Joint Appendix — Klehr v. AO Smith Corp.

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Supreme Court, U.S,

FILED

1d) FEB 21 1997

a 4

No. 96-663 | CLERK

Gu the

Supreme Court of the Mnited States

October Term, 1996

MARVIN KLEHR AND MARY KLEHR

Petitioners,

Vv.

A.O. SMITH CORPORATION AND

A.O. SMITH HARVESTORE PRODUCTS, INC.,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JOINT APPENDIX —- VOLUME I!

Frederick W. Morris Charles A. Bird

Counsel of Record Counsel of Record

Blake Shepard, Jr. Bird and Jacobsen

Leonard, Street 305 Ironwood Square

and Deinard, P.A. 300 Third Avenue SE

150 South Fifth Street Rochester, MN 55904

Suite 2300 (507) 282-1503

Minneapolis, MN 55402

(612) 335-1500 Counsel for Petitioners

Counsel for Respondents

Petition for Certiorari filed October 24, 1996

Certiorari granted January 10, 1997

1997 — Bachman Legal Printing & (612) 339-9518 B FAX (612) 337-8053

Mary R. Vasaly

Michael C. McCarthy

Of Counsel

Maslon Edelman Borman

& Brand,

a Professional Limited

Liability Partnership

3300 Norwest Center

90 South Seventh Street

Minneapolis, MN 55402

(612) 672-8200

Malcolm McCune

Maddin, Miller, and McCune

300 James Robertson Pkwy.

Nashville, Tennessee 37201

(615) 254-8756

Counsel for Petitioners

TABLE OF CONTENTS

Relevant Docket Entries for U. S. District Court

General Docket for Eighth Circuit Court of

Appeals included at A-] in

Respondents’ Brief in Opposition to

Petition for Writ of Cert.

Opinion of Eighth Circuit Court of Appeals

included at A-| in Petition for Writ

of Cert.

Memorandum Opinion and Order of District

Court included at B-! in Petition for

Writ of Cert

Amended Complaint, dated November 26, 1993

Defendant A.O. Smith Corporation Answer to

EE SS es ee

Defendant A.O. Smith Harvestore Products, Inc.

Answer to Plaintiffs Amended Complaint,

dated yanuary 25,1994 ...........

RICO Case Statement of Marvin and Mary Kiehr,

dated February 11,1994 ..............

Affidavit of William Olson, dated April 20, 1994 __.

Affidavit of William Olson, dated May 31, 1994 _.

13

73

94

114

1S2

161

Affidavit of Marvin Klehr, dated June 1, 1994 .......

Petition for Rehearing, dated June 17,1996 .........

VOLUME II

Deposition of Marvin Klehr, dated February

10-12, 17-18, 1993, (excerpt) .............

Deposition of Richard Deutsch, dated December

yo yes? aes

Trial Testimony of George Marx, Kronebusch v.

MVBA, et al., No. 46952 (Dist. Ct. Minn.,

i i.) ines cee eee tone rab obace

Trial Testimony of William Johnson, Kronebusch v.

MVBA. et al., No. 46952 (Dist. Ct., Minn.),

(excerpt), and attachment to correspondence,

dated October 30, 1964 ..................

Trial Testimony of W. W. Smith, Jr., Saylor v.

A. O. Smith Corporation, et al., No. CIV-4-

83-94 (Dist. Ct., Tenn.), (excerpt) ..........

Trial Testimony of Donald Dunaway,

Pluemer v. AOSHPI, et al., No. 87-CV-0348

(Cir. Ct. 8 ee ee

Order and Memorandum, Kronebusch v_ A. O.

Smith/AOSHPI, No. C78546952 (Dist. Ct.

8 ee

Affidavit of Karen E. Spors with Exhibits A-D

and F, dated May 9, 1992 ................

Brooks Farms, No. 2058 (S.D. Ohio

EY TS, ow cc ekbessevnsevebs

(p.1]

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF SCOTT FIRST JUDICIAL DISTRICT

CIVIL DIVISION PROPERTY DAMAGE

Marvin Klehr and Mary Kiehr,

Plaintiffs,

VS. File No. 91-08583

A.O. Smith Harvestore Products,

Inc., A.O. Smith Corporation,

MVBA Harvestore Systems, Minnesota

Valley Breeders Co-op, Mid West

Breeders Co-op, and 21st Century

Genetics Co-op,

Defendants.

VIDEOTAPED DEPOSITION OF

MARY KLEHR

FEBRUARY 10, 1993

[p. 34] your husband or was the discussion more between

your husband and Mr. Deutsch?

A. Well, probably more between Marvin and Dick

Deutsch. But I was there and I asked questions and I was

in on it.

Q. Okay. Tell me what specifically you can recall Mr.

Deutsch telling you about the Harvestore silo.

A. Well, I guess one thing that sticks out in my mind is the

idea that no oxygen got in contact with the feed and,

therefore, you would have better feed, better, healthier

cows, more production and more [p.35] money.

Q. Did Mr. Deutsch tell you why you could expect to have

better feed from a Harvestore silo”

A. Can you say that again?

Q_ Sure. Did he explain to you why the Harvestore

silo would give you better feed?

A. I guess because air didn't come in contact with the feed;

therefore, you would have better feed.

Q.__ Did he tell you why you could expect to have healthier

cows?

A. Well, because if the feed is better, naturally you're

going to have healthier cows

Q. And is that also why he told you you could expect to

have more production from your cows?

189

A. [p. 36] Yes.

Q. Do you remember anything else that he told you about

the Harvestore silo?

A __ I'm sure there were a lot of things, but -- I guess I can't

remember.

Q. You mentioned that you went on some farm tours. How

many farm tours did you attend?

A. Well, we went out one day and we went to three

different farms.

Do you remember whose farms you visited?

I can only remember the name of one.

Okay. Who was that?

That was Bob Leiffeld.

Do you know how to spell his name?

Oh. No, I don't.

Was he a farmer in the area around Jordan?

This was down by Miesville

Scr? OF 2 Oc? 8: Poe

. Do you remember the names of the other two farms that

you went to?

190

Not the names, no.

How did you get to these farms?

Dick Deutsch took us.

Did he take you in his car?

Yes.

- POP 7 2 2?

What did you do when you got to the farms?

ses

[p. 104] involvement whatsoever.

A. No. I guess I really don't have any involvement in the

milking and feeding end of it.

Q. Okay. You also discussed earlier this morning about

financial problems in or around 1977. And I recall or noted

that you did not recall when those financial problems started. Is

there a point in time that you could identify for when those

financial problems eased or abated?

A. Can I make a change on something?

Q. Sure.

A. From that date of 1977, thinking about it later, it was

probably the early ‘80s I did the bookkeeping up till.

Q. Okay.

19]

A. So say ‘82. I've got, you know, the records and farm

books at home will have my handwriting in them.

Q. Wecan tell from your entries when you stopped making

those entries.

A. Right

Q. Okay. But that doesn't change the 1977 year for what

you identified as -- .

A. Well, that's basically, the 1982 date would probably be

basically, that's when I quit doing the [p. 105] books because of

financial reasons.

Q__Is it that the financial problems extended from about 1977

to 1982 or beyond or shall we disregard the 1977 reference this

morning and now look at 1982?

A. Correct. Disregard the '77 and go to the ‘82.

Q. Okay. Well, apparently your memory is a little bit

refreshed on that. Can you identify when those financial

problems started?

A. I'd say within a year of the time I quit doing the books. If

I quit in ‘82, they probably were nght around ‘81.

Q.__ And do you recall any specific event that is the kind of the

standard or the point in time that commenced that period? A

loss in number of cows? I'm just trying to find any sort of

reference in your memory that marks that time period for you.

192

A. Well, like I said, we were, financially it was tough. And I

suppose the bottom line was the money wasn't there, so

production had to be down.

