Glen L. Hancock, Plaintiff/Appellant v. William and Ruth Shook, d/b/a Barnes Feed Store, Defendants/Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: Glen L. Hancock, Plaintiff/Appellant v. William and Ruth Shook, d/b/a Barnes Feed Store, Defendants/Respondents. Case Number: 23775 Handdown Date: 04/30/2002 Appeal From: Circuit Court of Greene County, Hon. Calvin R. Holden Counsel for Appellant: Timothy E. Gammon Counsel for Respondent: John Housley and Joanne Spears Jackson Opinion Summary: None Citation: Opinion Author: Phillip R. Garrison, Presiding Judge Opinion Vote: REVERSED AND REMANDED. Parrish, J., - concurs. Rahmeyer, J., - dissents in separate opinion Opinion: This appeal is from a judgment entered on a jury verdict in favor of Glen L. Hancock ("Plaintiff") in his suit against William and Ruth Shook, d/b/a Barnes Feed Store ("Defendants" or "Defendant Shook" when referring to William Shook). Plaintiff, a dairy farmer, alleged that Defendants sold him feed for his dairy cattle that was adulterated with unacceptable levels of alfatoxins.(FN1) Although the petition was originally in five counts, the only count submitted to the jury was for breach of an implied warranty. The jury returned a verdict for Plaintiff in the amount of $12, 500. Plaintiff appeals. In Plaintiff's first point relied on,(FN2) he contends that the trial court committed reversible error in refusing to ask either of two questions submitted by jurors directed to one of Plaintiff's expert witnesses. The witness was Dr. John Mozier ("Dr. Mozier"), a veterinarian, who had treated Plaintiff's herd for a number of years. Extensive background information is necessary, however, in considering this point. The evidence made it clear that a critical date with reference to Plaintiff's claim was March 12, 1992. The

evidence indicated that feed delivered by Defendants to Plaintiff's farm in one or more of three deliveries prior to March 12, 1992 was contaminated with aflatoxin. The presence of unacceptable levels of aflatoxin was discovered as a result of tests on March 12 of the feed sold by Defendants to Plaintiff as well as other dairy farmers. Plaintiff was made aware of that fact, and the contaminated feed was apparently removed from his herd that same day. He subsequently filed this suit for damages he claimed to have sustained as a result of his cows consuming the contaminated feed. Plaintiff had almost 36,000 pounds of his milk production dumped between March 12 and March 15, 1992, because of its aflatoxin content, and evidence indicated that for that month, he averaged 623 pounds less milk each day after March 12 than before. When asked if there were noticeable changes in his herd after March 12, 1992, Plaintiff referred to several types of conditions or symptoms in his herd that he had not experienced before March 12, including the fact that three cows aborted "just immediately." He also said that he culled 126 cows from his herd in the months following March 1992, which he attributed to the aflatoxin incident. He testified that his claim for damages was primarily the 126 culls from his herd, the loss of the milk (he said that the cows averaged 50 pounds of milk per day), and calf loss. At the close of Plaintiff's testimony, the jury submitted questions to the court. Although the record here does not include any discussions or rulings concerning the asking of juror questions during trial, the trial court obviously authorized or approved of the concept because it customarily asked the jurors to write out questions they had at the conclusion of each witness's testimony and submit them to the court. One of the questions posed by a juror for submission to Plaintiff was, "How common are abortions with cows?" The trial court initially indicated, outside the hearing of the jury, that this question was for the veterinarian, but later said, "I'll rearrange the question and ask him, in '91, how often did your cows abort in your herd? Is that acceptable? Because if I just ask him how often do cows abort, we're going to get some long answer." Defendants' counsel asked the trial court, "Why don't you just ask him if he'd ever had any abortions prior to March of 1992?" After Plaintiff's counsel said that Plaintiff would testify that he had had abortions prior to that time, he said, "This goes to how common - - the fact that he had three right after the aflatoxin." The trial court said, "It's more of a question for the experts as to did the aflatoxin cause the - - but I'll ask him did he have abortions prior to the aflatoxin," and said, "And then let Mozier follow up with, or whoever." The question posed to Plaintiff by the trial court in the presence of the jury was, "[p]rior to 1992, did you have cows that did have abortions in your herd, say in '91?" Plaintiff's answer was "I'm sure that I did because on a rare occasion we will have something abort, yes." Plaintiff then called Dr. Mozier. He described aflatoxin as a potent naturally found carcinogen, and testified about the effects of the ingestion of aflatoxin by lactating dairy cattle. Among the effects he described were hemorrhaging,

