In February 2005, Plaintiffs, a group of present and former owners of dairy farms in Millard County, UT, filed suit against Defendants, who own, operate, and manage the Intermountain Power Plant (IPP) in Millard County, and its associated high voltage direct current transmission line. Plaintiffs alleged that stray direct current electricity had been traveling from some IPP source to Plaintiffs’ dairy and beekeeping farms, adversely affecting the health and productivity of their dairy herds and beehives.
In October 2009, Plaintiffs filed a petition for interlocutory appeal seeking review of the trial court’s decision to preclude one of Plaintiffs’ experts, Dr. Andrew Keeter, from testifying as to causation and damages.
Dr. Keeter had been a veterinarian for over 25 years. In 1984, he became a private veterinary practitioner at Johnson County Veterinary Services in Texas, serving more than 45 private dairy clients and more than 35 large beef clients. In 1995, he completed a residency in Dairy Production Medicine and a Masters of Preventive Veterinary Medicine. He worked as a staff veterinarian and nutritionist at County Line Dairies in Artesia, New Mexico, from 1995 to 1997 and as managing partner at Dairy Oz, a Kansas dairy farm of which he was part owner, from 1997 to 2001. From 2001 to 2007, he worked as a technical service specialist at Monsanto Dairy Business. At the time of the hearing, Dr. Keeter was working as a veterinarian for Biozyme, Inc., consulting with dairies regarding production, labor, and management issues. At the June 2009 evidentiary hearing, Dr. Keeter confirmed that he planned to offer opinions regarding causation and damages, specifically that stray current from IPP caused the alleged injuries to Plaintiffs’ cows and also that Plaintiffs were damaged because their herd death rates increased and milk production decreased.
Despite Dr. Keeter’s impressive credentials, the trial court concluded that his testimony on causation did not satisfy the reliability threshold of Rule of Evidence 702. The court had these criticisms: (1) Dr. Keeter’s statements regarding symptoms contradicted the Merck Veterinary Manual (Cynthia Kahn ed., 9th ed. 2005), (2) Dr. Keeter failed to perform adequate differential diagnosis testing on each individual dairy farm, (3) Dr. Keeter’s epidemiological study was flawed, and (4) Dr. Keeter cannot establish causation based on an epidemiological study because such a study is used to establish association, not causation.
The trial court also concluded that Dr. Keeter’s opinions regarding damages were unreliable because Dr. Keeter (1) failed to consider overhead costs or capital investments, (2) failed to consider the sizes of individual farms to determine increased fixed costs, (3) failed to precisely separate and calculate damages for individual farms, (4) failed to justify his starting dates or fixed percentages of growth, and (5) made other errors in his calculations.
Defendants argued that Dr. Keeter’s experience is neither highly specific nor directly applicable. Therefore, they contend, he did not have sufficient relevant experience with the issues involved in this case, including the effects of DC electricity on dairy cows. As a result, Defendants contended that Dr. Keeter was not qualified to testify regarding causation under Utah Rule of Evidence 702(a). Similarly, Defendants contended that Dr. Keeter was not an agricultural economist and had no formal education in accounting, finance, or economics. Therefore, Defendants argued, he was not qualified to testify about damages.
The Plaintiffs contended that “Dr. Keeter’s testimony that he practices on large animals, particularly dairy animals, and has expertise in the effects of electricity on milk production and cow mortality ‘constituted a threshold showing that his opinion was reliable, and that under Rule 702, a qualified doctor whose specialized knowledge is unchallenged does not need to make any additional showing of his methodology to testify about causation.”
Although acknowledging that reliability is the touchstone of admissibility, the Defendants contended that, “A proposed expert witness must have highly specific expertise that is directly applicable to the issues presented in the case and such expertise must be undisputed.” In the court’s view, Plaintiffs’ articulation understated the requirement for admissibility of expert testimony, and Defendants’ version overstated it. Under Utah law, the applicable standard falls somewhere in between.
The court ultimately concluded that the trial court’s reasoning regarding the admissibility of Dr. Keeter’s opinions was flawed and, as a result, its exclusion of that evidence exceeded the bounds of sound discretion. Many of the trial court’s criticisms reflected concerns best reserved for the weight of the evidence, rather than its threshold reliability for purposes of admissibility, and therefore went beyond the scope of the court’s gatekeeping responsibility under Rule 702. As a result, the appeals court found that the trial court’s criticisms did not constitute valid reasons for excluding Dr. Keeter’s testimony regarding causation.