Q._ And I'm not trying to put words in your mouth or

anything like that, but sometimes one can identify, say, a

drought or, you know, a disease in the crops or something

saying that's what the watershed was or the precipitant of that

was for a particular [p.106] chain of events. Is there anything

like that in your mind for the financial problems that you're

talking about?

A. No.

Q.__ And then to kind of pick up where I started, is

there any point in time when you feel the financial

problems eased or abated after 1982?

A. Well, they've gotten somewhat better the last year

or two.

Q._1991, 1992?

A Yes.

Q.__ So then is it fair to say that up until ‘91 or '92 there was

about a ten-year period, approximately, of financial difficulties--

A. Yes.

Q.___-- for your family farm?

A. Yes.

193

Q._ And can you describe how that has impacted on you and

in your family's life-style and the farm itself?

A. Well, it's made a big impact. I went out to work in 1985

for that reason. Well, needless to say, my husband and I did a

lot of arguing over financial stress. And, of course, I quit doing

the books and, actually I took a disinterest in anything that

194

[p. 1]

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF SCOTT FIRST JUDICIAL DISTRICT

CIVIL DIVISION PROPERTY DAMAGE

Marvin Klehr and Mary Klehr

Plaintiffs,

VS. File No. 91-08583

A.O. Smith Harvestore Products,

Inc., A.O. Smith Corporation,

MVBA Harvestore Systems, Minnesota

Valley Breeders Co-op, Mid West

Breeders Co-op, and 21st Century

Genetics Co-op,

Defendants.

VIDEOTAPED DEPOSITION OF

MARVIN KLEHR

FEBRUARY 10, 1993

A. [p. 6] Okay

Q. How old are you now?

Forty-eight

195

Q. And I think we got the information from your wife

A. No.

Q. How long have you been living on the farm where

you’ re living now?

All my life.

Q. With the exception, | gather --

A. The one year that we were married | was gone.

Q. Okay. There was one year when you were in an

apartment in Shakopee.

Yes.

And that was in 1968”

Yes.

And with the exception of that, you’ ve been living

1 the farm all your life.

Yes.

Did you complete high school?

No, I didn’t.

So > © >3O > © >

Okay. How many years of high school or schooling

you have?

196

A. I went through the tenth grade.

A [p. 15] No, not right offhand.

Q. Tell me as best you can recall what property you and

your brother bought from your father. What was there in

the personal property that you bought? Was it a huge long

list of things?

A Yes. It was 45 cows and, I imagine, 45 head of

young stock. We bought the chickens, probably 250

chickens. Maybe 30 sows. Just guessing, maybe 200 pigs.

And then all the machinery, the machinery that was there.

Q What sorts of feed storage structures or devices did

you have on the farm at that time?

A There was a 17 by 40 Harvestore. We have a 16 by

40 clay block silo, a red clay block silo, and a 12 by 40

cement stave.

Q. How big was the cement stave?

A Twelve by 40.

Q And did you have any grain bins or anything like

that?

A There was one. There was one 3,200 bushel grain

bin. And the granary

197

Q. When you bought the personal property from your

father did you buy the Harvestore silo from him? Was that

included in the personal property you bought?

[p. 21] silage from 1969 to 1973?

A. In about, I'd say maybe "72 we switched, went to

high moisture corn. Maybe even ‘71. ‘71 or ‘72 we

switched to high moisture corn in the 17 by 40 Harvestore.

Q. Why did you switch to high moisture corn at that

time?

A We were picking cob corn before then. We used to

have the corn cribs full. The lawn was full of corn cribs all

over, so we decided we were going to put it someplace

under a roof.

Q When you switched to high moisture shell corn in

‘71 or ‘72, how many years did you store high moisture

shell corn in the Harvestore?

Up to now.

Pardon me? Up till now?

Up to now.

DO >} 0D >

So since 1971 or ‘72 you have stored high moisture

shell corn in the 17 by 40?

A. Yes.

198

Q.

Have you stored anything else other than high

moisture shell corn in the 17 by 40 since that time?

A.

Q.

A.

Q.

No.

Are you still using the 17 by 40 today?

[p. 22] Yes.

And I gather from what you just said you're still

storing high moisture shell corn in the silo?

A.

Q

> OBO > #

Yes.

And what are you using that feed for now?

For the milk cows.

Are you feeding that to your dairy cows?

Yes.

Back in -- well, let's back up from 1969 till -- during

the time you were feeding corn silage from the 17 by 40,

how did you use that corn silage? What animals were you

feeding with it?

A.

I would say the whole farm at the time we were

feeding out of it.

Q

A

Were you feeding it to the hogs and the dairy cows?

The hogs didn't get any, but the young stock got it.

199

Q. So you were feeding it to the young stock and the

dairy cows?

Yes.

But the hogs didn't get any of that.

> LOY

(Witness shook head.)

Q. When you switched to high moisture shell corn in

1971 or 1972 which animals were fed the high moisture

shelled corn from the 17 by 40?

*s*

[p. 39] have credit with them or did you pay them off?

A. My wife has a checking account with Valley Bank.

Norwest Bank is not in Jordan no more.

Q. So they’re not carrying that; you don’t have a loan

with them anymore, is that nght?

A. No.

Q Did you pay them off at some point?

A We went to First National Bank of Le Center in,

very possibly '88, 1988.

Q. And when you went to First Bank of Le Center did

you pay off Norwest Bank?

A. Yes. Everything was paid off through Norwest

Bank.

200

Q. Are you still carrying a loan with Prudential?

A. Yes.

Q. That's just for the land?

A. Yes.

Q.

Back when you bought the farm from your father in

February 1974, what sort of plans did you have for the farm

operation?

A. I believe expansion was in the planning.

Q. What sort of plans did you have for expansion at

that time?

A. Well, we were -- I was planning on making the dairy

herd size bigger.

Q. [p. 40] Do you recall what your plans were at that

point in time in terms of the size of the dairy herd you

wanted to achieve?

A. Well, we were talking of probably 90 to a hundred

COWS.

Q. Did you have any other sort of plans at that time for

the farm operation?

A. Well, we were planning on installing or looking into

a silo of some kind to store this feed.

Q. At that time in February of '74 did you have in mind

what kind of a silo you wanted to buy?

201

A. No. I believe at that moment or at that tine | did not

know yet what | wanted.

Q. Did you have any sort of plans for the hog operation

that you were still working on at that time?

A. No. The hog operation was a stable thing.

Q. I guess I should ask you this: After you bought your

brother Tom out -- I understand Tom was the one who had

been working with the hogs during that time you were in

partnership. After he left did you continue to maintain the

hog operation?

A. Yes. I was in charge of the hog operation. Yes

Q. What was the size of the hog operation in February

of 1974? Do you recall?

*e*s

[p. 54] got a 16 by 40 red silo.

A Yes.

Q. And that's the red clay silo we already talked about,

correct?

A. Yup.

Q. What year was that built on the farm, do you know?

A. The early ‘SOs

202

foot silo.

Harvestore.

Oh, that's the 1955 Harvestore.

Yes.

2 > © > B80

And then all along the, running north and south

ong, next to the silos you’ve got the cow barn.

> Bf

Yes.

Q And it looks like the cow barn may have been built

in two segments, is that correct?

A That's nght.

Which part was built first?

The northern part. Yes.

Q

A

Q. When was that built?

A 1948.

Q

What are the dimensions of the, the original

dimensions of this cow barn?

A. Thirty-six by 90.

203

And then just to the south of that you’ve got a 17 by

[p. 113] asking him his knowledge then or his knowledge

now?

MR. SHEPARD: Yeah. Then.

MR. BIRD: If you can recall.

THE WITNESS: Repeat that question.

BY MR. SHEPARD.

Q. I 'm just trying to get a sense, when you used the

stave silo did you understand that one of the things you

were doing was reducing the access of oxygen to the

feedstack in the silo?

A. No I guess I didn't understand that.

Q. What was your understanding of the effect of

oxygen on feed?

