Stembridge et al v. National Feeds et al

Filing 136

MEMORANDUM DECISION denying 88 Motion for Summary Judgment ; denying 89 Motion to Determine Daubert Issues/to Exclude Expert Testimony. Signed by Judge Dale A. Kimball on 09/23/2013. (asp)

______________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION

KOLBY STEMBRIDGE, ET AL.,
Plaintiffs,

MEMORANDUM DECISION
AND ORDER

vs.
Case No. 1:11CV49DAK
NATIONAL FEEDS INC., ET AL.,
Judge Dale A. Kimball
Defendants.

This matter is before the court on Defendant Rangen Inc.’s Motion for Summary
Judgment and Motion to Exclude Expert Testimony. Defendant National Feeds Inc. joined in
Rangen’s motions. After the motions were fully briefed, on September 11, 2013, the court held a
hearing on the motions. At the hearing, Plaintiffs were represented by D. Williams Ronnow and
Megan E. Garrett, Rangen was represented by Hans A. Mitchell, and National Feeds was
represented by Allison S. Fletcher. The court heard oral argument from counsel for Plaintiffs and
Rangen and then took the motion under advisement. The court has carefully considered all
pleadings, memoranda, and other materials submitted by the parties. The court has further
considered the law and facts relevant to the motion. Now being fully advised, the court enters
the following Memorandum Decision and Order.
BACKGROUND
The Stembridges are three generations of family mink ranchers in Peoa, Utah. The
Stembridges each ran separate herds on the ranch, but used common sheds and equipment to care

for the mink. The Stembridges are each members of the Fur Breeders Agricultural Cooperative
(“Co-op”), which is an organization of fur breeders that provides various services to its members,
including feed, vaccinations, and veterinary services. Over 100 mink ranches are part of the Coop.
The Stembridges feed their mink a base diet that is comprised of wet feed purchased and
received through the Co-op. The Co-op supplied feed is intended to be a complete feed that will
allow mink to be raised without additional feeds or supplements.
In 2010, however, the Stembridges ordered Reproduction Crumlets and Lactation
Crumlets from National Feeds, Inc. National Feeds markets its crumlets as supplemental feeds to
be added to a base wet feed diet. To fulfill the Stembridges’ order, National Feeds used Rangen,
a toll miller, to manufacture and then ship the feed. Rangen and National Feeds have a contract,
whereby Rangen manufactures product for National and distributes that product directly to
National Feeds’ customers.
The Stembridges incorporated the Reproduction Crumlet into their minks’ diet beginning
in March 2010, and increased the percentage of crumlet until the diet reached twenty percent
crumlets and eighty percent wet feed. After feeding the Reproduction Crumlet and beginning to
feed the Lactation Crumlet, the Stembridges noticed that many of the mink had no kits and those
that did have kits had small litter sizes. The Stembridges also began to notice that many of the
breeding females appeared to be blind and the kits were sluggish, partially paralyzed, had crusty
eyes and noses, were greasy and skinny, did not “fur out,” and were otherwise unhealthy. After
the kits were weaned and vaccinated, they began dying. For three to four weeks, the Stembridges
lost large numbers of mink daily, totaling approximately 45% of their expected kit crop.
The Stembridges took several of their mink for examination at diagnostic laboratories,
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including the Utah Veterinary Diagnostic Laboratory (“UVDL”). They learned that the mink
presented physical changes showing that they suffered from vitamin E deficiency. Because the
Stembridges suspected that the problem was caused by the feed, the Stembridges tested their
remaining Reproduction Crumlet. One test showed that the vitamin E in the crumlet was less
than guaranteed on the label, while another showed that the fat levels did not meet the label
guarantee. The Stembridges later had the Lactation Crumlet tested and the test showed that it
contained ionophore monensin. The parties dispute whether minks can tolerate monensin.
The Stembridges expert, Dr. Hildebrandt, concluded that the Reproduction Crumlet
reduced the overall level of fat in the minks’ diet, prevented the mink from accumulating
sufficient bodily stores of vitamin E, and predisposed the mink to suffer a vitamin E deficiency in
the event their immune systems were challenged. Dr. Hildebrandt further opined that the
Lactation Crumlet with monensin caused oxidative stress reaction in the mink and accelerated
the minks’ depletion of already low levels of vitamin E. The reduced levels of vitamin E
allegedly caused the mink to suffer immunosuppression and vitamin E deficiency, which
eventually resulted in the minks’ death through secondary infections and kidney damage.
