Krueger v. United States

161 Ct. Cl. 599, 1963 U.S. Ct. Cl. LEXIS 180, 1963 WL 8569
CourtUnited States Court of Claims
DecidedMay 10, 1963
DocketCong. No. 11-54
StatusPublished
Cited by5 cases

This text of 161 Ct. Cl. 599 (Krueger v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Krueger v. United States, 161 Ct. Cl. 599, 1963 U.S. Ct. Cl. LEXIS 180, 1963 WL 8569 (cc 1963).

Opinion

Laramoke, Judge,

delivered the opinion of the court:

This is a congressional reference case referred to the Court of Claims for a report on the nature and character of the demand as a claim legal or equitable against the United States and the amount, if any, legally or equitably due.1 The 22 plaintiffs are all engaged in the business of breeding, raising, and pelting mink. They claim that as a result of reliance on certain advice put out by the U.S. Department of Agriculture they suffered damages to their mink for which the defendant is liable.

The facts in this case, as determined by the court, are set forth in detail in the Commissioner’s Eeport, infra, but briefly are as follows: In 1948 and 1949 certain employees of the Department of Agriculture wrote articles which, with Departmental approval, were published in various commercial publications, and which recommended the use of chicken waste, i.e., head, feet, entrails, etc., of the fowl, as a substitute for the scarce and more expensive horse meat in the feeding of mink. At the time such recommendations were made, and at the present time, it is a known fact that ordinary chicken waste is a satisfactory substitute for horse meat in the diet of mink, and has been used as such by some mink ranchers since 1939.

In early 1941, diethylstilbestrol, which is a synthetic female sex hormone commonly known as stilbestrol, was just beginning to be used to fatten poultry for commercial purposes. This was done by implanting the drug in pellet form into the neck of the fowl. Chickens so treated are named caponettes.

It has now been scientifically established that stilbestrol, if eaten by mink in sufficient quantities, will cause partial or complete sterilization of the female. Even if it does not cause complete sterility in mink, stilbestrol tends to reduce the size of litters and inhibits lactation so that the mink kits which are born may die from want of milk. Stilbestrol may also predispose mink to fatal infections, cause loss of hair [602]*602and baldness, or kill the furbearing animals outright. The residue of stilbestrol remaining in the necks of slaughtered caponettes is sometimes sufficient to cause the aforementioned injuries to mink if such necks are ingested by them.

Most of the plaintiffs contend that they fed chicken waste to their mink because it was recommended for such feedings in articles written by Department of Agriculture employees and published in magazines with Departmental approval. Six plaintiffs claim that although they utilized chicken waste prior to reading the Department’s articles, they increased the amount of chicken waste they used as feed after reading such articles. All of the plaintiffs claim that the chicken waste they fed their mink included waste from caponettes, against which use the Department had not warned, and that as a result of using such feed their breeding herds were rendered sterile by the residue of stilbestrol in the waste. Furthermore, the plaintiffs contend that their total losses consist of the value of the breeder mink plus the cost of feeding and maintaining the mink for another year until they could be pelted in the next pelting season.

The plaintiffs maintain that the defendant is liable for their losses. .They allege that the Department of Agriculture was negligent in that it was aware of the dangers of stilbestrol to mink when it approved the articles endorsing chicken waste for mink feed and did not warn against the danger of stilbestrol in the chicken waste. This danger existed because caponette waste is indistinguishable from ordinary chicken waste and often mixed with it.

The defendant denies that the Department of Agriculture (hereinafter referred to as the Department) knew at the time of publication of the above-mentioned articles either that stilbestrol acted to render female mink sterile, or that remnants of stilbestrol remained in chicken waste.

As we view this case, the plaintiffs must overcome three hurdles in order to establish legal liability. First, plaintiffs must either show that the defendant was negligent in originally permitting these articles, or in not warning the plaintiffs of the dangers of stilbestrol in the chicken feed when such danger became known to defendant. • Second, plaintiffs must prove their reliance on the defendant’s actions and their [603]*603losses suffered thereby. Third, plaintiffs must show a legal basis for recovery in such circumstances .

In our judgment, the plaintiffs have failed to establish their claim in all of the above-outlined respects. >We do not agree with the plaintiffs’ contention that the Department was aware that stilbestrol was dangerous to mink and that remnants of it remained in chicken waste when the Department approved publication of the articles in question. The only means by which the Department could have become aware of the deleterious effects of stilbestrol upon mink would have been through the experimental research of Dr. Robert Enders, a professor at Swarthmore College, who was also a cooperative agent of the Department. He was the only person doing mink research for the Department. Beginning in 1947 Dr. Enders embarked upon a series of experiments attempting to induce ovariectomized and normal reluctant female mink to mate by injecting them with stilbestrol. His experiments revealed that when injected with stilbestrol the reluctant females started to mate, but further results showed that no young were produced from these spuriously prompted unions. However, mink, more so than other animals, are normally subject to breeding failure due to a variety of causes, and it was not until late in 1949 that Dr. Enders started to suspect that the injections of stilbestrol were causing sterility in the mink and were, therefore, responsible for the lack of production of offspring. Although the plaintiffs dispute these facts, they have not adduced sufficient evidence to successfully controvert them and prove their own version of what occurred.

Furthermore, the plaintiffs have not been able to completely support their claim that prior to 1949 the Department knew that remnants of stilbestrol remained in the necks of caponettes. However, regardless of whether the Department was aware of such conditions, it still is not determinative of this issue as plaintiffs have not proved their major contention; i.e., that the Department knew that stilbestrol was dangerous to mink. The articles under consideration merely pointed out that chicken waste was good mink feed, which is true. At the time of the publications, the defendant was not aware of the possibility of the presence of [604]*604stilbestrol in the feed or that it was harmful to mink. Under these circumstances, the defendant was not negligent in this respect.

Independent of its first allegation of negligence, the plaintiffs allege that the defendant was negligent in a second instance in that the defendant did not promptly caution the mink ranchers against using caponette waste when it was first put on notice of the possibility of its danger. The facts in regard thereto are these: In September and November of 1949 the Department received notice of two apparently isolated instances of poor mink production which the informants suspected might have been due to the residue of stilbestrol in the chicken waste fed to the mink. Also, in November, Dr. Eobert Enders visited two of the plaintiffs’ farms where unexplained breeding failures had occurred that year.

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Cite This Page — Counsel Stack

Bluebook (online)
161 Ct. Cl. 599, 1963 U.S. Ct. Cl. LEXIS 180, 1963 WL 8569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krueger-v-united-states-cc-1963.