diarrhea, death, an unhealthy appearance, reproductive problems, and their milk production is lost because of residues in the milk. He said that one of the consequences of aflatoxin ingestion is the need to cull affected animals from the herd, and expressed his opinion that the 126 culls from Plaintiff's herd after March 1992 resulted from aflatoxin ingestion. Dr. Mozier also said that there was an increase in abortions in Plaintiff's herd after the aflatoxin incident, and he particularly referred to an episode shown on his invoices to Plaintiff in March 1992 when three cows aborted within a short period of time. The invoice he produced, however, did not indicate the specific day in March when he examined and treated those cows. Defendants, on cross examination, obtained Dr. Mozier's concession that he could not tell whether he made the farm visit for the aborted cows "before or after March 12th of 1992," and therefore "whether it was before or after the aflatoxin incident." This testimony set the stage for a question submitted by one of the jurors, and ultimately for the two juror questions that are the subject of this point. At the conclusion of Dr. Mozier's testimony, the trial court again invited the jury to write out any questions they had. One question was "Is there any other way to figure out the doses - - the date of the farm visit with the three aborted cows?" The trial court made the observation out of the hearing of the jury that "I assume you two would have figured this out by now if there was some other way to find out the date with this witness," to which Plaintiff's counsel responded, "Well, you can ask him. He might --" and the trial court said, "I'll ask him." The trial court then asked Dr. Mozier, in the hearing of the jury, "Do you know of any other way to figure out the date of the farm visit with the three aborted cows than what we've already asked you about here today?" Dr. Mozier responded, "I can certainly try to. I may have a way by finding the blood samples in that particular day, and I might be able to find that record. I can do that this evening at the office. I might be able to find out that way." Dr. Michael Gardner, another veterinarian, also testified for Plaintiff. He said that an increased incidence of abortions was one of the effects of aflatoxin in cows, and, although it would not prove aflatoxin, three abortions in a herd within a week of being given aflatoxin would be unusually high. In this case, based on his review of the evidence, he gave his opinion that aflatoxin caused the problems in Plaintiff's herd. Two days after Dr. Mozier testified, Plaintiff's counsel referred the trial court to Dr. Mozier's testimony concerning the missing date on the ticket for the farm visit relating to the three abortions. He pointed out that Defendant's counsel had demonstrated that Dr. Mozier could not say from his memory whether the three abortions he referred to were before or after March 12. Plaintiff's counsel also pointed out that Dr. Mozier testified in response to a juror's question that he thought there might be a way by looking at other records to determine the date of the visit for the three abortions. Counsel then announced that Dr. Mozier had done that, but was unable to appear that day, which was apparently the last

day of Plaintiff's case in chief. Plaintiff's counsel suggested two alternatives, to wit: the parties could stipulate to the information given by Dr. Mozier to him that there is a written record that shows that the farm visit in question occurred on March 14; or he could be present the next day, out of turn, after Defendants started their case. The trial court responded that the issue really was not whether the juror had asked the question, it was really whether the trial court "would . . . allow you in any trial to reopen - - to hold open your evidence and bring back in evidence that he - - . . . that he later went out and found because of the cross-examination." Defendant's counsel also argued that the records showing the date had not been produced in response to discovery requests. Plaintiff's counsel argued that Dr. Mozier had testified in front of the jury that he could get the information, and "I think that's very unfair to give them the inference that, you know, he didn't have that evidence because of the question." When the trial court responded that "[y]ou did not disclose it in the request for production of documents first," Plaintiff's counsel responded that "[w]e didn't know he had it." The trial court then recited that the date was missing on Dr. Mozier's ticket about the three abortions, and Dr. Mozier said that he could not be certain of the date based on the ticket. Continuing, he said, "That's the way it was left for the jury. It's for them to decide when they think the factual issue occurred about the abortions. Now you should have produced, and you should have known that may be an issue. If you looked at the tickets and saw there was no date on it, you should have known that could be an issue. But here's my ruling. You're not going to be able to bring him back just like I wouldn't let you bring any other witness back after they've been impeached and say oh, I went out and found some more stuff to show you that I'm right. That's not the way trials are done. Now if it comes up and it is proper rebuttal testimony, I'll rule on it then. But at this point you're not allowed to bring him back to say well, I've went out and done more research and now I can prove my theory." In this case, Defendants called several dairymen who had also purchased contaminated feed from them during the period in question. These witnesses testified that while they had their milk dumped for a few days after the discovery of aflatoxin, their herds experienced no other health problems associated with the incident. Defendants' counsel established with four of those witnesses that they had not experienced any problem with, or increases in, abortions after the aflatoxin incident. Defendants used the data from the other herds involved in the aflatoxin contamination to demonstrate through Dr. Gavin Meerdink ("Dr. Meerdink"), a veterinarian at the College of Veterinary Medicine at the University of Illinois, that the levels of aflatoxin found in Plaintiff's cattle following the feeding of the contaminated feed was no higher, and in fact in many cases, lower than the other herds exposed to the contaminated feed. Dr. Meerdink also said that he examined Dr. Mozier's records on Plaintiff's herd and saw no clinical signs in the period of six weeks after the ingestion of the