The parties dispute whether Rangen followed National Feeds’ formula and directions for
the crumlets. The Stembridges allege that the Lactation Crumlets contained monensin, which is
not one of the ingredients identified on the label, and the Reproduction Crumlets failed to meet
National Feeds’ requirements for vitamin E and fat.
The parties also dispute whether Rangen sells mink feed. Rangen contends that, as a
miller, it does not sell mink feed. The Stembridges, however, allege that under the contract
between Rangen and National, Rangen sells mink feed to National. Rangen further alleges that it
did not sell the mink feed at issue in this case. The Stembridges ordered the feed from National,
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and Rangen manufactured and delivered the feed to the Stembridges according to Rangen’s
contract with National. The Stembridges, therefore, assert that the payment Rangen received
from National for the Stembridges’ order was based on Rangen’s sale of the product to National
under the contract.
Furthermore, the parties dispute whether Rangen’s packing slips accompanying the
crumlets that were shipped to the Stembridges provide any warranty to the Stembridges. The
packing slips stated: “We warrant that seeds, feeds and plants we sell will conform to the label
description as required under state and federal laws.” Rangen contends that the warranty does
not apply to the Stembridges because Rangen did not sell the crumlets in this case. Rangen
claims that National sold the crumlets to the Stembridges and Rangen only manufactured the
crumlet and shipped it to the Stembridges. Therefore, Rangen asserts that it did not sell the
crumlet to anyone and the warranty does not apply. However, the Stembridges argue that by
manufacturing and shipping the product under the terms of Rangen’s contract with National, and
receiving payment from National for doing so, Rangen sold the crumlet to National. Therefore,
the warranty should apply.
DISCUSSION
Rangen’s Motion to Exclude Expert Testimony
Rangen moves for an order excluding the testimony of Dr. Hugh Hildebrandt, D.V.M.,
the Stembridges’ veterinarian expert, and Douglas Fizzell, the Stembridges’ damages expert
under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). The Tenth Circuit has recognized the trial court has broad discretion in
fulfilling its “gatekeeping role” of reviewing and determining admissibility of proffered expert
testimony under Rule 702 and Daubert. United States v. Velarde, 214 F.3d 1204, 1209 (10th Cir.
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2000).
A. Dr. Hildebrandt
Rangen argues that Dr. Hildebrandt does not have the required expertise in nutrition
because it requires expertise in the formulation of diets to meet the nutritional needs of the
animals consuming those diets. In his first report, Dr. Hildebrandt mistakenly calculated the
vitamin E levels. When he submitted a supplemental report, with the calculation corrected, he
did not explain why he had done it wrong in the first report. This error, however, does not
demonstrate that Dr. Hildebrandt is unqualified. Rather, it shows that Dr. Hildebrandt made a
mistake that was later corrected. The court is unaware of any requirement that an expert explain
why he made a mistake. Dr. Hildebrandt has a Doctor of Veterinary Medicine from the
University of Wisconsin at Madison and has had a private veterinary practice for 23 years in
which he routinely treats mink in ranch settings. During Dr. Hildebrandt’s many years of
veterinarian practice he has had extensive experience with the nutritional and dietary needs of the
animals he treats. The court finds no basis for excluding Dr. Hildebrandt’s testimony with
respect to nutritional issues. If Rangen believes that specific opinions lack merit, it can address
its contentions on cross examination.
Rangen also claims that Dr. Hildebrandt’s opinions should be excluded because he
ignores contrary evidence. Again, this argument is not a basis for excluding his testimony
altogether. Rangen can question Dr. Hildebrandt as to the contrary evidence on cross
examination.
Rangen’s further disputes Dr. Hildebrandt’s theory as to the causation of harm to the
minks as lacking factual and scientific support. During Dr. Hildebrandt’s practice as a
veterinarian he has assisted clients with identifying various toxins and herd exposure to toxic
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substances and has been involved in clinical studies involving the adverse effects of toxins in
different animals. His education, skill, and extensive veterinary clinical experience with mink
qualify him as an expert entitled to provide opinion testimony. His opinions are within his realm
of expertise and based on scientific principles and facts. Rangen’s criticisms of Dr.
