Welsch et al v. Hoop Beef System, LLC et al

Filing 43

ORDER ON FINAL PRETRIAL CONFERENCE - estimated length of trial is 6 days; Jury Trial set for 3/20/2017 at 09:00 AM in Courtroom 1, Robert V. Denney Federal Building, 100 Centennial Mall North, Lincoln, NE before Judge John M. Gerrard. Ordered by Magistrate Judge Cheryl R. Zwart. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RANDY WELSCH and CODY WELSCH,
Case No. 4:15-cv-03161
Plaintiffs,
v.
HOOP BEEF SYSTEM, LLC and
DR. ROBERT BRYANT,

ORDER ON FINAL PRETRIAL
CONFERENCE

Defendants.

HOOP BEEF SYSTEM, LLC
Counterclaim-Plaintiff,
v.
RANDY WELSCH AND CODY WELSCH,
Counterclaim-Defendants.
A final pretrial conference was held on the 3rd day of March, 2017. Appearing for the
parties as counsel were:
Brian Buescher, counsel for Plaintiffs Randy Welsch and Cody Welsch (“Plaintiffs”);
Rene Charles Lapierre, counsel for Defendants Hoop Beef System, LLC and Dr. Robert
Bryant (“Defendants”).
(A)

Exhibits. Exhibit List to be submitted to the court for filing by March 8, 2017.

(B)
Uncontroverted Facts. The parties have agreed that the following may be
accepted as established facts for purposes of this case only:
1.

Plaintiffs Randy and Cody Welsch conduct a cattle business in Gladstone, Nebraska,
operating under the name of C & R Cattle.

2.

Defendant Hoop Beef is a limited liability company based in Vermillion, South Dakota.

3.

Defendant Dr. Robert Bryant is the founder of Hoop Beef Systems, LLC.

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4.

Dr. Robert Bryant sells cattle under the trade name Grand Meadow Feeders.

(C)
Controverted and Unresolved Issues. The issues remaining to be determined
and unresolved matters for the court’s attention are:
Plaintiffs’ Issues:
Breach of Contract
1.

Whether Defendants breached the Heifer Contract.

2.

Whether Defendants breached the Heifer Contract by delivering heifers that were
underweight, in poor health, had unusually low fertility rates, were diseased, or were
otherwise not in merchantable condition.

3.

Whether Defendants breached the Heifer Contract by failing to provide professional
grade consulting services with regard to the heifers purchased under the Heifer Contract,
and instead provided Plaintiffs with defective nutritional advice that caused the heifers to
suffer serious health issues and death.

4.

Whether Defendants breached the implied covenant of good faith and fair dealing that
exists within the Heifer Contract by virtue of its actions and inactions.

5.

Whether Defendants’ breach of the Heifer Contract caused damages to Plaintiffs and the
amount of those damages.

Negligence
6.

Whether Defendants owed a duty to Plaintiffs to (a) fairly and accurately represent the
condition of the heifers being sold to Plaintiffs and (b) provide Plaintiffs with defective
consulting services on nutrition and related matters with regard to the heifers Plaintiffs
purchased from Defendants.

7.

Whether Defendants breached the duty it owed to Plaintiffs by (a) misrepresenting the
condition of the cattle it sold to them and (b) failing to provide Plaintiffs with defective
consulting services on nutrition and related matters with regard to the heifers Plaintiffs
purchased from Defendants.

8.

Whether Plaintiffs suffered damages proximately caused by Defendants’ failure to
discharge its duties.

Breach of Warranty
9.

Whether Defendants breached the express warranty of the merchantability in the Heifer
Contract and the implied warranty that the heifers sold were fit for a particular purpose
by selling heifers to Plaintiffs that were not in “merchantable” condition nor were they fit
for the purpose for which they were sold because they were underweight, diseased, in

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poor health, and had unusually low fertility rates as a result of their poor health
conditions.
10.

Whether Plaintiffs suffered damages proximately caused by Defendants’ breach of these
warranties.

11.

Whether Defendants’ actions pursuant to its breach of contract, negligence, and breach of
warranty causes of action caused damages to Plaintiffs, and the amount of such damages.

Unjust Enrichment
12.

Whether Defendants received a benefit from Plaintiffs when Defendants instructed
Plaintiffs to have the check from the sale barn in Fairbury, Nebraska (for a heifer owned
by Dr. Bryant that had been delivered to the Welsches) handed over to Dr. Bryant, and
Dr. Bryant, upon information and belief, cashed this check, even though Plaintiffs had
paid in full for this heifer.

13.