A What I knew then, at that time?

Q. Yeah.

A. I knew very little about oxygen and feed at that

time.

Q. What about before 1974? You had been, up till

1974 you had been working on the farm for how many

years?

A. I was 30 years old then.

Q. You had been on the farm all your life?

204

A. Except for one year when I was married.

Q. And you had been working, storing feed all those

years, is that right?

A. [ p. 114] Yes.

Q. Did you understand that the access of oxygen could

cause feed to spoil?

A. Yes I'd say at that point I had a vague idea that

that's what it would do.

Q. Did you understand that the access of oxygen could

cause mold?

A. Yes, I believe I had an idea that it would do that.

Q Did you understand that oxygen could -- did you

have any understanding of the effects of oxygen on the

nutritional value of the feed?

MR. BIRD: What year are you talking about now?

MR. SHEPARD: Talking about before 1974.

MR. BIRD: At any time before 1974.

BY MR. SHEPARD:

Q. Uh-huh. Yes.

A. I guess I would have to say that I had read things

about oxygen and feed, yes. I had read a few things.

205

Q. And what was your understanding of the effects of

excessive amounts of oxygen on feed?

A. That when oxygen came in contact with feed that [p.

115] there would be some spoilage.

Q. What did you understand about how the use of the

cement stave silo reduced spoilage in the cor silage?

MR. BIRD: Objection. That assumes that he had

an understanding, so I don't think there is any foundation.

You can go ahead and answer it, if you feel you can.

THE WITNESS: Repeat the question.

BY MR. SHEPARD:

Q. Okay. I thought you testified earlier that one of the

reasons you put the corn silage in the stave silo was to

reduce spoilage.

A. To do what?

Q. To reduce spoilage.

A. No. We put it in there because that was the only,

that was one of the silos we had.

Q. Did you understand that one of the reasons for

putting the corn silage in the stave silo was to reduce

spoilage?

A. I'd have to say vaguely that the -- you'll have to

repeat the question.

206

Q. I'm just trying to get a sense, did you understand

that one of the benefits of using a stave silo to store corn

silage was to reduce spoilage in the [p. 116] feed?

A. No. I could use any silo. I mean, we had the clay

block one too. Didn't have to be just the cement one.

Q. Well, I mean, did you understand -- was there ever a

time when you just stored corn silage in a pile on the

ground?

A. We’ ve done that a few years, yes.

Q. How did you do that?

A. Elevated it to a pile and tried to compact it around,

compact it, walked on top of it, packed it down and feed

some off it.

Q. What was the purpose of packing it down?

A. I guess to make the pile look nice and to keep the

oxygen or air from getting in there.

Q. And what was the reason you wanted to keep air

from getting in there?

A. I guess because of the spoilage. The tighter you had

it compacted, the better the feed would be, the longer it

would last.

Q. And you understood that the better you were able to

reduce the amount of oxygen to the feed, the less chances

there would be that you'd have spoilage.

207

A. Yes.

Q. When you stored the corn silage in the piles that [p.

117] you were talking about, what would happen, what did

the feed on the very outside of the pile look like? What

would happen to the feed on the outside of the pile?

A. We'd get some mold across the top.

Q. And what did you do with that feed on the outside

of the pile?

A. We usually threw it away.

Q. And why did you throw it away?

A. Because we felt that it didn't belong to the animals,

that they'd probably get sick from it.

Q. How many years did you store the corn silage in

piles like that?

A. Two or three years.

Q. Do you remember when that was?

A. I have no idea

Q. Sometime before 1974?

. Oh, yeah. I was quite small when my dad used to do

that.

Q. Was the use of those feed piles something that you

ever did after 1969 when you were on the farm?

208

A. I cannot recall.

Q. Was there a reason that you didn't store feed that

way after 1969?

A. I believe we had enough silage space at that time [p.

118) that we didn't have to put it out there.

Q. Was there a reason that you preferred to put your

corn silage in one of the silos rather than storing it in a pile

on the ground?

A. Convenience and to stop spoilage.

Q. So you had less spoilage in the stave silo than you

did in the piles on the ground?

A. Oh, yes.

Q. And is that because there was less opportunity for

oxygen to have access to that feed?

MR. BIRD: If you know.

THE WITNESS: I couldn't answer that.

BY MR. SHEPARD.

Q. Before 1974 when you were storing com silage in

the stave silo was there ever a time when you saw any sort

of mold or spoilage on the top of the feed?

A. Yes, we did see some.

209

“«

Q. When would you see the mold or the spoilage on the

top?

A. Well, our program then was we fed the cement stave

silo first in the fall. The red silo was tarped, filled and then

we put a tarp over it. And then in the spring we would

open that silo up and start feeding out of that red silo when

the other one was [p. 119] empty. And when we removed

the tarp there was some spoilage, some spoilage.

Q. Why did you put a tarp over the top of it?

A. Well, we heard at the time that that would prevent

some of the spoilage.

Q. You understood that the spoilage on the top of the

red clay silo was from the access of oxygen to that top

layer?

A Yes.

Q And how was the quality of the feed -- strike that

What did you do with that top layer of feed when you began

feeding out of the red clay silo?

A. We threw it down the chute and it was all hauled out

into the field.

Q. How much would you take off the top and throw

out?

A It would vary. Maybe a foot, maybe some years two

feet. I'd like to ask for a break, if possible.

Q. Sure. Let's take a short break.

210

(Brief recess. )

BY MR. SHEPARD:

silage that you threw out from the top of the red clay stave

threw out?

A. It was moldy and very black and mushy.

[p. 123] Yes.

A

Q And it had that same pickled smell?

A Yes

Q

And was that generally true, what you've just

described, each year from 1971 until the present?

A. Yes.

Q What was your understanding of how the feed at the

very end of the fill was becoming moldy?

MR. BIRD: Understanding when? That he learned

over the years?

BY MR. SHEPARD:

Q Yeah.

211

A. I believe that maybe at the end there was a little

oxygen getting in or something that created the mold a little

bit.

Q. What was your understanding as to how the oxygen

was getting into the corn at the end of the feedstack?

A I would have to believe through the unloader. It's

the only thing that it could get in.

Q. And was that something you -- well, let me strike

that Did you understand, before 1974 did you have any

of -- well, strike that. What was your

before 1974 of the relationship between feed

understanding

quality and animal [p. 124] performance?

A Well, I knew that good feed made healthy animals

Q And what was your understanding of the effect of

feeding bad feed to your dairy animals?

A Before what year”

Before 1974

What I know now or what I knew then?

OO } #

What you knew at the time.

A I guess I knew very little at the time. We never fed

bad feed to the cows before then.

Q. And instead when you saw bad feed you would

throw it out and not feed it to the animals?

212

A. Yes.

Q. Why did you do that?

A. I don't know. It was just a policy that we've always

-- my dad, I guess, it was just the way I was brought up.

Q. Well, would it be fair to say that you were

concerned that feeding that kind of feed would not be good

for the animals?

A. Yes, I guess that would be fair to say.

Q. Were you involved at all in the purchase of that

1955 silo, the 17 by 40?

A I was 11 years old. 1 don't believe my dad asked me

too much at that time

Q [p. 131] Well, were you aware of any kind of valve

up there?

A Well, I knew the breather bag had to have somebody

up on top of the roof, some vent or some outlet.

Q What was your understanding of the vent or the

valve -- well, let me ask you this) Were you aware of a

valve on top of the 17 by 40?

A. That went to the breather bag? Yes.

Q. Okay. What was your understanding of the way the

valve worked that was on the 17 by 40?

213

A. That air passed through that valve and went into the

breather bag, in and out.

Q. Other than your DHIA records, are you aware of

any farm records that would show how many cows you had

in your dairy herd at any point in time, say, before 1976?

A. DHIA records I would believe would be the only

ones.