Hildebrandt’s opinions pertain only to discrete portions of his report and do not affect his
analysis as a whole. Rangen’s contentions go to the weight to be afforded Dr. Hidebrandt’s
theory, not the admissibility of it. The court, therefore, finds no basis for Rangen’s motion.
B. Fizzell
Rangen also seeks to exclude the damages opinions of Douglas Fizzell. Mr. Fizzell does
not dispute that Rangen’s damages expert’s calculations are inaccurate, rather he disputes that
they are the proper measure of Plaintiff’s damages. Mr. Fizzell suggests that the calculation does
not take into account that the Stembridges retain kits to grow the size of their herd, may pelt out
breeders to reduce the size of their herd, or sell live animals as breeders to other ranchers.
However, Rangen claims that this information does not apply to Plaintiffs, or is taken into
account by Rangen’s expert. Therefore, Rangen argues that Mr. Fizzell’s method is not valid and
his testimony should be excluded.
The court agrees with the Stembridges that Rangen’s challenge to Mr. Fizzell’s opinion
essentially requests the court to adopt Rangen’s theory of the case and then exclude Fizzell’s
opinion because it contradicts Rangen’s position. The dispute as to reproduction rates is a
question for the jury. Fizzell’s opinion is supported by evidence and is properly admissible.
Accordingly, Rangen’s Motion to Exclude Expert Testimony is denied.
Rangen’s Motion For Summary Judgment
As an initial matter, the parties both raise the issue of whether Utah or Idaho law should
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apply because the Stembridges are located in Utah but Rangen is located in Idaho. Utah and
Idaho law does not significantly differ with respect to all of the claims except the negligent
misrepresentation claim. However, to the extent that there is a conflict between Utah and Idaho
law, under the “most significant relationship” approach, the court concludes that Utah has the
most significant relationship to the dispute and Utah law governs.
I. Breach of Warranty Claims
Rangen argues that no express or implied warranties arose in this case because it did not
sell a product to anyone. Rangen contends that it provided a tolling service but did not sell a
product. Under Rangen and National Feeds’ Fur Feed Production Agreement, National
compensated Rangen per ton for toll manufacturing. Rangen procured its own ingredients and
materials for production of the goods and sent National monthly invoices for payment as to
finished products shipped, which also included current ingredient costs. National was required to
send Rangen a check within 14 days of the invoices that included both manufacturing
compensation and ingredient reimbursement. The parties further agreed that delivery charges for
goods delivered to customers were to be based on actual delivery charges. Therefore, although
Rangen claims that it did not sell the crumlets to National, National paid it for manufacturing,
ingredients, and shipping.
The preamble of the Fur Feed Production Agreement further states: “Whereas, Rangen
desires to produce certain mink and fox feeds (Goods) for sale in the United States;” and
“Whereas, National is willing, subject to the terms and conditions hereof, to disclose the
formulae for the purpose of selling to customers in the United States.” Although it is undisputed
in this case that Rangen did not sell the crumlets directly to the Stembridges, it is not clear under
the Fur Feed Production Agreement that Rangen was not selling the crumlets to National. The
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crumlets contained a National Feeds label and it appears that National Feeds entered the contract
for sale with customers, but Rangen processed such quantities of feed as customers requested,
acquired the ingredients for the feed, produced the feed according to National’s formula, agreed
to maintain the standard and quality of goods required by National, and shipped the feed to
specific customers.
A. Express Warranties
Under Utah law “a consumer can recover for breach of an express warranty despite a lack
of privity.” State of Utah v. GAF Corporation, 760 P.2d 310, 315 (Utah 1988). In GAF, the
court recognized that manufacturers can be held responsible for a variety of express warranties.