contaminated feed that he would consider as having been caused by aflatoxin. He gave his opinion that Plaintiff's herd suffered no ill effects from the aflatoxin. On cross-examination, Dr. Meerdink said that he had not seen Dr. Mozier's invoice concerning the three abortions, but that assuming those abortions occurred within a week after the aflatoxin ingestion, it would not have changed his opinion because Plaintiff had an abortion in the preceding month, and "you've got to look at each of these on an individual basis and come up with probabilities." When asked if abortions would be a clinical sign of aflatoxin, Dr. Meerdink said that "[a]t a certain point you can cause abortion but the group of us that meet every year and talk about this, this comes up every so often. And the consensus of opinion is that aflatoxin is not what you'd call an abortatation agent. Can it do it? Sure."(FN3) Another of Defendants' experts, Dr. Don Rollins, a veterinarian, testified that from his review of the records, he could see no evidence of damage as a result of the aflatoxin incident. He did acknowledge that a sufficiently high dose of aflatoxin that caused the cow to be severely affected could result in an abortion, but said that abortions can result from viruses, and he would not expect any abortions resulting from the level of aflatoxin found in Plaintiff's herd. Defendants did not deny having sold Plaintiff contaminated feed, and in fact contacted the affected farmers, including Plaintiff, to tell them of their discovery that the corn used in that feed contained excessive levels of aflatoxin. When Plaintiff's counsel posed the question to Defendant Shook that "[y]ou do not dispute the damages that [Plaintiff] claims, at least as to the dumped milk, do you?" he answered, "No, I don't dispute the milk loss, the dump loss." He did not concede Plaintiff's other claimed damages related to the aflatoxin. Plaintiff called Dr. Stan Casteel ("Dr. Casteel"), a veterinary toxicologist, in rebuttal. Dr. Casteel testified that from the level of aflatoxin found in Plaintiff's milk production during the period in question, he would expect adverse effects in the herd. When asked if three abortions within a week after aflatoxins were ingested would be a sign of adverse affects from that toxin, he said that it wouldn't surprise him that it was directly connected with the aflatoxin. He said that that has been reported in the literature, and that since the fetus is much more sensitive to such a potent compound, the aflatoxin probably would have killed the fetus causing an abortion. In fact, after being asked a hypothetical question assuming three abortions within a week after the aflatoxin incident, Dr. Casteel testified that in his opinion, with the levels of aflatoxin demonstrated in the milk produced by Plaintiff's cows, aflatoxin was involved in producing adverse affects in Plaintiff's cows. Plaintiff then called Dr. Mozier in rebuttal. During cross-examination, Defendant continued to attack Plaintiff's damage claim by establishing that Plaintiff had experienced health problems with his herd prior to March 12 including problems with milk production, reproduction, somatic cell count increases, and mastitis. At the conclusion of Dr. Mozier's

testimony, the trial court invited jurors to write and submit to the court any questions they might have. The following were submitted by the jury: [D]id Dr. Mozier look up the date for the 3 aborted calves on [Plaintiff's] farm[?] He said he could look for the date on lab results. Did you find the blood tests on the cows that had the abortions? [I]f so, what were the dates that the tests were given? These questions, which the trial court refused to propound to Dr. Mozier, are the subject of this point. They clearly relate to the juror question submitted by the trial court to Dr. Mozier during Plaintiff's case in chief when he testified that he might be able to ascertain the date of the three abortions. As indicated earlier, the trial court had first informed Plaintiff's counsel that he would not permit him to call Dr. Mozier out of turn to provide the information he had gathered in response to the first juror question because permitting a witness to do additional research after being cross-examined is "not the way trials are done." Defendants' counsel had also argued that Plaintiff had not produced the records that Dr. Mozier had consulted after the initial juror question. In support, Defendants' counsel informed the trial court that they had served requests for production on Plaintiff, and also obtained documents directly from Dr. Mozier, presumably pursuant to an authorization,(FN4) but had not been furnished them. Plaintiff's counsel argued to the trial court at that time, that they had not known that Dr. Mozier had the record he subsequently reviewed to determine that the date of the visit for the three abortions was March 14, 1992. Then when the other two jurors submitted questions concerning the same subject, the trial court ruled that they would not be posed to Dr. Mozier because Plaintiff had not produced the records that Dr. Mozier had consulted after the first juror question.(FN5) The issue raised in this point is not the propriety, or lack thereof, of permitting juror questions. Accordingly, that is not an issue before us, or on which we express any opinion. Instead, the issue raised in this point is whether the failure to ask the two juror questions submitted after Dr. Mozier's rebuttal testimony was an abuse of discretion. An abuse of discretion occurs when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration. Nelson v. Waxman, 9 S.W.3d 601, 604 (Mo. banc 2000). With reference to the trial court's ruling, we note that there is nothing in the record indicating that Plaintiff ever had possession, control, or even knowledge of the records consulted by Dr. Mozier. It was not Plaintiff's duty to furnish Defendants with records solely in the possession of a third party where those records were equally available to both litigants from that third party, such as through an authorization. See Brotherton v. Burlington Northern R.R., 672 S.W.2d 133, 136 (Mo.App. E.D. 1984). See also Rule 58.01(a), Missouri Rules of Civil Procedure (2001), which imposes