Q. Do you know whether or not you have any feed

tests that relate to the feed stored in either of the Harvestore

silos, other than your very most recent feed tests?

A. I believe that that is all I have.

You just have the most recent ones?

Yes

A. [p. 135] Yes I did.

Q. Tell me what else you looked at other than the

Harvestore

A We inquired about the cement stave silos.

Q. When you say we, who do you mean by we?

A. My wife and 1.

Q. Who do you recall speaking to about cement stave

silos?

214

A. Well, I had a lot of -- I mean, I guess some

neighbors, but I had a lot of experience with cement stave

silos over the years myself.

Q. Which of your neighbors did you talk to about stave

silos?

A. Right offhand, I couldn't tell you.

Q. Do you recall what you spoke to your neighbors

about at that time?

A. I guess I went over there and looked at their haylage

that was coming out of the silos, the feed, the feed that was

coming out.

Q. That was coming out of their stave silos?

A Yes.

Q And do you recall speaking, asking those farmers

questions about their feed?

A. Yes, I can remember.

Q. Do you recall anything specific about the

[p. 137] you were looking at in terms of whether they were

top unloading or bottom unloading?

A. They were all top unloading.

215

Q. Do you remember anything that Mr. Von Bank told

you about the cement stave silos you were looking at?

MR. BIRD: Other than the price, you mean.

BY MR. SHEPARD:

Q. Right.

A. I believe we went with him a day and toured a few

farms. And I guess they showed me the quality of the feed

they had coming down.

Q. And do you remember when you went on this tour

with Mr. Von Bank?

A. I believe it was in early ‘74.

Q Where did you go”

A. I do not know. It was out in Carver County

somewhere.

Q. How many farms did you go to that you recall?

A. I'd say two, at least.

Q. Did you talk to the farmers on those farm tours

about their feed?

A. Yes.

Q. Would it be your recollection that the two farms that

Mr. Von Bank took you to had the same make of [p. 138]

silo that he was interested in selling to you?

216

A. Yes, I believe that.

Q. Did you contact Mr. Von Bank to tell him you were

interested in purchasing a silo?

A. Yes, I believe that.

Q. How long did you spend on the farm tour with Mr.

Von Bank?

A. Maybe a half hour, 20 minutes to a half hour on a

farm.

Q. Did you have an opportunity to ask questions of the

farmers on those farm tours?

A. Yes, I had the opportunity.

Q. Did you have the opportunity to ask them whatever

you felt you wanted to know about the operation and use of

their stave silos?

A. Well, they had experience with chopping of hay and

this and that, and it looked like the type of thing that I

wanted to go to. We looked at the quality of feed. It did

not look bad. I thought it was good feed.

Q. The quality of the feed looked good to you?

A. Yeah.

Q. Did the farmers indicate to you that they were happy

with the quality of the feed?

A. Yes, I'd say so. Yes.

217

[p. 146] that would be most of them.

Q. Before you talked to Mr. Deutsch had you gathered

any information at all about Harvestore silos?

A. Well, yes, I had gathered information. We had

experience with the one on the farm and I was very

interested in the Harvestore.

Q. Had you talked to any neighbors or people that you

knew that had them, the way --

A. Before I talked to Mr. Deutsch?

Q. Yeah.

A. I have to say no.

Q But from your experience using the Harvestore 17

by 40 on the farm, you were interested enough to look into

buying another one?

A. Yes.

Q. I understand you don't recall what was said at the

first conversation or the first meeting you had with Mr.

Deutsch. Tell me as best you can what you first recall being

said at any of those meetings you had with him leading up

to the purchase of the silo.

A Well, I'm sure the first visit was a get-acquainted

visit. I'm sure some information was dropped off,

conversation was probably done for a few minutes or so,

218

and then I would assume that maybe a week or so [p. 147]

later he called back or contacted me back.

Q. Do you have a specific recollection that Mr. Deutsch

gave you any literature at that first meeting?

A. Oh, I would definitely say yes.

Q. Do you remember that as you sit here or is that just

what you assume?

A. I'd say yes. Absolutely yes

Q. You definitely remember him giving you literature at

that first meeting.

A Almost every time he dropped off literature.

Q Do you recall specifically what advertisements or

literature he gave to you at that first meeting?

A. I could not recall

Q. Do you recall when the next meeting with Mr.

Deutsch took place”

A 1 do recall him coming into the house in the kitchen.

Mary and I sat by the table and we discussed things. He had

a movie projector with him. There was a lot of

conversation. I'm not saying this was the second visit or

the third visit; it was in this time period. A lot of literature

was left with us, and | believe that Mary and I looked at the

movie after he left.

Q This particular meeting you're talking about at the

219

***

[p. 149] at those meetings before the meeting where you sat

around the kitchen table with him.

A. Well, I know that once we left him in the house with

the movies and the conversation that there had to be a lot of

other contact with him and the conversations that were said

was more production, more convenience, less protein,

absolutely less protein, easier putting it up, which would fall

under convenience, bottom unloading, which was a big

advantage, Mr. Deutsch said. We could fill and unload at

the same time, where with the cement stave silos we had to

crank the unloader back up.

And Mr. Deutsch never had nothing good to say

about the cement stave silos because of the disadvantage of

cranking the unloader up all the time. And he told me

several incidents of farmers who crawled up those silos and

they went up and down in that dust and they said they had

gone to hell. I mean, they thought if you ever lived in hell,

it was crawling up and down those hay chutes because of

the dust that accumulated in there. And so it was a deciding

factor of the Harvestore

Other conveniences, | guess I'd have to -- we'd have

healthier cows. It was mentioned we'd have better milk

production. Easier to get [p. 150) out in the field and chop

it at an earlier stage, could make the haylage early. All

those things seemed to come to the bottom line that we'd be

making more money. And that they would pay for

themselves.

220

Q. Are those representations that you've just told me

about all of the representations you recall Mr. Deutsch

making to you before you purchased the silo?

A. I'm sure there was more.

Q. Are there any more that you recall other than what

you've just mentioned?

A. That oxygen did not come in contact with the feed.

And with my experience of oxygen coming in contact with

my feed over the years, I knew that that would be a big

advantage. And there would be less spoilage; that you

could mix any crop, one on top of the other, didn't make

any difference. I believe at this point that covers most of

them. I can't think of more offhand.

Q. Are the representations that you just told me about

things that Mr. Deutsch told you about over the course of

several discussions with him?

A. Yes.

Q. Let me just go back through the list and ask you [p.

151] some questions about some of the things you've

mentioned. The first thing I have written down here is more

production. Did Mr. Deutsch give you any sort of

explanation as to why you might expect more production?

A. Because of the better quality feed that we would get

out of the silo.

Q. Did he tell you why you might expect to have better

quality feed coming out of the Harvestore?

221

A. Because oxygen did not cone in contact with the

feed.

Q. Do you recall anything else that he told you with

respect to this item of more production?

A. Well, the better feed would make healthier cows and

healthier cows made more milk. And you could put up your

haylage at an earlier stage, save more protein or save more

leaves, which would give you better feed quality. The first

in/first out was an advantage, because you don't have this

changing of rations always. All these things would give you

more production.

Q. The next thing I have written down here that he told

you was that there would be more convenience. And |

believe that you -- I wrote down here just about as much of

what you said as I could. Let me

***

[p. 153] that was always a problem, somewhat of a

problem, with top unloading, and that you would not have

that problem. And in the wintertime the cows would

consume more feed because it was not just frozen feed that

you were feeding them. It would be warm feed.

Q. And did he tell you why you could expect to have

warm feed?

A. Well, because you're underneath the pile, you're

inside of the pile and not taking off the top every day.

Q. The next thing I have written down on my list here is

that you could fill and unload at the same time, and I think

222

you've told us about that. Was there anything else that you

haven't already mentioned that Mr. Deutsch told you about

your ability to feed and unload at the same time?