It is unjust for Defendants to retain the benefits of the heifer check from the sale barn
considering the totality of the circumstances, including, but not limited to, the fact that
Defendants owe that money and the entire purchase price of this heifer to Plaintiffs and
Defendants are wrongfully withholding it.

14.

Whether Defendants wrongfully retained a $30,000 deposit for additional bred heifers
which should be returned to Plaintiffs given Defendants’ breach of the Heifer Contract.

15.

Whether it is unjust for Defendants to retain the benefits of the $30,000 deposit, and
certain other amounts paid for cattle, considering the totality of the circumstances.

16.

Whether Defendants wrongfully retained $1,500 of amounts paid by Plaintiffs for
defective building latches.

17.

Whether it is unjust for Defendants to retain the benefits of the $1,500 paid for defected
building latches.

Plaintiff’s Defenses
18.

Whether Plaintiffs are excused from purchasing the remaining heifers under the original
contract due to the material breach of the Heifer Agreement.

19.

Whether Plaintiffs are excused from purchasing the remaining heifers under the original
contract due to estoppel.

20.

Whether Plaintiffs are excused from purchasing the remaining heifers under the original
contract due to waiver.

21.

Plaintiffs will be filing a motion in limine regarding various issues.

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Defendants’ Issues:
1. Whether Plaintiffs breached the Heifer Agreement by refusing to accept delivery of the
additional 120 bred heifers.
a. Assuming a breach occurred, the extent of the damage sustained by Dr. Robert
Bryant as a result of the breach.
2. Whether Plaintiffs breached the Building contract with Hoop Beef in failing to pay the
remaining $17,820.88 that remained on the contract price.
a. Assuming a breach occurred, the extent of the damage sustained by Hoop Beef
as a result of the breach.
3. Whether the negligence claim against Hoop Beef System is barred by the Economic Loss
Doctrine. The Economic Loss Doctrine will be the subject of a Motion in Limine by the
Defendants.
a. Assuming Plaintiffs’ negligence claim is not barred, whether Hoop Beef owed a
duty to fairly and accurately represent the condition of the heifers and the
nutritional advice provided.
b. Assuming a duty was owed, whether Hoop Beef breached that duty.
c. The extent of the damage sustained by the Plaintiffs that was proximately
caused by the negligence.
4. Whether the Heifer Agreement contained an express warranty of merchantability.
a. Whether Hoop Beef sold the heifers to the Plaintiffs.
b. Whether Hoop Beef expressly warranted that the heifers would be
merchantable.
c. Assuming a warranty did exist, whether the heifers were not as warranted.
d. The extent of the damage sustained by the Plaintiffs that was proximately
caused by the breach.
5. Whether the Heifer Agreement contained an implied warranty that the heifers were fit for
a particular purpose.
a. Whether Hoop Beef sold the heifers to the Plaintiffs.
b. Whether the Plaintiffs purchased the heifers with a particular purpose in mind.
c. Whether the Plaintiffs were relying on Hoop Beef’s skill or judgment that the
heifers were suitable for that particular purpose.
d. Whether the heifers were fit for that particular purpose.

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e. The extent of the damage sustained by the Plaintiffs that was proximately
caused by the breach.
6. Whether Hoop Beef and/or Dr. Robert Bryant have been unjustly enriched.
a. Whether Defendants were unjustly enriched after retaining Plaintiffs’ $30,000
deposit for the additional 120 bred heifers after Plaintiffs refused to accept
delivery of the heifers.
b. Whether the Agreement to send an additional heifer with the September 2015
load of heifers constituted a modification of the Heifer Agreement.
7. Defendants will be filing a Motion in Limine regarding many of the theories of recovery
and damages alleged by the Plaintiffs.
(D)
Witnesses. All witnesses, including rebuttal witnesses, expected to be called to
testify by plaintiff, except those who may be called for impeachment purposes as defined in
NECivR 16.2(c) only, are:
Name

Address

Randy Welsch
Cody Welsch
George E. Miller
Dr. Randall Pedersen
Dr. Jason Warner
Alan R. Doster, DVM, PhD, ACVP

Gladstone, NE 68352
Gladstone, NE 68352
Garnett KS 66032
Royal, NE 68773
Eagle, NE
University of Nebraska – Institute
Agriculture and Natural Resources
Doctor of Veterinary Medicine
Veterinary Diagnostic Center
P.O. Box 82646
Lincoln, NE 68501-2646
Yankton, SD 57078
Doctor of Veterinary Medicine
Countryside Vet Clinic
3030 Industrial Ave
Fairbury, NE 68352
Doctor of Veterinary Medicine
Fairbury Vet Clinic
805 S. K Street
Fairbury, NE 68352
Jansen, NE 68377