a duty on a party to produce, pursuant to a request for production, documents "which are in the possession, custody or control of the party upon whom the request is served." Our supreme court has said that in exercising its discretion concerning juror questions, the trial court should view the questions in the context of the entire trial. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 867 (Mo. banc 1993). Here, although the issue of liability was submitted to the jury, the most hotly contested issue was whether Plaintiff had sustained damage as a consequence of health problems in his dairy herd caused by the aflatoxin, and, if so, how much. It was Defendants' theory that Plaintiff sustained no damage other than the dumped milk. They sought to establish that fact by experts who testified that they perceived no adverse affects in Plaintiff's herd after the aflatoxin incident based on the records they reviewed, and also upon the testimony of other dairymen who fed similar feed that they perceived no adverse affects in their herds. As a part of that evidence, Defendants presented evidence that abortions do normally occur in dairy herds, and that the other dairymen did not experience increased abortions after the aflatoxin ingestion. On the other hand, Plaintiff presented evidence that if the three abortions occurred shortly after the aflatoxin incident, it would be an indication of adverse health affects from the contaminated feed. Therefore, whether the three abortions in question occurred before or after March 11 or 12, 1992 became of some significance in determining whether Plaintiff's herd in fact experienced adverse health affects and consequently whether Plaintiff suffered the damage he claimed. Some members of the jury obviously believed the timing of the abortions was significant in determining whether Plaintiff had suffered damage from the aflatoxin in addition to the dumping of milk. Pursuant to Callahan, the trial court here, having determined to invite jury questions, and having presented one to Dr. Mozier about the ability to determine the date of his farm visit concerning the three abortions, should have, considering the content of the evidence and the significance of the timing of the three abortions, submitted the later juror questions concerning the same subject to Dr. Mozier. Defendant now argues that no offer of proof was made, and therefore, the issue was not preserved for appeal. First, we note that the juror questions are just that: questions posed by jurors. They are not questions posed by a party, and therefore do not arise from the traditional basis upon which offers of proof are required. Secondly, it is significant here that Dr. Mozier was not permitted to answer the two juror questions as a sanction for Plaintiff's failure to produce the documents or materials that he consulted in response to the first juror question. Even though an offer of proof may be otherwise required (unless an exception to the general rule applies) when evidence is excluded on evidentiary grounds, it is meaningless and irrelevant when testimony is refused as a sanction. See State ex rel. Missouri Highway and Transp. Comm'n v. McDonald's Corp., 872 S.W.2d 108, 114 (Mo.App. E.D. 1994), where the court said that "[t]he complete exclusion of what may have been probative evidence without consideration of whether it would be admissible,