Q. We already talked about better production. The

next thing I have written down here that you said was that it

would be easier to chop the alfalfa at an earlier stage and

you could make haylage earlier. Is that what he told you, as

best you recall?

A. Well, what we talked about was basically that with

the Harvestore that you could get out there earlier, cut the

stuff at an earlier stage, prebud stage, gather that, get the

highest protein. And [p. 155] by saving, by chopping a little

bit earlier and saving the leaves you would have more

Q. And when he was talking about being able to chop

at an earlier stage, was he comparing your ability to make

haylage for the Harvestore with dry hay, baling hay?

A. No. I would say that would be, pertaining to that

subject, that was all.

Q. And am I correct that that feature, the ability to feed

and unload at the same time, was one of the conveniences

that Mr. Deutsch was telling you avout?

A. Yes. That was one of the conveniences.

Q. And the same with bottom unloading? Was that one

[p. 154] of the conveniences he mentioned?

A. Yes

A Repeat that question

Q. The next thing I have written down here has to do

with healthier cows. What did Mr. Deutsch tell you about

healthier cows?

Q That's a terrible question 1 apologize. When he

said that you would be able to chop the alfalfa an earlier

stage and make the haylage earlier, what was he comparing

A. Well, he said if you get the feed, by putting it :

through a Harvestore you were able to put it up at a much

younger stage, save all the leaves. You'd have a much

better feed quality, and with a better feed quality you're

going to have a healthier cow.

ita

eu g haylage instead of

: ‘nso be able to save more

the aus :

Q And, therefore, you would get more protein than if

you were baling hay”

Q. So am I correct that you understood from what Mr.

Deutsch was telling you that healthier cows was one of the . «

results you could expect from having better feed? “ye

A Yes

A. Yes. I would say that that would be true, yes.

223 224

A. Yes.

Q. The next thing I have written down here, and this is

kind of a paraphrase, but you said the bottom line was that

you would be making more money and that the silos would

pay for themselves. Is that accurate?

A. [p. 156) Yes.

Q. Did he explain to you why you might expect to

make more money?

A. Because of the better quality feed and the less

protein that I would have to buy and more milk.

Q Did he explain to you why you could expect the

silos to pay for themselves”

A He showed us on paper as to how they would pay

themselves off by saving -- by the increase in production

and the savings on the protein he could prove to us that it

was a profitable thing.

Q. And the increased production and lower protein that

he talked about was, as you understood it, because you

could expect to have better feed from the silo?

A Yes

Q The next thing I have wntten down here is that he

told you that oxygen would not come in contact with the

feed. And then I believe you said that you knew that that

was a big advantage based on your experience with oxygen

contacting feed that you had experienced on the farm, or

something to that effect. Is that correct?

225

A. Yes. Yes.

Q. And the next thing I have written down here has to

[p. 157] do with less spoilage. And am I correct that --

well, let me ask you the question this way: Did he tell you

why you could expect less spoilage from a Harvestore?

A. Because it was an airtight structure. The air did not

come in contact with the feed. And my experience was that

Q. And that was because you had experience on the

farm where you had observed spoilage from the contact

with oxygen.

I had seen spoilage on the farm before, yes.

And that was before 1974

Yes.

Qo + OB

The next thing I have written down here is that you

could mix crops, one on top of another Tell me what he

told you specifically with respect to that

A. Well, as far as you could fill silo and the following

crop or if it was hay, again, you could put night on top of

the next one. And if there was some corn silage or

something that you wanted tout in between there, that you

could put that on top and go nght back into haylage again

I guess that would pretty much cover it, that you could [p

158] keep on mixing, I mean, putting different vaneties of

forage in the same silo

226

Q. You mentioned, when Mr. Deutsch told you the

silos would pay for themselves, that he did some sort of

projections for you.

Yes.

No.

Did you save them?

No.

So? © ?<e@iP?

Do you recall specifically what he told you with

respect to the ability of the silos to pay for themselves?

A He said in four to five years that we should be able

to pay the silo back. It would pay for itself.

Q When you were talking to Mr. Deutsch about all of

these things, had you and Mr. Deutsch, were you talking

about a specific size and specific model Harvestore or were

you just talking generally at this point?

A I would believe at this point it was just generally.

Q. He was just talking about Harvestores generally?

[p. 166) closed the thing up and then they air checked it

with sealers. Guys would check every seal, every bolt. It

was put tog ether with very good craftsmanship. I liked

that part. I seen several movies - I don't know if that one --

227

Do you have those figures that he produced for you?

I think that would probably be basically the end of that

movie.

Q. Who was present with you when you looked at that

A Mary and -- excuse me. Mary and I.

Q Was Mr. Deutsch present for that, when you looked

at it?

A Okay. I do not think he was.

Q Is that everything you remember about what you

saw in the movie?

A Yes. I would say in that movie, yes.

Q Did you have any questions after you saw that

movie that you asked Mr. Deutsch?

A Well, I would assume that we talked about the

foundation, the footing, as to how many yards of cement it

was going to take. And I guess that at the end the finished

product would be that it would-be tested so that I would

know I had an airtight silo, because I was very concerned

about that.

Q Why were you concerned about that?

A Well, that was going to be my big factor, that I [p.

167] could keep this oxygen out of my, coming from

contact with my feed.

Q And why were you interested in doing that?

228

A. To eliminate spoilage.

Q. Did Mr. Deutsch answer any questions you had

about the movie after you saw it?

A. I’m sure he answered all the questions that I had,

but I can't remember all the questions that I asked him at

that time.

Q. Do you remember anything he told you about

anything that was said in the move after you saw it?

A I would say not.

OQ. Do you remember when it was that you first saw this

film, Birth of a Harvestore?

A. The summer of *74.

Q Have you seen that film since that time at all?

Yes, I have

When have you seen it since then?

In my lawyer's office.

Is that the only other time you've seen it?

And I seen it recently in our own house.

When did you look at the movie at your own house?

> Beer ee >

About a week ago.

229

Q. Was that before the weekend, this past weekend, or

since then?

[p. 169] They showed people cutting hay and then running

with the choppers and blowing it into the silos. And they

showed the, talked about the early stage of cutting and they

talked about all the protein you're going to save. And the

protein that you saved was going to give you better feed

and the better feed was going to make healthier cows

Wouldn't make them, but you'd have healthier cows. And

healthier cows meant more production, more production

meant more income, more income meant better living

Q. And were all those things that you saw in the movie

important to you”

A. Yes. I'd say the whole movie was very important to

me.

Q. The parts of the movie that showed the progression,

as you say, to chopping alfalfa rather than baling it and

moving to automation, those sound like things that you

were interested in based on what you told me earlier about

your desire to put up another silo to help you expand

Would that be accurate?

A. What silo are you talking about?

Q. Well, I thought you told me earlier that when you

decided in 1974 that you wanted to buy another silo

230

A. [p. 176] It was The Magic of -- no.

MR. BIRD: Here, it's on your --

THE WITNESS: I get the names mixed up. The

Magic of the Harvestore Storage.

BY MR. SHEPARD:

Q. Where did you see that film before?

A And I believe I seen that one in New Prague, or one

of the Harvestore meetings that they had.

Q When you talk about the Harvestore meetings they

had, what are you referring to?

A At least once a year they'd invite us up there. It was

sort of a winter thing, but I think it was an educational

thing. They kind of updated us on how to educate us on

how to keep putting up good haylage and all these things.

And if they had any new items that they sold and they

always had a dinner with it and we always got a card and

invitation to come up

Q How many years did you and your wife attend the

winter meetings?

A Mary never went too often to the winter meetings. |

usually went. She might have gone to one of them. We

went many years, | mean before and after.

Q You went many years?

A Yes

231

Q. [p. 177] Did you make an effort to go to the annual

meetings at New Prague every year?

