by making amended findings to reflect the specific types of damages awarded and the amount associated with each type. The district court also remitted the Popplers' damages by $38, 000.

The Popplers filed a post-trial motion seeking an award of treble damages. The district court denied the motion.

In August 2012, the district court amended the judgment to provide for damages of $715, 200.00 plus interest in the amount of $149, 148.24 and costs and disbursements of $54, 698.69, for a total of $919, 046.93. Wright Hennepin appeals by way of a notice of appeal, and the Popplers cross-appeal by way of a notice of related appeal.

ISSUES

I. Did the district court err by denying Wright Hennepin's motion for a new trial on the ground that the Popplers' expert evidence should not have been admitted into evidence?

II. Did the district court err by denying Wright Hennepin's post-trial motion for judgment as a matter of law on the ground that the evidence of causation is insufficient?

III. Did the district court err by granting Wright Hennepin's post-trial motion to amend the jury's verdict and by "itemizing" the jury's award of damages?

IV. Did the district court err by denying Wright Hennepin's post-trial motion for judgment as a matter of law or a new trial on the ground that the Popplers' evidence of "milk loss" is ...


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