removes the need for an offer of proof to fully inform the trial court on matters of admissibility. Offers of proof are irrelevant when refusing testimony as a sanction." Additionally, we are not convinced that a sufficient offer of proof was not made, even if it could be considered as having been required. There was never a dispute about what Dr. Mozier would have said in response to the two questions. Plaintiff's counsel had earlier informed the court and Defendants' counsel that Dr. Mozier had reviewed a document in response to the first juror's question that showed that the blood samples for that visit were collected on March 14th. The only dispute was the trial court's concern about the propriety of permitting a witness to again testify after reviewing other materials following cross-examination, and also Defendants' contention that the documents or matters reviewed by Dr. Mozier had not been produced in discovery. While the preferred method of making an offer of proof is to place the witness on the stand out of the hearing of the jury and make a record by posing the questions and obtaining the witness's answers, there are times when a narrative offer of proof by counsel is sufficient. Id. In Hawkinson Tread Tire Service Co. v. Walker, 715 S.W.2d 335, 336 (Mo.App. E.D. 1986), the court said that the only exception to an offer of proof requirement exists when the excluded testimony is completely understood through the record, is objected to as a category of evidence rather than as specific testimony, and the record reveals that the evidence would have helped the party which put it forth. "This narrow exception recognizes that the purpose behind the offer of proof is to insure that the trial court has a clear understanding of the evidence it rules upon and that the appellate court has a specific record to review. If the testimony is known to all parties, then an offer of proof is unnecessary." Id. See also Barnes v. Kissell, 861 S.W.2d 614, 617-18 (Mo.App. W.D. 1993)("the formality [of an offer of proof] does not exist if the trial court and counsel are sufficiently advised as to what the testimony of the witness will probably be if he is allowed to testify."). Based on the above, we hold that an offer of proof was not required in these circumstances or, if it was, a sufficient one was made by Plaintiff. This portion of Defendants' argument in response to the first point is without merit. Defendants also argue that Plaintiff received a verdict, therefore the jury must have found causation, and consequently there can be no prejudice. It is true that under an abuse of discretion standard, the appellant bears the burden of showing an abuse of discretion and prejudice. Cotner Prods, Inc. v. Snadon, 990 S.W.2d 92, 102 (Mo.App. S.D. 1999). It is also true that the exclusion of evidence is harmless if the same facts have been shown by other evidence or exhibits. See King v. Copp Trucking, Inc., 853 S.W.2d 304, 307 (Mo.App. W.D. 1993). In the instant case, Plaintiff testified that he had three abortions in his herd almost immediately after March 12. Again, this is a unique case involving juror questions and not an issue of exclusion of evidence offered by a party. As

recited above, the major issue in the case was whether Plaintiff's herd suffered health problems following the aflatoxin incident, in addition to the dumping of milk for a few days, which resulted in his culling 126 cows from his herd. Defendant demonstrated that abortions occur in dairy herds without the involvement of aflatoxin, and also that other dairymen who fed feed from the same place did not experience increased abortions afterward. Obviously, jurors were concerned about whether the three abortions referred to by Plaintiff and Dr. Mozier occurred before or after the aflatoxin ingestion. By the evidence, consideration of the abortions was linked to the validity of Plaintiff's damage claim. Obviously, the jurors felt the same way, and even at the close of the evidence, they still wanted to know if the farm visit for the three abortions was before or after the ingestion of aflatoxin. While Plaintiff received a verdict in this case, it was for only $12,500 as opposed to the approximately $600,000 he sought. It is obvious that the jury did not attempt to compensate him for the culling of 126 cows from his herd, or for the projected loss of milk and calves from those cows for which Plaintiff claimed damages. There was, however, a demonstrable loss of milk caused by it being dumped until it cleared of aflatoxin residuals, a matter not disputed. Plaintiff also claimed a lowered milk production for at least two-thirds of a month after the aflatoxin incident. It is entirely possible that the jury attempted to compensate Plaintiff only for the milk loss and nothing for the other damages claimed by him and to which the abortion evidence was directed. We hold that it was an abuse of discretion, under the facts of this case, to have failed to submit the two subsequent juror questions to Dr. Mozier for his response. Having posed the original juror question to Dr. Mozier on the subject, and the jury having heard his response that he might be able to determine the day of the farm visit for the three abortions by finding the blood samples for that particular day, and that he would do so that evening, the trial court should have posed the later two questions on the same subject. This is an example of the hazards necessarily associated with juror questions. There is no controlling what the witnesses' answers may be. In this case, it was imprudent to assume that Dr. Mozier would say that there was no way for him to determine the particular date for that farm visit. Since he was asked and said that he might be able to do so, the trial court should have permitted the last two juror questions to be posed to Dr. Mozier. In so holding, we consider that the subject of abortions in herds having been fed aflatoxin was pervasive throughout the trial; that Plaintiff relied on the contention that the three abortions occurred after the aflatoxin incident in attempting to prove the cause of his claimed damage; that Defendants relied in part on the absence of increased abortions in other herds after ingesting aflatoxin to dispute Plaintiff's claims; and that two jurors remembered the earlier question posed to Dr. Mozier, his answer to that question, and after having heard the evidence, still wanted an answer. Having permitted the subject to be opened by the first juror question, it was an abuse of discretion under these