Id. “‘It would be unjust to recognize a rule that would permit manufacturers of goods to create a
demand for their products by representing that they possess qualities which they, in fact, do not
possess, and then, because there is no privity of contract existing between the consumer and the
manufacturer, deny the customer the right to recover if damages result from the absence of those
qualities, when such absence is not readily noticeable.’” Id. (quoting Baxter v. Ford Motor Co.,
12 P.2d 409, 412 (Wash. 1932)).
The Stembridges argue that Rangen expressly warranted that the crumlets would conform
to its label description as required under state and federal law. The Stembridges, directly and as
a third-party beneficiary, benefit from Rangen’s express warranty that the crumlets would
conform to the label descriptions. Affirmations of fact or promise, description of the goods, and
samples or models that are made part of the basis of the bargain can create express warranties.
Utah Code Ann. § 70A-2-313(1)(a)-(c). Rangen’s documents acknowledge that the feed it
produces is sold. Under Utah law, the Stembridges are allowed to recover upon the warranty
both as expressed users of the crumlet Rangen manufactured for National and as third-party
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beneficiaries to the contract between National and Rangen.
The Utah Uniform Commercial Code imputes privity to the Stembridges under these
circumstances. The scope of Rangen’s express warranty is not limited solely to the immediate
buyer and seller; rather, it “extends to any person who may reasonably be expected to use,
consume or be affected by the goods and who is injured by breach of the warranty.” Utah Code
Ann. § 70A-2-318. “Any beneficiary of a warranty may bring a direct action for breach of
warranty against the seller whose warranty extends to him.” U.C.C. § 2-318. The Stembridges,
as the ultimate purchasers and users of the crumlet, benefit from these warranties.
In this case, the Stembridges are expressly contemplated third-party beneficiaries to
Rangen and National Feeds’ contract as Rangen specifically made the feed to fulfill the
Stembridges’ order. National communicated the Stembridges’ order of crumlets to Rangen.
Rangen fulfilled the order and shipped the feed to the Stembridges. As a result, Rangen should
have reasonably expected the Stembridges to use the feed and the express warranty extends to the
Stembridges as third party beneficiaries.
Both Idaho and Utah law requires that a “commercial feed . . . offered for sale or sold or
otherwise distributed in this state . . . shall have . . . a label bearing” statutorily required
information. Idaho Code Ann. § 25-2705(1) (2012); Utah Code Ann. § 4-12-5; Utah Admin.
Code R68-2-4 (2013). These provisions require the label to set forth the minimum percentage of
crude fat and quantity of vitamin E. The label must also list the common or usual name of each
ingredient used in the manufacture of the feed. If the “composition or quality falls below or
differs from that which it is purported or is represented to possess by its labeling,” a commercial
feed is considered adulterated. Idaho Code Ann. § 25-2707(8); Utah Code Ann. § 4-12-2(1)(b).
In this case, the Stembridges have put forth sufficient evidence that the Lactation and
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Reproduction Crumlets did not conform to their label description as expressly warranted by
Rangen and as required by state law to survive summary judgment. There is evidence that the
Reproduction Crumlets were lower than the label stated for Vitamin E and crude fat, and that the
Lactation Crumlets contained monensin, which is recognized as a drug by the FDA, 21 C.F.R. §
558.4, and the label did not list it as an ingredient.
B. Implied Warranties of Merchantability & Fitness for Particular Purpose
Under both Utah and Idaho law, implied warranties of merchantability and fitness for a
particular purpose exist pursuant to statute. Idaho Code § 28-2-314 to -315; Utah Code Ann. §
70A-2-314 to -315. Rangen argues that it did not sell the Stembridges any feed and no statutory
implied warranty arose between Rangen and the Stembridges.
However, Rangen’s implied warranty of merchantability to National Feeds extends to the
Stembridges as a matter of law and as third-party beneficiaries. See Utah Code Ann. § 70A-2104(1); § 70A-2-318. “A seller’s warranty whether express or implied extends to any person
who may reasonably be expected to use, consume or be affected by the goods and who is injured
by breach of the warranty. Id. § 70A-2-318. The implied warranty of merchantability is “implied
in a contract for [the sale of goods] if the seller is a merchant with respect to goods of that kind.”
Utah Code Ann. § 70A-2-314(1). As discussed above with respect to an express warranty, it
would be unjust to recognize a rule that would permit manufacturers of goods to represent that
goods possess qualities they do not possess, and then deny the customer to recover damages
because there is no privity of contract existing between the consumer and the manufacturer.
