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Andrew Bergh
Andrew Bergh

June 29, 2000

Feed mix-up makes dairy an udder mess

By ANDREW BERGH
Special to the Journal

Even a city boy like me knows you don’t give hog feed to dairy cows.

You just don’t.

The problem, of course, is that commercial hog feeds like HogCon have a lot higher mineral count.

Which means that if you suddenly switch Bossy’s diet to hog feed, the elevated mineral levels can wreak havoc on her system. The first telltale sign might be diarrhea, followed soon by a loss of appetite and a sharp drop-off in milk production. Before you know it, you’ve got a listless, non-lactating cow on your hands.

And for a dairy farmer, that spells d-i-s-a-s-t-e-r.

No, I didn’t sleep at a Holiday Inn Express last night – I just know my stuff. But in case you’re still skeptical, here’s a real-life example – Schafersman v. Agland Coop – involving two people really in the know.

John and Eileen Schafersman are long-time dairy farmers in Nebraska. If you drive about 12 miles west of Herman, you’ll run smack dab into their farm.

Like most farm animals, the Schafersmans’ dairy cows enjoy eating on a regular basis. So one day in June 1994, John called Agland Coop, a local company specializing in livestock feeds, to replenish their supply.

Later that month, one of Agland’s employees, Mort Pearson, delivered almost 102 bushels, or 3,260 pounds, of what was supposed to have been plain oats. But right after the feed was put into the Schafersmans’ grinder-mixer bin, Mort and John realized something else had been mixed in.

There was a dispute about what Mort said regarding the botched shipment.

John, for one, was “100 percent positive” that Mort said soybean meal was the extra ingredient, and that it “shouldn’t hurt nothing.”

Mort, on the other hand, insisted that he identified the substance right away as HogCon. (For the underinformed, HogCon is a commercial hog feed that, for reasons I can’t explain, is now called EnviroLean 2.5L Swine Concentrate.) Mort did agree, however, that he told John the HogCon wouldn’t hurt his cows.

A day or two after the delivery, the Schafersmans began feeding the oat-HogCon mixture to 54 of their cows. And for about two days, milk production actually went up.

But matters quickly went downhill.

First of all, most of the cows developed diarrhea. That was soon followed by a big drop-off in milk production, with many cows refusing to feed.

But the worst was yet to come. Within a month, 23 cows had dried up completely, their milking days sadly over. And over the next 18 months, 10 cows actually died. All this happened even though the Schafersmans had promptly contacted Agland and had the product recalled within two weeks.

The rest of the Schafersmans’ dairy cows, meanwhile, were doing just fine. That’s right, not a single health problem among those cows that ate none of the oat-HogCon mixture.

Understandably, the Schafersmans blamed the HogCon.

But Agland denied any responsibility, essentially claiming the timing of Mort’s delivery and the dairy farmers’ ensuing problems was just a coincidence. So after hiring an attorney, the Schafersmans sued Agland for damages in Burt County District Court.

After a lengthy delay, the Case of the Dried-up Cows finally went to trial in May 1998.

To prove their claims, the Schafersmans called a veterinarian as their expert witness.

Dr. Wallace Wass agreed that many of the minerals present in HogCon are needed for normal bodily functions and aren’t toxic to dairy cows in trace amounts. The problem was, Agland’s own analysis showed that 55 percent – about 2,000 pounds – of the offending shipment had been pure HogCon. It was these significantly elevated mineral levels, said Dr. Wass, that had the toxic effects on the poor dairy cows.

The jury evidently believed Dr. Wass, as it found in favor of the Schafersmans. Total award? $120,000, or more than enough to buy a few new dairy cows.

But Agland refused to pay. The company instead appealed, claiming 10 different errors by the trial court. For example, Agland argued Dr. Wass was unqualified to testify as an expert and that the Schafersmans had no case without his testimony.

But give me a break.

By the time of trial, Dr. Wass had been on the faculty at Iowa State University for 34 years. He is a professor in its department of diagnostic and production animal medicine, board-certified in veterinary internal medicine, and a specialist in diseases of metabolism, nutrition, and toxicology.

I don’t know what all that means, but it sure sounds impressive.

And Dr. Wass’ resume likewise impressed the appeals court, which said he was amply qualified to give expert testimony. On top of that, the court, by a 3-0 margin, also shot down the rest of Agland’s arguments.

In short, the Schafersmans should finally get their $120,000.

Which only goes to show that even in a case beginning in udder failure, you can still have a happy ending.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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