A. Well, I made an effort, yes I was excited about

Harvestore and, yes, I would say I made an effort. Not

saying I made it every year, but yes, if --

Q. Can you give me an idea how many of those

meetings you believe you attended from 1969 to 1972? Or

1992. I'm sorry. From 1969 up to the present time.

A. Half a dozen.

Q. How many of those meetings did you attend before

1974 when you bought the silo?

A I'd say one, maybe two.

Q. At the winter meetings would there be a speaker or

someone who would come in and talk about things?

A Oh, yes. Yes

Q What do you recall was discussed at those meetings,

at the two meetings that you attended before 1974?

A Well, they discussed the advantages of the

Harvestore.

MR. BIRD. Now you've got him at two

meetings. He said one to two.

BY MR. SHEPARD

232

Q. Do you remember whether there was one or two

before 1974?

A. [p. 178] One for certain, possibly two.

Q Okay. Whether you were at one meeting or two

meetings before 1974, tell me what you recall about what

was discussed at those meetings.

A The advantages of the Harvestore system, the

oxygen-limited structure and how it all worked and how the

oxygen stayed out of that silo. It was an airtight structure.

Q Was there ever a speaker who would come and talk

to the group?

A Yes

Q Was that a farmer or was it someone from the

industry or who spoke at the meetings?

A Many times they had farmers or current owners of

Harvestores. And I would -- A. O. Smith personnel.

Q Do you remember who spoke at the one or two

meetings that you attended before 1974?

A I cannot remember the names of anybody, no.

Q Do you recall whether or not it was a farmer,

another farmer, Harvestore owner, who spoke at the

meeting?

233

A. I know that just about every meeting, even later on,

there always was some Harvestore, some happy Harvestore

owner that talked.

Q. Do you remember who any of those happy

Harvestore [p. 179] owners were that spoke at the

meetings?

A. I know Ben Zweber talked at one of them.

Q. D> you remember when you first heard Ben Zweber

speaker at one of those meetings?

A That was after the purchase of the silo. I'm not

going to say the year. I'd say a couple years afterwards

Q. Do you remember anybody else other than Ben

Zweber who came in and spoke to the group at those

meetings?

A. No

Q. Was he the only person that you recognized or

knew?

A He was the only one that | knew by name. But there

was many people there from the company.

Q. Had you known Ben Zweber before you saw him

speak at that one particular meeting?

A Yes, I knew Ben Zweber.

Q. How did you know Ben?

234

A. Well, Ben and I don't live that far apart, and I guess

Ben was probably one of the first guys who had a lot of

Harvestores, and so I guess we kind of envied Ben. We

thought Ben was a good farmer. And so over the years, I

guess before even -- I've known Ben for quite a few years.

s***

[p. 181) the haylage he was getting from the Harvestore?

A. That was the impression I got.

Q. Did he indicate to you that he was satisfied with the

way the silo worked for him?

A. Yes. That's the impression I got.

Q Did you get a chance to look at the haylage that he

had coming out of his silos?

A. Yes.

Q. What did the feed look like?

A. ___ Well, it was a lighter green, greenish -- I shouldn't

say light green, but it was sort of a greenish colored

haylage.

Q Do you remember anything else about how the

haylage looked?

A How it looked?

Q. Yeah.

235

A. It looked like, at that time I didn't know that much

about haylage, but it looked like haylage to me.

Q. Do you remember Ben Zweber teiling you anything

else about the haylage that he had on his farm?

A. I'm certain he mentioned the protein and the quality

of haylage he had. Yes. I guess that would pretty much

cover it as to quality that he had.

Q. [p. 182] What did he tell you about the protein in

the haylage that he had?

A. Well, he was very much satisfied with the high

protein level that he could obtain over baled hay that he

used to years ago. He used to bale hay, and he was very

satisfied with his Harvestore.

Q. And did he indicate to you that the protein level in

his haylage was greater than the level of protein in his baled

hay?

A. That was the impression I got, yes.

Q. Do you remember anything else that you and Mr.

Zweber discussed when you went to his farm?

A. We had talked about. he had just gotten a Heston

self-propelled swather from the Heston company that they

wanted him to try out. And it was sitting in the yard, he had

just gotten it that day. That's why I can remember the visit,

because it was sort of like a demonstrator that they wanted

him to try out. And so I know we talked about that self-

propelled swather that was sitting there.

236

Q. Did you believe that what Mr. Zweber was telling

you was true about his experience with the Harvestore silo?

A. Well, what Mr. Zweber was telling us was basically

the same thing that I had read in the articles and [p. 183]

seen on the movies, that this was almost, basically I would

have oxygen limited and oxygen would not come in contact

with the feed and that I would have better feed value and

healthier cows, more milk and more income.

Q. And those were all things that Mr. Zweber told you?

A. What he basically told us that day was the same

things that we had pretty much gone through in the

literature my wife and heard or read.

Q. How long did you spend talking to Mr. Zweber that

day you went to his farm?

A Half hour, 45 minutes.

Q Did you have the opportunity to ask him whatever

you wanted about his feed?

A Yes.

Q. Did you ever talk to Mr. Zweber after that particular

farm tour in 1974?

A. I've talked to Mr. Zweber several times. Many

times, several times.

Q Since 1974?

A Oh, yes.

237

Q. What have you talked to him about since then?

A. Well, he has been out to my farm several times

trying to have me switch my, shipping my milk to, from the

creamery we are to the NFO creamery that

A. [p. 187) At that time, yes

Q Can you give me an idea of how many twisted

stomachs or how frequently you had them in the herd?

A We never had a twisted stomach before we went to

Harvestore. I never, my dad and | never knew what a

twisted stomach was

Q So you never had one until 1974?

A I would say that's very correct

Q Between 1974 and the date when Mr. Zweber called

you, how frequently did you have twisted stomachs in your

herd during that time period”

A I'd say maybe two a year

Q Did you consider that to be an unusual number of

twisted stomachs to have in a herd of your size?

A I guess at that time | didn't give it that much --

listening to the vets and everything, | think it was just an

average herd | think a lot of people were having twisted

stomachs that were feeding the chopped feed That seemed

to create more of a problem

238

Q. So during that time would I be correct in saying that

you do not think you had any sort of an unusual problem

with respect to twisted stomachs for a herd of your size?

A _[p. 188] Before what time?

Q Before you talked to Mr. Zweber.

A I'd have to say I'm sure it was a concerned problem.

I don’t know what is a lot and I don’t know what is many.

I guess none is good, but a few of them -- it’s hard, without

looking at my records, | can't say if that was an

exceptionally large number compared to years later on as

we went along.

Q When you first experienced twisted stomachs in

your dairy herd what did you do about it?

A Well, the first ones, the veterinarian used to tell us,

we tned rolling them. At first they didn't operate on them

as much as they did later on We tried rolling them. And |

guess some of them we did have good success with and

some of they we didn't

Q You're talking about actually rolling the --

Animal over

And trying to get the stomach to untwist?

Yes

Oo -» © >

Did you talk to your veterinarians about that?

239

A. They were there at the time when we rolled them

They showed us how to do it at first.

Q What did they tell you about the cause of the [p

189) twisted stomachs?

A. I'd --

MR. BIRD: Wait a minute. What are you talking

about? Way back then? ’

MR. SHEPARD: Yeah.

MR. BIRD: At the time he first had the DAs?

BY MR. SHEPARD:

Q Right

A I guess the first time, I don’t think we talked about

it, as to how they got it. Just was something they had

Q At any point between 1974 and the time Mr. Zweber

called you in or around 1982, did you ever talk to your vets

about what might be causing the twisted stomachs?

A Yes

Q When do you first remember talking to your vets

about the cause”

A I can't remember when | first talked to them, but it

was -- | can't pinpoint any date to it

Q Which vet do you recall speaking to”

240

A Dr. Mittelsted was our vet then.

Qs“ Mittelsted?

A Yeah. Dr. Mittelsted.

Q

. __ [p. 190] What did Dr. Mitteisted tell you about the

twisted stomach?

as conversation with him, I do not believe that it was ever

mentioned as to what was causing this at that time.