To be merchantable, goods must, at a minimum, satisfy certain criteria, including that
they “pass without objection in the trade under the contract description; be “of fair average
quality within the description”; be “fit for the ordinary purposes for which such goods are used”;
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“run, within the variations permitted by the agreement, of even kind, quality, or quantity within
each unit and among all units involved”; be “adequately contained, packaged and labeled as the
agreement may require”; and “conform to the promises or affirmations of fact made on the
container or label.” Utah Code Ann. § 70A-2-314(2)(a)-(f). The Stembridges have submitted
evidence that Rangen’s crumlets breached these implied warranties of merchantability because
the Reproduction Crumlets did not contain the fat and vitamin E described on the label and the
Lactation Crumlets were adulterated by the addition of monensin with no listing of such on the
label. This evidence is sufficient to survive summary judgment on the implied warranty claim.
II. Strict Product Liability, Negligence, and Negligent Misrepresentation Claims
A. Causation
Regardless of the theory, Rangen contends that the Stembridges cannot show that the feed
caused their losses because the Stembridges’ expert, Dr. Hildebrandt, provides opinions that lack
both factual and scientific bases. Dr. Hildebrandt’s expert reports detail his theory for
determining that the Reproduction Crumlets and Lactation Crumlets caused the Stembridges’
losses. Contrary to Rangen’s position, the court does not believe this is a case where the expert
testimony can be found to be wholly inadmissible. As discussed above, Rangen’s criticisms
relate to the weight to be accorded to, and not the admissibility of, Dr. Hildebrandt’s opinions.
The disputed question of causation is a question of fact that cannot be resolved by the
court based on the record before it. Summary judgment on a negligence claim can only be
granted in the clearest of circumstances. “It is only when the facts are undisputed and but one
reasonable conclusion can be drawn therefrom” that proximate cause can become a question of
law. Apache Tank lines v. Cheney, 706 P.2d 614, 615 (Utah 1985). “[W]hen there is doubt
about the matter, it should be resolved in favor of permitting the party to go to trial.” Rees v.
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Albertson’s, Inc., 587 P.2d 130, 133 (Utah 1978).
Rangen seeks to impose a higher burden of proof than is required by Utah law. The
Stembridges need not prove causation with the level of precision advocated by Rangen and can
instead prove causation circumstantially. In Alder v. Bayer Corp., the court held that causation
was an issue for the jury when there were “allegations of daily exposure during the period in
which symptoms developed to substances documented as causative agents for the specific harm
alleged.” 2002 UT 115, ¶ 75. Where the plaintiffs show that the symptoms experienced are
documented in connection with exposure to the chemical at issue, “[a]ny argument that their
illnesses stem from other causes creates an issue of triable fact.” Id. at ¶ 84.
Causation has been found to be a jury questions in less compelling circumstances.
Rangen has not proffered an alternative explanation of the Stembridges’ losses. Rather, it
criticizes the Stembridges’ theory of causation pointing to conflicting test results and an absence
in Dr. Hildebrandt’s reports of analysis regarding vitamin E depletion rates and minks’ Vitamin
E requirements. Rangen’s critique, however, goes to the weight of the Stembridges’ evidence
and does not show either an absence of a genuine dispute of material fact or that Rangen is
entitled to judgment as a matter of law. The court cannot place an emphasis on tests that are
favorable to Rangen when the standard for summary judgment requires the court to view the
evidence in a light favorable to the nonmoving party. In fact, the court cannot weigh disputed
facts and evidence on summary judgment.
Moreover, regardless of Dr. Hildebrandt’s opinions, the Stembridges have otherwise
provided sufficient and adequate evidence of causation to create genuine disputes of material fact
as to the cause of the Stembridges’ losses. The Stembridges have submitted evidence that the
only farmers that experienced losses comparable to the Stembridges also fed National Feeds’
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crumlet to their mink. Medical and laboratory evidence exists that allow the jury to conclude that
the losses were caused by the crumlets. Rangen’s expert admitted that monensin is toxic to mink
and other evidence from his deposition is available regarding the causes and symptoms of
Vitamin E deficiency and ionophore toxicity. This evidence, combined with the timing of the
losses and the Stembridges’ physical observations, is sufficient to allow a jury to determine
causation even without Dr. Hildebrandt’s opinion. Accordingly, Rangen is not entitled to
summary judgment as to causation.
