Black Soil Dairy, LLC v. Land O'Lakes, Inc. et al

Filing 75

ORDER denying 49 Motion to Strike 42 Motion for Summary Judgment (Affidavit of Dr Julian Olson, DVM, and Supporting Documents) and 44 Motion to Exclude Plaintiff's Expert by Plaintiff Black Soil Dairy, LLC. Signed by Judge Linda R Reade on 10/1/2018. (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

BLACK SOIL DAIRY, LLC,
Plaintiff,

No. 17-CV-4065-LRR

vs.

ORDER

LAND O’LAKES, INC.,
Defendant.
____________________
I. INTRODUCTION
The matter before the court is Plaintiff Black Soil Dairy, LLC’s (“Black Soil”)
“Motion to Strike Affidavit of Dr. Julian Olson DVM and Supporting Documents Relied
Upon by Defendant [Land O’Lakes] in Support of its Motion for Summary Judgment
. . . and Motion to Exclude Expert” (“Motion”) (docket no. 49).
II. RELEVANT PROCEDURAL HISTORY
On August 15, 2017, Black Soil filed a “Petition and Jury Demand” (“Petition”)
(docket no. 2) in the Iowa District Court for Sioux County, Iowa. In the Petition, Black
Soil asserts three claims against Defendant Land O’Lakes, Inc. (“Land O’Lakes”)1: (1)
Count I alleges that Land O’Lakes was negligent in a number of respects related to a milk
replacement delivered to Black Soil; (2) Count II alleges that Land O’Lakes breached an
implied warranty of fitness regarding the milk replacement; and (3) Count III alleges that
Land O’Lakes breached its voluntarily assumed duties. See Petition at 3-5. On September
19, 2017, Land O’Lakes filed an Answer (docket no. 5). On October 13, 2017, Land

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The Petition also included claims against Ridley USA Inc. (“Ridley”). See
generally Petition. On August 22, 2018, Black Soil and Ridley filed a joint Stipulation of
Dismissal Without Prejudice (docket no. 43) dismissing Ridley from this action without
prejudice.

O’Lakes filed a Notice of Removal (docket no. 1), bringing the case before the court.
On December 6, 2017, United States Chief Magistrate Judge C.J. Williams2 adopted
the parties’ proposed deadlines. See December 6, 2017 Minute Entry (docket no. 14). In
relevant part, the parties’ deadlines were as follows: Black Soil’s expert witness disclosure
deadline was March 9, 2018, Land O’Lakes’s expert witness disclosure deadline was May
9, 2018, Black Soil’s rebuttal expert witness disclosure deadline was June, 11, 2018, and
the dispositive motions deadline was August 10, 2018. See Scheduling Order (docket no.
15) at 1.
On March 9, 2018, Black Soil filed the Designation of Experts (docket no. 21),
which designated Daniel E. Little as an expert witness. See Designation of Experts at 1.
Black Soil failed to provide Dr. Little’s written report by the March 9, 2018 deadline. See
generally id. On March 21, 2018, twelve days after the deadline, Black Soil filed a
Motion to Extend Expert Deadline (docket no. 24), seeking “an additional 120 days to
produce expert’s reports.” Motion to Extend Expert Deadline at 4. Black Soil “offer[ed]
no explanation for why it did not bring the . . . motion prior to the expiration of the expert
witness deadline.” April 11, 2018 Order (docket no. 37) at 4 (noting that Black Soil
“would have become aware of its inability to calculate damages prior to the expiration of
the deadline and . . . could have moved to extend the deadline before the deadline had
expired” but did not do so (emphasis omitted)).
Nevertheless, Judge Williams granted the Motion to Extend Expert Deadline and
set July 9, 2018, as Black Soil’s expert witness disclosure deadline, August 24, 2018, as
the dispositive motions deadline, September 10, 2018, as Land O’ Lakes’s expert witness
disclosure deadline and October 10, 2018, as Black Soil’s rebuttal expert witness
disclosure deadline and the discovery deadline. Id. Judge Williams noted that setting the

