O'Donnell v. Moose Hill Orchards, Inc.

670 A.2d 1030, 140 N.H. 601, 1996 N.H. LEXIS 2
CourtSupreme Court of New Hampshire
DecidedJanuary 31, 1996
DocketNo. 94-107
StatusPublished
Cited by7 cases

This text of 670 A.2d 1030 (O'Donnell v. Moose Hill Orchards, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Donnell v. Moose Hill Orchards, Inc., 670 A.2d 1030, 140 N.H. 601, 1996 N.H. LEXIS 2 (N.H. 1996).

Opinion

THAYER, J.

The plaintiff, Kathy O’Donnell, brought an action against the defendants, Moose Hill Orchards, Inc. d/b/a Macks Apples (Moose Hill), and Andrew Mack, alleging that pesticide spraying in the defendants’ orchards resulted in the illness and death of horses on the plaintiff’s land. A jury returned a verdict in favor of the defendants. On appeal, the plaintiff alleges that the [602]*602Superior Court (McHugh, J.) committed a number of errors regarding the admission of expert testimony. We affirm.

The plaintiff owns a horse farm on which she boards, raises, and breeds thoroughbred race horses. The plaintiff’s property abuts the apple orchards of defendant Moose Hill. The orchard is sprayed with pesticides and other chemicals. During the spring of 1983, twenty-two horses at the plaintiff’s farm experienced colic and eight of those twenty-two later died. The plaintiff alleged that spraying pesticides on the orchards resulted in the illness and death of the horses.

At trial, both the plaintiff and the defendants presented expert witnesses. Dr. Frederick Oehme, a veterinary toxicologist, testified for the plaintiff. Dr. Oehme testified that due to horses’ unique digestive systems, they are highly susceptible to colic, and that any foreign object, such as a pesticide, can induce colic. Dr. Oehme further testified that in his opinion the colic and subsequent deaths suffered by the plaintiff’s horses were caused by pesticides drifting from the orchards onto the plaintiff’s pasture.

Dr. Oehme also explained that a chemical’s LD-50 is a measurement of its toxicity. It indicates the quantity of the chemical that will constitute a lethal dose to fifty percent of a given population. Dr. Oehme explained that the LD-50 measure is a crude measure of toxicity based on experiments done on laboratory animals, mainly mice and rats. He testified that he did not think that a chemical’s LD-50 was a good indicator in this case because it did not account for illness caused by chemicals; it only measured deaths. Additionally, he noted that because of its unique digestive system, a horse is “much more sensitive to gastrointestinal pain, irritation, and it’s much more likely to show problems from considerably lower doses than are going to kill mice.”

The defendants’ expert, Dr. Robert Poppenga, also a veterinary toxicologist, testified that while he did not know what caused the illness and death of the plaintiff’s horses, “the pesticides were not most likely involved.” He further testified on cross-examination, that while he could not state what dosage of the chemicals used on the orchards would constitute a toxic dose, because the chemicals “have not been investigated specifically in horses,” the chemicals used on the orchard “have just a very large LD-50 [and] would be considered to be safe.”

The contested testimony in this case was given by Dr. Alan T. Eaton, an entomologist from the University of New Hampshire called as an expert by the defendants. Prior to trial, the plaintiff had moved in limine to exclude Dr. Eaton’s testimony because: (1) his [603]*603proposed testimony and curriculum vitae had never been supplied to the plaintiff; (2) he was not qualified to testify as an expert regarding the effect of the chemicals on the horses; and (3) he had no personal knowledge regarding the incidents at the plaintiff’s farm and therefore could not testify as a lay witness. The trial court denied the motion, but stated that the plaintiff could voir dire Dr. Eaton as to his expertise regarding LD-50’s.

At trial, Dr. Eaton testified that in 1983, he was a participating author and editor of the New England Pesticide Control Guide. Additionally, he was familiar with the pesticides used on apple orchards and with pesticide safety and application procedures. Dr. Eaton stated that in compiling the pesticide control guide, the experts involved, himself included, consider the toxicity of the various chemicals. They consider both chronic toxicity, when the effect of a chemical is not immediately apparent, and acute toxicity, when the effect is noted within a short time after exposure. Acute toxicity is measured by a chemical’s LD-50. Dr. Eaton noted that even though horses and other livestock were not used as test animals in determining a chemical’s LD-50, the LD-50 is the best available measure of the toxicity of pesticides.

Dr. Eaton then demonstrated to the jury how an LD-50 is calculated. He explained that “the LD-50 is a number, and that number is actually the number of milligrams of pesticide or chemical that are required for every kilogram of body weight of your test animals in order to achieve 50 percent kill of your test population.” Dr. Eaton calculated the LD-50 of table salt and Dithane, a chemical used on the orchard, for a horse based on an estimated average weight of a thoroughbred horse. Dr. Eaton also determined, based on the level of pesticide found on the plaintiff’s property, the volume of contaminated hay that a horse would have to eat in order to consume a lethal volume of the pesticide. On cross-examination, Dr. Eaton admitted that there were no LD-50’s available for combinations of chemicals, and that combining chemicals could result in different LD-50’s than the chemicals would have individually.

On appeal, the plaintiff argues that the trial court erred by allowing Dr. Eaton to offer opinion testimony regarding the toxicity of the pesticides used by the defendants because: (1) Dr. Eaton was not qualified to act as an expert on these issues at trial; (2) the trial court did not initially inquire into Dr. Eaton’s qualifications; and (3) pretrial discovery materials regarding Dr. Eaton’s qualifications and opinions were not provided to the plaintiff prior to trial.

We first address the plaintiff’s assertion that Dr. Eaton’s testimony should have been excluded because the defendants failed to [604]*604provide the plaintiff with Dr. Eaton’s qualifications and opinions prior to trial. The plaintiff raised this argument through one of her motions in limine. A hearing was held on these motions; however, a copy of the transcript was not provided to the court. The appealing party “is responsible for presenting a record sufficient to allow the court to decide the issue presented on appeal.” Rix v. Kinderworks Corp., 136 N.H. 548, 553, 618 A.2d 833, 836 (1992). Absent such a record, we limit our review to “the legal errors apparent on the face of the record.” Id. (quotation omitted).

We are not persuaded, based on the record before us, that the trial court erred as a matter of law when it allowed Dr. Eaton to testify for the defendants. A party is entitled to disclosure of an opposing party’s experts, the substance of the facts and opinions about which they are expected to testify, and the basis of those opinions. Hydraform Prods. Corp. v. American Steel & Alum. Corp., 127 N.H. 187, 201, 497 A.2d 339, 348 (1985). Failure of a party to supply such information should result in the exclusion of expert opinion testimony unless good cause is shown to excuse the failure to disclose. Id. at 202,498 A.2d at 348. Based on the facts in this case and absent a transcript of the hearing, however, we are not persuaded that the trial court could not have found that good cause existed to excuse the defendants from any failure to supply required discovery. We do know that the trial court could have considered, at a minimum, the following.

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Cite This Page — Counsel Stack

Bluebook (online)
670 A.2d 1030, 140 N.H. 601, 1996 N.H. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/odonnell-v-moose-hill-orchards-inc-nh-1996.