B. Negligence Per Se
Furthermore, Rangen’s alleged violation of federal and state feed laws can be determined
to be prima facie evidence of negligence and provides evidence sufficient to withstand Rangen’s
motion for summary judgment on the Stembridges’ negligence claim. “As a general rule,
violation of a standard of safety set by statute or ordinance is prima facie evidence of
negligence.” Hall v. Warren, 632 P.2d 848, 850 (Utah 1981). “Prima facie evidence is ‘that
quantum of evidence that suffices for proof of a particular fact until the fact is contradicted by
other evidence.” Child v. Gonda, 972 P.2d 425, 432 (Utah 1998).
Rangen’s alleged violation of commercial feed law could be considered negligence per
se. “Negligence per se, which usually results from the violation of a statute, is defined as
‘conduct, whether of action or omission, which may be declared and treated as negligence
without any argument or proof as to the particular surrounding circumstances.” Child, 972 P.2d
at 432. A statutory provision may be adopted as the standard of conduct for a reasonable person
if the statute’s purpose, in whole or in part, is : “(a) to protect a class of persons which includes
the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and
(c) to protect the particular interest against the kind of harm which has resulted, and (d) to protect
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that interest against the particular hazard from which the harm results.” Rollins v. Peterson, 813
P.2d 1156, 1163 (Utah 1991). Before a statute can be used to impose a tort duty, the statute’s
purpose must be to protect a class of persons of which the plaintiffs are members and to protect
against the type of harm experienced. See id. at 1163-64.
The commercial feed statutes are intended to protect against the particular kind of harm
and the particular hazard that the Stembridges allege caused their minks deaths. See White v.
Rose, 241 F.2d 94 (10th Cir. 1957) (reviewing Colorado commercial feed law and concluding that
plaintiff’s loss of cattle after feeding adulterated feed was “the very kind [of injury] that the
statute was intended to prevent.”). The Stembridges, as the ultimate recipients of the crumlets,
are within the class of persons whose interest is to be protected by the statutes. The statutes
expressly proscribe the distribution of adulterated feed. The failure of the feed to meet the label
guarantees and to identify all of the ingredients and drugs exacerbated the minks propensity to
become vitamin E deficient and immunosuppressed by having inadequate vitamin E available to
protect against the monensin. Under these circumstances, there is a question of fact as to
whether Rangen’s alleged failure to comply with the commercial feed statutes was negligence per
se.
C. Negligent Misrepresentation
Rangen claims that the Stembridges have no cause of action for negligent
misrepresentation under Utah law. Under Utah law, the party from whom recovery is sought
must actually misrepresent a material fact. Jardine v. Brunswick, 423 P.2d 659, 663 (1967). In
this case, however, Rangen contends that it made no representations to the Stembridges because
none of the Stembridges ever spoke to anyone at Rangen. To the extent that the Stembridges
claim that Rangen made representations on the shipping documents, Rangen argues that the
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shipping documents do not provide a warranty because Rangen did not sell the feed. Moreover,
Rangen argues that it applied National Feeds’ label so the label cannot be considered a
representation by Rangen.
The Stembridges have submitted evidence that the Reproduction Crumlets and Lactation
Crumlets did not conform to their label description as required by state and federal law. This
failure can constitute a negligent misrepresentation. Utah law provides that “a party injured by
reasonable reliance upon a second party’s careless or negligent misrepresentation of a material
fact may recover damages resulting from that injury” if “the second party had a pecuniary interest
in the transaction, was in a superior position to know the material facts, and should have
reasonably foreseen that the injured party was likely to rely upon the fact.” Price-Orem Inc. Co.
v. Rollins, Brown and Gunnell, Inc., 713 P.2d 55, 59 (Utah 1986). “Privity of contract is not a
necessary prerequisite to liability.” Id.