circumstances to refuse to permit it to be followed up through the last two questions. We believe the failure to do so was prejudicial to Plaintiff, requiring a new trial. While Plaintiff requests a new trial on the issue of damages only, the juror questions referred to went to issues of both liability and damages. Therefore, the judgment is reversed and the case is remanded to the trial court for a new trial on all issues. Footnotes: FN1.We assume that Plaintiff was referring to "aflatoxin" which was the term used in the evidence at trial. One of the witnesses described it as a toxin produced by mold or funguses; that it is one of the most potent carcinogens known; and that it is toxic enough that it has been produced for chemical warfare. FN2.On this appeal Plaintiff presents eight points relied on. The first is dispositive. Accordingly, we do not reach the other seven. FN3.The dissent says that, "The fact that the abortions took place so quickly after the ingestion also discounted aflatoxin as the cause, since abortions, if they occur, would only be expected sometime later, after the long- range effects of higher doses, such as liver disease took hold." This statement is apparently prompted by testimony of Dr. Meerdink, which followed the testimony set out above, when he said, "But probably some time past all this other insult to this cow and liver disease and so forth. But does aflatoxin just kind of work its way in there, cross the placental barrier and surgically kill that fetus? It doesn't seem to work out that way." Even if this testimony has the meaning ascribed to it by the dissent, it was, of course, Dr. Meerdink's opinion, which was contrary to Plaintiff's theory of the case, and which the jury was not required to believe. FN4.Defendants concede in their brief that they received an authorization from Plaintiff to allow them to obtain Dr. Mozier's veterinary records. The record does not disclose what they requested from him. FN5.The dissent argues, in support of the trial court's ruling, that the answers to the two juror questions at issue here would have been improper rebuttal evidence. This basis for affirming the trial court, however, is not presented here by Defendants. Additionally, this is an issue of permitting two juror questions to be asked as follow-ups to an earlier one posed during Plaintiff's case in chief, and not of evidence offered by Plaintiff. FN6.The argument section for Point I, provided by Plaintiff in his brief, is largely devoid of transcript and legal file references. This is a violation of Rule 84.04(i), Missouri Court Rules 2002, and a violation that forced both the majority and the dissent to scour the record in an attempt to determine the factual basis for Plaintiff's claim of error, and could have provided a basis for us to decline review of the point. Williams v. Williams, 55 S.W.3d 405, 417-18 (Mo.App. W.D. 2001). In addition, Plaintiff's statement of facts violates the requirement of Rule 84.04(c) to present "a fair and concise statement of the facts relevant to the questions presented for determination without argument." This could have been considered a fatal defect as well. Garrett v. Missouri Department of Social Services, 57 S.W.3d 916, 918 (Mo.App. S.D. 2001). FN7.While the phrase appears to contain a misspelling, abortatation is the word attributed to Dr. Meerdink in the transcript and subsequently used by the parties in their briefs on appeal. Separate Opinion:

in Plaintiff's first point is not the propriety of permitting juror questions and that we, therefore, should not express an

opinion on that issue. However, the majority does express such an opinion, taking the trial court to task for allowing jury questions by indicating how the situation that occurred here was "an example of the hazards necessarily associated with juror questions." The majority further criticizes the use of juror questions, noting that there is no controlling how the witness will answer and that it is imprudent for the trial court to make assumptions in that regard. No opinion is necessary on this issue because, as the majority indicates, it is well established that it is within the trial court's discretion to either permit or deny the opportunity for jurors to ask questions. Callahan, 863 S.W.2d at 867. Within the instant case there were more than thirty questions asked by the jury and the trial court asked slightly less than half of those of the witnesses in the presence of the jury. Plaintiff's first point on appeal relates to two of the disallowed juror questions. The specific issue raised, which was framed correctly by the majority, is whether, under the facts of the case here, it was an abuse of discretion for the trial court to have failed to ask Dr. Mozier those two juror questions submitted after his rebuttal testimony. In general, rulings regarding the admissibility of testimony are reviewed under an abuse of discretion standard and "[s]uch abuse occurs only when the ruling is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful, deliberate consideration." Doe v. Alpha Therapeutic Corp., 3 S.W.3d 404, 421 (Mo.App. E.D. 1999). The same standard is used when reviewing rulings regarding the admissibility of rebuttal evidence. Bray v. Bi-State Development Corp., 949 S.W.2d 93, 100-01 (Mo.App. E.D. 1997). "A party is entitled to introduce evidence to rebut that of his adversary, and for this purpose any competent evidence to explain, repel, counteract, or disprove the adversary's proof is admissible. However, a party cannot, as a matter of right, offer in rebuttal evidence which was appropriate or should have been proffered in the case in chief, even if it tends to contradict or rebut the adverse party's evidence." Id. at 101 (citations omitted). Further, a trial court has broad discretion to exclude evidence that was not disclosed in response to valid discovery. Id. at 100. Within its ruling, the trial court specifically indicated that it would not allow Dr. Mozier to respond to the two jury questions because the records of the blood test results, which may have included the date or dates on which they were performed, had not been provided during discovery. The trial court based its ruling on Plaintiff's failure to produce the records in discovery as well as the fact that Dr. Mozier consistently testified that he could not remember the exact date of his visit to Plaintiff's farm, even though Plaintiff "asked him every way [Plaintiff] could [and] . . . . [h]e said he just couldn't remember for sure." The record shows that during cross-examination, re-direct, and re-cross, Dr. Mozier admitted that he was unable to remember the specific date and the sequence of numbers on the tickets were of little help to the