Q So you never talked to Dr. Mittelsted about what

was Causing the twisted stomachs?

A. Not the earlier ones, no.

Q At some point did you talk to him about it?

A. Yes. I would say somewhere down the line it was

talked about as to the feed being chopped too fine.

When did you talk to him about that?

I couldn't say the year. 1 wouldn't know.

Was it before your conversation with Mr. Zweber?

Pp: Oo ee -@

Oh, yes. I'm certain it was.

241

Q. And he told you that the twisted stomachs were

caused because the feed in the Harvestore silo, the haylage

was being chopped too fine?

A Well, something, it had to do with the fine chopped

feed, yes. That was my understanding as to what was

Causing it.

Q. And did he tell you that it was being caused by [p.

191] something related to the Harvestore feed?

A. He didn't specifically say the Harvestore feed, I

Q. Did you talk to any of your other veterinarians about

the cause of the twisted stomach?

A Well, he was my veterinarian for quite a few years.

Then he passed away and we went to another vet, and by

that time we were pretty well informed as to twisted

stomachs and what to do with them.

Q. What did Dr. Mettelsted tell you to do to help

prevent the problem”

A To feed them some long-stemmed hay. A slice of

hay, long-stemmed hay would be good for them.

Q. Was that something you had been doing up until that

time?

A Well, we were feeding some long-stemmed hay. We

always did. But he advised us that was an advantage.

Q And that you should keep doing that?

242

A. Yes.

Q. When you talked to Mr. Zweber on the

when he called you, did you tell him all that information?

A. No. He just asked, he didn’t ask me for that. He

asked me if I was having a lot of problems. And in

[p. 200] going to have to have him read this thing from

cover to cover.

MR. BIRD: Well, I mean, all I'm saying is if

you're going to ask him detailed questions similar to what

you did with the other document, I don't see any way

around it other than to have him read it. But if you want

him to do a general broad-brush, | think that's easier as long

as it's understood that that’s what he's doing as opposed to

nitpicking each page. | think we ought to have that

understanding That's all.

BY MR. SHEPARD.

Q Okay Let's do that Mr. Klehr, first of all, do you

recall seeing this document anytime before you started the

lawsuit in 19917

A Yes, I do

Q When did you first see this?

A This was before 1974.

Q

How did you get that document?

243

A. This was in our house.

Q. Do you remember how you got it in your house?

A. Well, my dad had a Harvestore and he left all farm

operating equipment books for any equipment that he

bought, that stayed with the farm.

Q. So am | correct this document was left in your

[p. 202] structure, the air is drawn into the breather bags."

That was very interesting.

BY MR. SHEPARD

Q. You're reading from the paragraph down in the

lower left-hand corner”

A. Yeah. I'm sorry if I didn't --

Q. Yeah. 1 just want to make sure it's clear.

A. And the first seritence, “The Harvestore system is

much more than a silo It is an advanced system of storing

and processing livestock feed "

Q Why was that statement at the top of the page

significant to you”

A Because | was, at this point | was comparing two

silos. 1 was comparing a cement stave silo to a Harvestore

unit.

244

Q. And what did this particular statement lead you to

believe that was important to that comparison that you were

making between the Harvestore and other forms of storage?

A Because of their advanced technology they were

going to keep the oxygen out of the feed. It was an

oxygen-limited structure.

Q. And with respect to the paragraph at the bottom of

the page about the oxygen-limited storage, why was that

information important to you?

A. [p. 203] Because it says here that the advanced

system, so in other words, they had done a lot of

engineering already on this thing. Advanced means that

they were ahead of times.

Q. Well, let me ask you this question: Down at the

bottom where you talk about, it says, "The primary design

feature that makes oxygen-limited storage possible," what

was it about that particular paragraph that was significant to

you? Why was that information important to you?

A Because they talked of the breather system, of the

air not coming in contact with the feed.

Q. Why was that important to you?

A Because of the experience I’ve had on the farm over

years and knowing what air with contact with feed would

do.

Q. What did you know that air contacting feed would

do?

245

MR. BIRD: Object. You've already gone over

this, Counsel. This is like the third time you’ve asked him

that very same question.

MR. SHEPARD: Well, they’re his words.

MR. BIRD: Well, I’m going to object. You've

already covered this area. You've already asked him these

questions about oxygen getting to

***

[p. 208] nutrition growth, wilt to 35 to 55 percent moisture,

chopped at a fourth to three-eighths inch cut and process

through a Harvestore."

I always felt by chopping it a little bit sooner than --

at 35 to 55 sure beats the baled hay, and I could save a lot

more protein there. My baled hay, I had to wait to 29, or

from 25 to 30 percent moisture.

Q. You had to wait until it was 25 to 30 percent

moisture before you cut it?

A. Well, no. Before I could bale it. The baling end, I

had to wait a lot longer. It probably was in the 20 to 25

range with baling, maybe 30.

Qs Okay.

A. Page 27, "The best assurance of profitable haylage is

to cut it at the right time, let it wilt, chop it fine. This gets

as much as possible of the protein rich alfalfa or other

legumes or grass leaves and fine stems into the Harvestore

246

structure. Purchase of costly protein supplement is greatly

reduced or eliminated."

(Pause.) And on page eight. The first paragraph,

"There is a old saying that any line of products is only as

good as the service behind it. A.O. Smith Harvestore is

proud of the U.S. and

ses

, [p. 211] Okay.

A

Q Do you recall seeing this document before the

lawsuit was started in 1991?

Yes.

Do you recall when you first saw it?

This I seen after I, after 1974.

A

Q

A

Q. Do you remember when you first saw it?

A I could not tell you the year.

Q

Do you remember how you obtained a copy of the

document?

A. I'm sure through the mail.

Q. Do you remember who mailed it to you?

A Well, I would imagine -- well, maybe A.O. Smith, or

MVBA. Either one. It's hard to -- it's fairly vague what

you're looking at. It’s a faded color.

247

Q. I appreciate the fact that the photographs don’t

reproduce very well. Can you tell me what, if anything, in

this document was important to you?

A. Well, page seven.

MR. SHERAN: Excuse me. Did he say he saw this

before or after 1974?

MR. BIRD: After.

THE WITNESS: After. About “Our breather bags

work over a wide temperature range." Page seven. "The

Harvestore breather system [p. 212] protects feed from

oxygen throughout the normal daily range of temperatures

experienced in most parts of North America."

On page 16 they talk about the construction of the

silo and how “Bolts are inserted where sheets overlap and

tightened with speed wrenches. Then they’re set to A.O.

Smith specifications with hand torque wrenches."

And they show a picture of the bolts and the sheets

overlapping as the bolts are tightened. Sealants flow around

them “to create a sound joint that will resist leaks for many

years."

Q Why was that important to you?

A Well, these are things I read after I bought the silo,

but it was, I guess, updating information that I had read

previously.

248

MR. BIRD: Wait a minute, now. Look through the

whole document. He's asking -- you want him to read this

whole document, carefully?

MR. SHEPARD: No. I mean, I just want to know

MR. BIRD: Well, he's closing the book before he

even looked at all the pages. And I want to make sure that

if you're going to hold him to this that I want him to read

the whole thing

[p. 218] any business "

Q. Let me back you up to page two, the article there

that’s entitled Haylage Boosts Top Production Even

Higher. Was there anything specifically in this article that

was significant to you, or was it simply of interest to you

that there was an article here about a dairyman whose milk

production was apparently projected to hit 20,000 pounds?

A. I guess right now I would have to say it was the

article as to those guys increasing their production with the

Harvestore system

Q Okay

A. There is another story on page six of a successful

farmer, a story of how they increased their production with

-- by going to the Harvestores they could reduce the corn

silage and put up more haylage and save on protein.

