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Mondelli v. Kendel Homes Corp.

With regard to the Mondellis' appeal, we conclude that the district court abused its discretion in excluding the testimony of Drs. Pour and King. This exclusion of evidence was prejudicial error. The district court did not abuse its discretion in refusing to allow joinder of the claims of the Mondelli family.

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Federal Appeals Court Hears Oral Arguments in Dairy Case

Mariposa Farms 2005 jury verdict against Westfalia Surge, one of the world's largest milking machine manufacturers, commanded the attention of the United States Court of Appeals for the Tenth Circuit, at Denver, on September 26. The Appeals Court took up Westfalia Surge's claim expert testimony introduced by Mariposa should not have been received at trial.

"We believe the trial court made a correct initial decision to permit Mariposa's agricultural engineering witness to testify," David Domina told the Court of Appeals. Domina described the engineer's three (3) basic physical findings, all identified in a telephone conversation, with emailed photographs, to support the call. "The problems here were so basic that engineering testing defining the quantity of the problem, rather than its existence, were unimportant to solve the problem for the dairy."

Domina noted the dairy's production medicine veterinarian, a member of the National Mastitis Counsel's Milking Machine Committee, confirmed the virulent infection which killed nearly 350 dairy cows, and compromised more than 1,500 others which had to be salvaged for slaughter, "has no way to move about, except in the stream of fluid through the milking machine. If the machine does not maintain appropriate pressures, a reverse pressure gradient develops, forcing minute bits of milk back into the cows tit end, introducing the bacteria, and permitting it to engage an entire quarter of the uterus."

Westfalia Surge contended the veterinarian's testimony was insufficient alone, and the engineer's testimony should not have been allowed.

Westfalia claims the engineer's work was done prematurely and destroyed critical evidence so Westfalia could not conduct independent testing of its own. But, the trial record disclosed Westfalia's company representatives were at the dairy eleven times and its dealer made 85 calls to the facility - with none of them diagnosing the problem.

A federal jury in Albuquerque, New Mexico, awarded the dairy more than $2.6 million in damages after apportioning fault among parties and non-parties to the case. Domina Law Group pc llo's David Domina and James Cann, working closely with Aguilar Law Firm's Felecia Winegardner of Albuquerque, discovered, prepared and presented the case. All three lawyers participated in the appellate record and brief preparation, which culminated in oral argument on September 26.

"We are optimistic the appeals court will uphold the jury verdict and give the owners of this troubled dairy some much needed relief," Domina said after the appeal was heard.

October 03, 2006
David A. Domina

Domina Law Group pc llo is a firm of trial lawyers. We specialize in complex litigation on a national basis. Our lawyers are ethical, aggressive, and committed to providing spirit and vitality to the judicial system and our client’s legal rights.

Categories: Agricultural Law, News

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