determination of the date because of his practice of sometimes documenting a visit using tickets at his office, but other times using tickets kept in his vehicle. Clearly, Plaintiff was seeking admission of new evidence supporting his theory during rebuttal. Had Plaintiff asked the question whether this expert had discovered "new evidence" supporting the timing of the veterinarian visit, the trial judge would have been justified in refusing the question. Furthermore, had Plaintiff come to court during rebuttal and announced that his expert had just "discovered" documentation supporting Plaintiff's case, it is doubtful that any appellate court would find that the trial court erred in refusing to allow the admission of the "new" evidence during rebuttal. This is especially true when Defendants properly requested the expert's documents. In my view, the trial court's action did not constitute error. Even if error did occur, it did not rise to the level of an abuse of discretion because both error and prejudice were not present. The majority opinion appears to lower the bar for the admission of answers to juror questions, as it states that juror questions "do not arise from the traditional basis upon which offers of proof are required." In other words, the majority presumes prejudice. I disagree. As correctly stated by the majority, under an abuse of discretion standard, the "appellant bears the burden of showing an abuse of discretion and prejudice." Cotner, 990 S.W.2d at 102. Further, when reviewing a trial court's refusal to admit evidence, such action constitutes reversible error only if it would have changed the result. Howe v. ALD Services, Inc., 941 S.W.2d 645, 654 (Mo.App. E.D. 1997). Plaintiff, as appellant in the case, bears the burden to show that "the evidence would have materially affected the merits of his . . . cause of action." Lay v. P & G Health Care, Inc., 37 S.W.3d 310, 328 (Mo.App. W.D. 2000). Plaintiff's argument is that, had the trial court allowed Dr. Mozier to respond to the two juror questions and, assuming he would have testified that the lab tests pinpointed the date of the visit as occurring after the aflatoxin ingestion, the jury's award of damages would have been higher. The trial court's refusal to ask Dr. Mozier the two juror questions created no prejudice against Plaintiff and allowing Dr. Mozier's response to the questions, even if the response was that the lab tests showed that the abortions occurred after the aflatoxin ingestion, would not have materially changed the result. The jury has broad discretion in fixing the amount of damages it awards to a successful party. Howe, 941 S.W.2d at 651. A jury award for damages will only be set aside upon a finding that it is "so shockingly meager as to indicate it resulted from arbitrary or prejudicial exercise of discretion." Id. When considering the adequacy of damages following a denial of a motion for new trial, as happened in the instant case, "[i]f the damages were returned on any rational assessment of the evidence, the trial court's discretion to deny a new trial was properly exercised, and the judgment will

be sustained on appeal." Id. Further, "there is substantial evidence to support the verdict where the award is responsive to the proof." Id. There was such substantial evidence in the case at bar, particularly when following the directive under which we work, which is to consider the evidence in the light most favorable to the prevailing party. Cotner, 990 S.W.2d at 98.(FN6) Plaintiff's dairy herd had various health problems before and after the aflatoxin ingestion, including loss of production of milk and other symptoms due to what was termed as the "molasses incident" from December 1990. Dr. Mozier also treated the herd for various illnesses in 1991, including metritis, enteritis, milk fever, mastitis, as well as feet and pregnancy problems. In January and February of 1992, the two months immediately preceding the aflatoxin ingestion, Dr. Mozier checked Plaintiff's herd for illness and injury, and also conducted pregnancy checks and delivered an aborted fetus. Overall, Dr. Mozier's records of visits to Plaintiff's farm showed that there were no new or different problems before March 1992 than there were after March 1992. Dr. Mozier made a total of 54 visits to Plaintiff's farm in 1991 and 43 in 1992. Plaintiff also testified that during 1991 and prior to the 1992 aflatoxin ingestion, he sold some of his herd for slaughter or for culls due to various health problems, including mastitis, feet problems, and pregnancy problems. Yet he testified that all of the cows sold after March 12, 1992 were culled due to the aflatoxin-contaminated feed. In addition, even given the alleged health problems experienced by his herd due to the aflatoxin, he informed none of the buyers of the aflatoxin contamination. Defendant Shook testified that Plaintiff and nine other farmers had purchased the aflatoxin-contaminated feed and that the complaints of the farmers (other than Plaintiff) were restricted to dumped milk. Dr. Mozier also testified that the difficulties experienced by the other farmers who contacted him were resolved after discontinuing the use of the contaminated feed and incorporating roughage into the diets of their herds. In addition, Dr. Mozier testified that he was not aware that the other farmers experienced any acute or death losses due to the contaminated feed. In fact, he was unaware of any direct losses suffered by the other farmers as he saw no other sick cows at the other farms because of the aflatoxin and made no aflatoxin-related diagnoses at those farms. However, Dr. Mozier and Defendant Shook were not the only ones who testified that the other farmers did not experience problems other than milk loss. The farmers verified that themselves. John Miller testified that he was compensated for having to dump milk for approximately a ten-day period and that there were no other health problems related to the incident that he could recall. He also could not recall any reduced milk production or problems with his herd conceiving because of the aflatoxin ingestion. Austin Tipton testified that he had to dump milk for four days, but that the herd experienced no other health problems or loss of production. Kenneth Abbott testified that he was required to dump milk for a day and a half and did not recall any other health problems or loss of production. William Crane testified that he dumped milk for five days, but that his herd experienced no more health problems than normal, including no increase in the number of abortions. James Stanton dumped milk for five days and noticed no unusual signs of illness in his herd or any loss of production or increase in