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On September 11, 2018, Judge Williams became a United States District Court
Judge for the Northern District of Iowa.
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dispositive motions deadline prior to Land O’Lakes’s expert witness disclosure deadline
was unusual, but found it acceptable because the court was “not willing to prejudice [Land
O’Lakes]” by granting Black Soil’s Motion to Extend Expert Deadline. Id. at 4-5. Judge
Williams further provided, “Should the setting of defendant[’s] expert deadline prior to the
dispositive motions deadline prove prejudicial to any party, that party may petition the
[c]ourt at a later date to file a dispositive motion following the expiration of the dispositive
motions deadline.” Id. at 5. Neither party filed such a motion.
On August 16, 2018, Land O’Lakes filed the Motion for Summary Judgment
(docket no. 42). On August 23, 2018, Land O’Lakes filed a Motion to Exclude Plaintiff’s
Expert (docket no. 44). On September 4, 2018, Black Soil filed the Motion. On
September 5, 2018, Land O’Lakes filed a Resistance (docket no. 51). Neither party has
requested oral argument and the court finds that oral argument is unnecessary. The matter
is fully submitted and ready for decision.
III. ANALYSIS
In the Motion, Black Soil asserts that Land O’Lakes “submitted an [a]ffidavit of
Julian (“Skip”) Olson” in support of its Motion for Summary Judgment and Motion to
Exclude Plaintiff’s Expert and that the affidavit “contains numerous expert opinions that
were not previously disclosed by [Land O’Lakes].” Motion at 1. Black Soil also contends
that the affidavit of Dr. Olson should be stricken because Land O’Lakes “did not identify
Dr. Olson as an expert in response to discovery requests” and the affidavit “relies upon
hearsay statements.” Brief in Support of Motion (docket no. 49-1) at 3. The court shall
address each argument in turn.
A. Failure to Disclose
Black Soil argues that Dr. Olson’s affidavit “should be stricken for failure to
disclose and/or supplement expert opinions as required by Rules 26(a)(2)(B)(i) and (e).”
Id. at 3.

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Federal Rule of Civil Procedure 26 provides that “a party must disclose to the other
parties the identity of any witness it may use at trial to present evidence under Federal Rule
of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). The disclosure of expert
testimony “must be accompanied by a written report—prepared and signed by the witness.”
Fed. R. Civ. P. 26(a)(2)(B). “A party must make these disclosures at the times and in the
sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). Parties must supplement
expert disclosures as required by the Federal Rules. See Fed. R. Civ. P. 26(e) (providing
when a party must supplement an expert disclosure).

“If a party fails to provide

information or identify a witness as required by Rule 26(a) or (e), the party is not allowed
to use that information or witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1).
As noted above, Land O’Lakes’s deadline to disclose expert witnesses was
September 10, 2018. See April 11, 2018 Order at 4 (setting September 10, 2018, as Land
O’Lakes’s expert witness disclosure deadline). Thus, Land O’Lakes was not required to
disclose Dr. Olson as an expert prior to filing its Motion for Summary Judgment on
August 16, 2018, or its Motion to Exclude Plaintiff’s Expert on August 23, 2018. Black
Soil was well aware of these deadlines, which were the product of its failure to timely file
its own expert witness disclosure. See April 11, 2018 Order at 4 (noting that setting the
dispositive motions deadline prior to Land O’Lakes’s expert witness disclosure deadline
was unusual, but acceptable in light of Black Soil’s requested extension). Land O’Lakes
was not required to disclose its expert witness until September 10, 2018, and therefore,
Land O’Lakes did not fail to timely disclose its expert prior to relying upon it in the
Motion for Summary Judgment or the Motion to Exclude Plaintiff’s Expert. Accordingly,
the court shall deny the Motion on the ground of failure to disclose.

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B. Hearsay
Black Soil asserts that “Dr. Olson’s opinions . . . rely upon hearsay statements and
documents not produced in discovery.” Brief in Support of Motion at 10. Black Soil
contends that the court should, therefore, disregard Dr. Olson’s affidavit in addressing the
Motion for Summary Judgment and the Motion to Exclude Plaintiff’s Expert. See id. at
10-11. Black Soil specifically points to Dr. Olson’s reliance on Exhibit D, Exhibit I and
his statements in paragraphs 20, 21 and 22 of his affidavit. See id. at 11-14.
“An affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P.
56(c)(4). Thus, “[w]hen an affidavit contains an out-of-court statement offered to prove
the truth of the statement that is inadmissible hearsay, the statement may not be used to
support or defeat a motion for summary judgment.” Jenkins v. Winter, 540 F.3d 742, 748
(8th Cir. 2008) (quoting Brooks v. Tri-Sys., Inc., 425 F.3d 1109, 1111 (8th Cir. 2005)).
However, “an affidavit is admissible if it states the affiant’s personal knowledge or
perception acquired through review of records prepared in the ordinary course of
business.” Progressive Cas. Ins. Co. v. Fed. Deposit Ins. Corp., 80 F. Supp. 3d 923, 934
(N.D. Iowa 2015). Further, “an expert may rely on otherwise inadmissible hearsay
evidence in forming his opinion if the facts and data upon which he relies are of a type
reasonably relied upon by experts in [the] field.” Arkwright Mut. Ins. Co. v. Gwinner Oil,
Inc., 125 F.3d 1176, 1182 (8th Cir. 1997) (citing Fed. R. Evid. 703). Hearsay is “a
statement that: (1) the declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the
statement.” Fed. R. Evid. 801(c). “Hearsay is not admissible unless any of the following
provides otherwise: a federal statute; [the Federal Rules of Evidence]; or other rules
prescribed by the Supreme Court.” Fed. R. Evid. 802.