Mike Shurman
Dr. Larry Winter (treatment of cattle)

Dr. Tyler Kimberlin (treatment of cattle)

Dave Schnuelle

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of

Any witness listed by the opposing party.
All witnesses who may be called solely to establish foundation for an exhibit, Plaintiff
may call the following witnesses if the need arises:
Robert (Chip) Kroeker
Dennis Hendricks

Jansen, NE 68377
Beatrice 77 Livestock
North Hwy. 77
Beatrice, NE
University of Nebraska – Institute of
Agriculture and Natural Resources
Veterinary Diagnostic Center
P.O. Box 82646
Lincoln, NE 68501-2646
Midwest Laboratories
13611 B Street
Omaha, NE 68144
Animal Disease Research & Diagnostic
Laboratory
Veterinary
and
Biomedical
Sciences
Department
South Dakota State University
Box 2175, North Campus Drive
Brookings, SD 57007-1395
56220 715 Rd., Gladstone, NE 68352

Dr. Bruce Brodersen, DVM

Heather Ramig

Dale W. Miskimins, DVM

Eddie Grummert
Any additional witness needed to establish
foundation.

All witnesses expected to be called to testify by defendant, except those who may be
called for impeachment purposes as defined in NECivR 16.2(c) only, are:
1. Brent Bryant
Aurelia, IA 51005
2. Dr. Robert Bryant
Storm Lake, IA 50588
3. Tim Bickett
Worthington, MN 56187
4. Matt Schulte
Vermillion, SD 57069
5. Dr. Sara Barber
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Worthington, MN 56187
6. Dr. Daniel Little
2301 Research Parkway, Suite 155
Brookings, SD 57006
7. Dr. Monty Kerley
470 S. Highway UU
Columbia, MO 65203
8. Any witness necessary to lay foundation.
It is understood that, except upon a showing of good cause, no witness whose name and
address does not appear herein shall be permitted to testify over objection for any purpose except
impeachment. A witness whose only testimony is intended to establish foundation for an exhibit
for which foundation has not been waived shall not be permitted to testify for any other purpose,
over objection, unless such witness has been disclosed pursuant to Federal Rule of Civil
Procedure 26(a)(3). A witness appearing on any party’s witness list may be called by any other
party.
(E)
Expert Witnesses’ Qualifications. Experts to be called by plaintiff and their
qualifications are:
Name and Address

Qualifications

Jason M. Warner, Ph.D.
Great Plains Livestock Consulting, Inc.
P.O. Box 377
Eagle, NE 68347
Randall E. Pedersen, DVM
Royal, NE 68773-5023

See attached CV

See attached CV

Experts to be called by defendant and their qualifications are:
Name and Address

Qualifications

Dr. Daniel Little

See attached CV
See attached CV

Dr. Monty Kerley

(F)
Voir Dire. Counsel have reviewed Federal Rule of Civil Procedure 47(a) and
NECivR 47.2(a) and suggest the following with regard to the conduct of juror examination:

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Following the Court’s examination, counsel for the parties seek permission to examine
the jury.
(G)
Number of Jurors. Counsel have reviewed Federal Rule of Civil Procedure 48
and NECivR 48.1 and suggest that this matter be tried to a jury composed of 12 7-8 members.
(H)

Verdict. The parties will not stipulate to a less-than-unanimous verdict.

(I)
Briefs, Instructions, and Proposed Findings. Counsel have reviewed NECivR
39.2(a), 51.1(a), and 52.1, and suggest the following schedule for filing trial briefs, proposed jury
instructions, and proposed findings of fact, as applicable:
Trial briefs, proposed jury instructions, and all motions in limine shall be filed by March
13, 2017.
(J)
Length of Trial. Counsel estimate the length of trial will consume not less than
4 day(s), not more than 10 day(s), and probably about 6 day(s).
(K)

Trial Date. Trial is set for March 20, 2017.

RANDY WELSCH and CODY WELSCH, HOOP BEEF SYSTEM, LLC, and DR.
Plaintiffs,
ROBERT BRYANT, Defendants,

By /s/ Brian C. Buescher
Brian C. Buescher #21920
Dwyer Arce #25709
Kutak Rock LLP
1650 Farnam Street
Omaha, Nebraska 68102-2186
[phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

By /s/ Rene Charles Lapierre
Rene Charles Lapierre
Klass Law Firm, L.L.P.
Mayfair Center, Upper Level
4280 Sergeant Road, Suite 290
Sioux City, Iowa 51106
[phone]
[e-mail]
Attorney for Defendants

March 3, 2017.

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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