abortions. Plaintiff also admitted that the Department of Natural Resources ("DNR") charged him with numerous violations relating to water contaminated with animal waste leaving his property and flowing into the nearby rivers. These violations dated back to 1989. Approximately a year after the aflatoxin ingestion, the DNR issued an abatement order under which Plaintiff, according to his own testimony, was required to either fix the problem or remove the cattle from his property. Under a animal waste system management plan Plaintiff made with the DNR, he was allowed to construct and maintain a facility for one hundred dairy cows. At the time of the aflatoxin incident, Plaintiff testified that he had a herd of over 300 cows. Plaintiff also testified that he did not keep records as to how many cows he was milking, how many were pregnant, or how much milk those cows were producing at the time of the aflatoxin incident. Both Dr. Mozier and Dr. Meerdink, one of Defendants' expert witnesses, testified that April and May of 1992 were high milk production months for Plaintiff. In fact, May was the highest producing month for a two-year period. As for aflatoxin levels in the milk following the ingestion of the contaminated feed, the levels in the milk from Plaintiff's cows were the lowest among those tested. Dr. Mozier, who admitted his expertise in aflatoxin was obtained after this incident, testified that the effects of aflatoxin could include milk loss, reproduction problems, and a general unthrifty or poor appearance. He also agreed that there were many factors to which problems with pregnancy and milk production could be attributed. Dr. Meerdink testified that any adverse symptoms of aflatoxin should appear soon after the ingestion, and he saw no flurry of activity among Plaintiff's cows or changes in health problems. He also testified that cows that ingest large doses of aflatoxin over a long period of time could experience liver disease, which causes a cow's appetite to decrease. Dr. Meerdink saw no signs of liver problems in Plaintiff's cows, based on Dr. Mozier's records. In addition, there were no decreases in Plaintiff's purchase, and the cows' consumption, of feed. As for the cull rate of 126 over an eighteen or nineteen-month period, Dr. Meerdink testified that cull rates typically range from twenty to thirty percent, a figure to which James Stanton, one of the other farmers whose cows ingested the contaminated feed, agreed. According to Dr. Meerdink's assessment of Plaintiff's culling records, prior to March 1992, Plaintiff did not cull very many cows. Therefore, taking into account those years in which few cows were culled and the 126 culled in the eighteen or nineteen-month period, the average rate per year was twenty-six percent, well within the normal range. In effect, the years of culling perhaps too few may have caught up with Plaintiff. Dr. Meerdink also opined that culling, or selling, the cows based on the DNR complaints would have been a commendable reason to sell. As for the abortions, Dr. Meerdink cautioned against citing a cause and effect relationship between them and the

aflatoxin ingestion, since the consensus of opinion among the experts in his field was that aflatoxin is not an "abortatation agent."(FN7) The fact that the abortions took place so quickly after the ingestion also discounted aflatoxin as the cause, since abortions, if they occur, would only be expected sometime later, after the long-range effects of higher doses, such as liver disease took hold. Overall, there was ample evidence to provide a basis for the jury's damage award. One rational assessment of the evidence that would account for the amount of damages was that the jury determined only a small portion of Plaintiff's alleged damages were attributable to the aflatoxin ingestion, such as the milk dumping. Even without Dr. Mozier's response to the two jury questions, the jury may very well have believed that the abortions occurred after the ingestion, but they also may have believed they were simply not attributable to the aflatoxin ingestion. I find no prejudice and thus, no reversible error and would deny Plaintiff's first point. The majority reverses on this point and therefore does not address Plaintiff's remaining seven points. Although a detailed analysis will not be provided here, a thorough review of those points indicates that they provide no basis on which to reverse. The trial court's judgment, as well as the jury's verdict and damage award, should be affirmed. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.