In this case, Rangen knew that the Lactation and Reproduction Crumlets were being
manufactured for the Stembridges and could have reasonably foreseen that the Stembridges
would rely on Rangen’s representation that the crumlets would conform to their label
descriptions. Whether Rangen authored the labels with which it failed to comply is irrelevant to
the analysis. Rangen stated that its feed would comply with the label and it agreed to such with
National Feeds. Rangen did not need to make the label to have the duty. It made the feed and
put the label on the feed. Therefore, state and federal law required it to comply with the
obligations to make sure the feed was properly labeled.
In addition, Rangen asserts that, to the extent that the Stembridges claim that the label on
the feed presented a representation, the Stembridges cannot show how the feed caused harm to
the mink. As discussed above, there is a question of fact as to the causation issue. Moreover, the
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Stembridges assert that if the labels had been correct, they would have acted differently.
Accordingly, the court concludes that there is no basis for granting Rangen summary judgment
on the Stembridges’ negligent misrepresentation claim.
D. Strict Product Liability Claims
In addition to causation, a plaintiff seeking to recover under a theory of strict product
liability must also show that the product was unreasonably dangerous at the time it left Rangen’s
facilities. Niemela v. Imperial Manufacturing, Inc., 263 P.3d 1191, 1195 (Utah Ct. App. 2011).
Rangen contends that the Stembridges do not have sufficient evidence to meet this standard.
However, the Stembridges claim that the feed was defective because of rancidity, low fact, and
borderline vitamin E in the Reproduction Crumlets and monensin in the Lactation Crumlets. The
Stembridges argue that the Reproduction Crumlet and Lactation Crumlet were unreasonably
dangerous because of their design, manufacturing, and Rangen’s failure to provide adequate
warnings regarding the use of the crumlets. Niemela, 2011 UT App. 333, ¶ 8.
“‘[U]nreasonably dangerous’ means that the product was dangerous to an extent beyond
which would be contemplated by the ordinary and prudent buyer, consumer, or user of that
product in that community considering the product’s characteristics, propensities, risks, dangers,
and uses together with any actual knowledge, training, or experience possessed by that particular
buyer, user, or consumer.” Utah Code Ann. § 78B-6-702. The Stembridges argue that the
manufacturing defects in the crumlets caused them to be unreasonably dangerous because an
ordinary and prudent mink rancher would not expect supplemental crumlet, which is marketed as
a complete feed, to cause vitamin E deficiency, immunosuppression, death, and diminished
production. An ordinary mink rancher would not assume that the Reproduction Crumlet had
insufficient levels of vitamin E and fat or that the Lactation Crumlet contained monensin, which
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is not approved for use in mink, potentially toxic, and can cause the mink to deplete their
available vitamin E. In response, Rangen takes issue with the test results relied upon by the
Stembridges and the theory that the monensin levels of the Lactation Crumlets were high enough
to cause toxicity. These disputes, however, raise questions of fact to be determined at trial by a
jury. They do not provide a basis for summary judgment.
The Stembridges also assert that the crumlets were also unreasonably dangerous because
Rangen failed to provide adequate warnings. “Where a manufacturer knows or should know of a
risk associated with its product, the absence or inadequacy of warnings renders that product
‘unreasonably dangerous,’ subjecting the manufacturer to strict liability.” House v. Armour of
Am., Inc. , 929 P.2d 340, 343 (Utah 1996). The Stembridges contend that Rangen should have
undertaken quality control testing and that with such testing Rangen should have known that the
crumlets did not meet the label guarantees and were adulterated with monensin. The only
language on the Reproduction Crumlet that could be construed as a warning was a statement
suggesting that the mink could lose too much weight. The Lactation Crumlet failed to contain a
warning that the product contained monensin and failed to identify it as an ingredient.
Under Utah law, the Stembridges are entitled to a presumption that they would have
heeded an adequate warning. The Stembridges assert that had they been adequately warned, they
would not have fed their mink the crumlets or they would have taken other precautions.
Therefore, the court concludes that Rangen is not entitled to summary judgment on the
Stembridges’ strict product liability claim.
CONCLUSION
Based on the above reasoning, Defendant Rangen’s Motion to Exclude Expert Testimony
is DENIED and Defendant Rangen’s Motion for Summary Judgment is DENIED.
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Dated this 23rd day of September, 2013.
BY THE COURT:

_______________________________
Dale A. Kimball,
United States District Judge

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