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1.

Exhibit D

Black Soil first objects to Dr. Olson’s reliance on Exhibit D. Black Soil asserts that
Exhibit D consists of “invoices from a non-party Central Veterinary Clinic.” Brief in
Support of Motion at 12. Contrary to Black Soil’s assertion, the document contained in
Land O’Lakes’s Appendix in Support of Motion for Summary Judgment (“MSJ
Appendix”) (docket no. 42-4) as Exhibit D is an invoice evidencing Milk Products’s sale
of “11,850 pounds of the [p]roduct to Ridley.” MSJ Appendix at 22. The documents to
which Black Soil refers were not attached to, or referenced in, Dr. Olson’s affidavit. See
generally MSJ Appendix at 20-60. Therefore, the invoices cited by Black Soil do not
provide any grounds for objection to Dr. Olson’s affidavit. Accordingly, the court shall
deny the Motion as to Exhibit D.
2.

Exhibit I

Black Soil also objects to Dr. Olson’s reliance on Exhibit I. See Brief in Support
of Motion at 11-12. Exhibit I contains “certificates and other documents” that vendors
supplied to Milk Products “confirming that their ingredients were negative for
Salmonella.” MSJ Appendix at 25. Black Soil contends that Exhibit I should be stricken
from the record because it consists of documents that “contain hearsay statements” and
“Dr. Olson lacks personal knowledge as to the substance of such documents.” Brief in
Support of Motion at 12.
The court finds that the documents constitute test results and are akin to laboratory
test reports. Therefore, the court finds that these documents are admissible under the
business records exception. See Shelton v. Consumer Prods. Safety Comm’n, 277 F.3d
998, 1010 (8th Cir. 2002) (“[L]aboratory test reports constitute business records and
therefore are admissible subject to the requirements of [Federal Rule of Evidence
803(6)].”); see also United States v. Baker, 855 F.2d 1353, 1359-60 (8th Cir. 1988)
(affirming the district court holding that regularly conducted laboratory reports were

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admissible as business records under Federal Rule of Evidence 803(6)). Black Soil has
offered nothing to challenge the reliability of the documents nor has it contended that these
reports were made on other than a routine basis. See Baker, 855 F.2d at 1360. Further,
even assuming Exhibit I did not qualify as business records, the court finds that it contains
the type of records upon which an expert would reasonably rely in forming his or her
opinions. See Arkwright, 125 F.3d at 1182. Accordingly, the court shall deny the Motion
as to Exhibit I.
3.

Paragraphs 20, 21 and 22

Finally, Black Soil objects to Dr. Olson’s reliance on hearsay statements in
paragraphs 20, 21 and 22 of his affidavit. See Brief in Support of Motion at 13-14. These
paragraphs pertain to purchases and complaints made by Hillside Calf Barn, Dykstra Calf
Ranch and RJF Enterprises. See MSJ Appendix at 25-27. Black Soil asserts that Dr.
Olson does not cite to an affidavit or deposition testimony to support his statements that
these consumers’ complaints did not regard Salmonella or malnutrition. See Brief in
Support of Motion at 13-14.
Black Soil is correct that the paragraphs at issue do not include citations to outside
sources. However, Dr. Olson testified that he has “personal information and knowledge
relating to the facts set forth in th[e] [a]ffidavit.” MSJ Appendix at 20. He further stated
that “[a]s part of [his] job for Milk Products, [he is] responsible for product development,
research, complaint investigation and management and sales support.” Id. at 21. The
court finds that these paragraphs contain statements based on Dr. Olson’s personal
knowledge that he gained within the scope of his employment. Therefore, these statements
do not constitute hearsay. Accordingly, the court shall deny the Motion as to these
paragraphs.
IV. CONCLUSION
For the foregoing reasons, the Motion to Strike Affidavit of Dr. Julian Olson and

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the Supporting Documents Relied Upon by Land O’Lakes in Support of its Motion for
Summary Judgment and Motion to Exclude Expert (docket no. 49) is DENIED.
IT IS SO ORDERED.
Dated this 1st day of October, 2018.

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