921 N.W.2d 615
Neb. Ct. App.2018Background
- Farm & Garden sued farmer Jim Kennedy for unpaid invoices totaling $104,180.27 for fertilizer, chemicals, and application services from the 2012 crop year; Kennedy counterclaimed for damages from alleged negligent application that reduced forage (stover) yields.
- Kennedy operated the Home Place and rented the Leuthold Fields; in 2012 the Leuthold Fields showed "striping"/uneven growth after Farm & Garden applied fertilizer and chemicals, and Farm & Garden later made a remedial application billed at $7,511.20.
- Kennedy and his farmhand testified to low stover bale counts on the Leuthold Fields versus the Home Place; Kennedy’s expert (Kucera) attributed striping to phosphorus misapplication and contended stover could exist without corresponding grain yields.
- Farm & Garden’s expert (Goedeken) used a peer‑reviewed Nebraska Extension publication (a ‘‘rule of thumb’’ formula relating grain yield to residue/stover yield), USDA county yield data, and Kennedy’s records to conclude reported bale counts were improbably high and that many invoice charges were not in dispute.
- A jury awarded Farm & Garden $104,180.27 and awarded Kennedy $7,511.20 on his counterclaim (matching the remedial application invoice). The district court denied Kennedy’s motion for new trial and awarded Farm & Garden $46,089.27 prejudgment interest under Neb. Rev. Stat. §45‑104 on the liquidated portion of the judgment.
Issues
| Issue | Plaintiff's Argument (Farm & Garden) | Defendant's Argument (Kennedy) | Held |
|---|---|---|---|
| Admissibility of Farm & Garden’s expert (Goedeken) | Expert is qualified; methodology (Nebraska Guide formula + local yields) is reliable and assists the jury | Methodology is flawed junk science; formula not applicable to drought‑stressed crops and cannot assume stover requires grain | Court: No abuse of discretion admitting Goedeken; methodology peer‑reviewed, generally accepted, and fit the facts; any weaknesses go to weight |
| Prejudgment interest award | Entitled to interest; invoices/statements are "instruments in writing" and most charges were liquidated | Farm & Garden abandoned original statutory basis; claim was not liquidated because counterclaim put right and amount in dispute | Court: §45‑104 applies to written invoices; $81,933.48 of judgment was liquidated and subject to 12% prejudgment interest; award affirmed |
| Sufficiency of verdict on counterclaim | N/A (defendant sought damages) | Jury award ($7,511.20) inconsistent with theory of lost stover bales; award should reflect lost forage value, not invoice amount | Court: Verdict not clearly wrong; jury could reasonably award the remedial invoice amount as proximate damages; verdict affirmed |
| Denial of motion for new trial | N/A | Admission of expert and jury’s damage assessment were prejudicial errors warranting new trial | Court: No abuse of discretion; motion denied |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial court gatekeeping standard for expert admissibility)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert principles apply flexibly to all expert testimony)
- Schafersman v. Agland Coop., 262 Neb. 215 (Neb. 2001) (Nebraska adopts Daubert for expert evidence)
- King v. Burlington N. Santa Fe Ry. Co., 277 Neb. 203 (Neb. 2009) (trial court must assess expert qualifications, methodology, and application)
- Hemsley v. Langdon, 299 Neb. 464 (Neb. 2018) (standard of review for expert testimony is abuse of discretion)
- Lombardo v. Sedlacek, 299 Neb. 400 (Neb. 2018) (abuse of discretion defined)
- BSB Constr. v. Pinnacle Bank, 278 Neb. 1027 (Neb. 2009) (discusses prejudgment interest statutes and liquidated vs. unliquidated claims)