249

On page six, the oxygen-limiting storage makes top

quality feeds. There they have the moon and the sun. And

under oxygen-limited, about two-thirds of the way down it

says, "Feed storage made possible by Harvestore's time-

proven breather bag system described at the right minimizes

feed losses from oxidation, mold and other enemies of feed

quality. Anaerobic bacteria initiate a

[p. 220] the safest place to put money, the Harvestore is the

most secure repository for valuable grain and forage crops.

And just like the bank, the Harvestore can pay big dividends

in increased return per acre, greater feeding efficiency and

reduced labor requirements.

"These benefits are inherent in the Harvestore

because it is truly a system, a system designed to solve the

major problems of on-farm feed handling which have

troubled farmers for centuries."

Q. And what was it in that particular part of this

document that you thought was important?

A It's a good investment

Q. Okay.

A. The center fill tank, on page seven, "When you fill

with a PTO-powered blower, the Harvestore center fill pipe

assures that grain or forage follows the proper flow path for

best performance.

250

"When feed drops directly into the structure's center,

your Harvestore unloader works most efficiently to assure

smooth, uninterrupted feed flow throughout the year."

Q. And what was it about that aspect of the document

that you thought was important?

[p. 229] Are you ready to give an answer on something?

THE WITNESS: Yes. I'd like to have your

attention. On page four in Exhibit 6, What Is a Harvestore?

In about the middle of the page.

BY MR. SHEPARD:

Q. Can I see where you' re looking? Okay.

A "A Harvestore system is more than a silo. It's an

entirely new concept of feed management. Because of its

durable construction, oxygen-limited environment and

bottom unloading features, it gives the farmer nearly

complete control of his feed management allowing him to

harvest and store his crops for maximum nutritional value

and to feed them when and how he desires. The Harvestore

farmer is no longer at the mercy of the whims of nature and

the economy.

"Glass fused to steel construction is a basic key to

the success of the Harvestore design. The heavy steel plates

that make up a Harvestore are coated on all sides with a

tough layer of cobalt blue glass fired in 1,600 degrees

Fahrenheit to create a firm bond between the steel and the

glass."

251

Qs Okay.

A. _ [p. 230] And then the top paragraph on the same

page to your right, "To prevent spoilage of feed while in

. _ “To prevent the entire oxygen, each Harvestore

plate is joined at the edge with durable sealer and securely

bolted to its neighbors. The Harvestore bolts -- there are

more than 11,000 of them in a 25 by 80 Harvestore -- have

rounded plastic-capped heads on the inside of the unit to

resist Corrosion and mairain a smooth surface On the

during construction "

I relied heavily on the oxygen-limited breather

system that they had

Q Okay. And we've already talked about the reasons

for that, is that right?

A Yes It seems that every page, or many pages in

these books always talk about the oxygen-limited I guess

it's all over. Wherever you look, that's what they advertise

[p. 237) of, loss of feed value When it's in a conventional!

silo it's much higher, it says.

BY MR. SHEPARD.

252

Q. Okay. Where are you looking, just so I 'm clear on

what part of this you're looking at now?

three to four percent of dry matter will be lost during

storage in a Harvestore system, and most of that is the

result of natural fermentation process that makes palatable

feed By contrast, losses in other types of storages can be

considerably higher.”

Q And why was that paragraph important to you when

you read it?

A Well, it convinced me that I was still doing the nght

thing, that 1 wasn't getting any loss and | made a good buy.

Number 22 on page six.

Q That entire paragraph?

A Yes, | would say so.

Q And why was that paragraph important to you when

you read it?

A It's pertaining to better animal health. [p.238]

"Harvestore” system owners report general improvement in

: rae eo en ote

silage at 60 to '

pany trate Aan r= tert Dust and mold in

dry hay can also be harmful to animals’ health. Harvestore

system haylage provides dust-free and-easy-to-digest

253

rations " Another reason to believe that I bought the best

silo.

Q. Okay. Is there anything else in this exhibit?

A Page 10, and 11. They're both the same. They're all

Harvestores and making lots of money.

Why were those stones important to you?

A. It assured me that it's obtainable from owning a

Harvestore.

Q Okay. Is there anything else?

A. No, that would be all.

MR. BIRD In fairness to the witness, he's been

working a lot harder than we have | want to ask him if he

wants to have a break here

THE WITNESS That would be fine.

MR. SHEPARD Okay That's fine.

(Brief recess )

BY MR. SHEPARD

[p. 242] on their own

254

Q. What did this article make you think with respect to

what you were doing on your own farm?

A That my Harvestore system was working just fine.

Q __ When you say that, are you talking about the high-

moisture corn?

A. — High-moisture corm, yes. Then on page 14 they

have a conclusion of the study that they did. “The high-

moisture corn preserved in a Harvestore resulted in

excellent milk production. Milk composition was normal

after adjustment of cows to high-moisture com. Body

weight gains of cows reflected high energy in take with low-

palatable to dairy cows.” | found that the cows always liked

my corn. So it made me feel that 1 was doing the right,

going the right direction.

Q. Were those conclusions that are stated there

consistent with the experience you had had on your farm

f 1) higt . corn”?

A My cows liked my high-moisture corn

Q How about the other conclusions that are stated

there”

A Well, it's hard to say the high-moisture corn

ine Barvenore” vesuited incnsetont ip. 260)

milk products. It would be easy to say that if corn was

only thing you feed But when you feed five, six different

things, you can't give all the credit just to one just because

it's in there. You got to give credit to the others.

255

Q. Well, when you read this about high-moisture corn

resulting in excellent milk production, did you read this and

think to yourself, yeah, that's true of my farm, too?

A. That I'm getting that 2.2 percent milk?

Q. Or that you're getting excellent milk production?

A. I guess at the time | felt maybe | was getting

excellent milk production. At the time

Q. Do you know what your milk production was at the

time you saw this, or read this?

MR. BIRD: I'm going to object. There's no

foundation. He can't recall when he read it, so it's not

possible for him to --

BY MR. SHEPARD:

Q. That's all I'm asking He can tell me if he

remembers

A No, I would not remember (Pause)

Q. Page 24. “Why is a Harvestore called an

limited crop processing system?” They did research

“Authorities in this research bulletin [p. 244] have covered

the specifics of feed making in a Harvestore oxygen-limited

structure. Their research shows a very decided advantage

of using the oxygen-limited method of crop processing and

storage.

“It is important to the final quality of the feed and

the performance of the livestock we have seen that air be

256

limited while the crop is in storage. The Harvestore

structure is as sealed a unit as can be practically assembled

and operated with present technology. After filling the

Harvestore structure it is closed using the top latch. Any

oxygen in the air trapped in the structure at filling is quickly

used up by the fermentations in the feed being processed.

"In fact, it should be completely utilized three to

four hours after filling doors are shut in the fermentation

process. Plant and bacteria enzymes take the starches and

convert them in part to sugar. Sugar, through bacterial

action, are converted to acids and carbon dioxide. As the

acidity increases enough, it brings to a halt a bacteria action.

The oxygen is used in the process. Soon there is a low pH

and an absence of harmful oxygen. In a way, it is similar to

a

[p.254] At what time?

Yes.

I'd have to say very recently.

Since you started this lawsuit?

Yes

Let's look at Exhibit 14, please.

MR. BIRD: “This is along one. He's going to

take some time going through it. Do you mind going off the

record so I can ask you some questions?

on > © > © >

257

(Off-the-record discussion)

BY MR. SHEPARD:

Q Mr. Klehr, looking at Exhibit 14, do you recall

seeing this document before you filed this lawsuit?

A Yes, I do.

Q Do you remember when you saw it?

A. Back in probably '83, '84.

Q. Do you remember how you got it?

A

Q

Probably, !'m certain it was sent to me

A They don't have page numbers on here, but I beli

it's page three. No. Maybe four. Page four. ep

Q. _[p. 255] What does it say at the top?

a Oh, boy A Program to Efficiency: Manage Your

Q Okay. I gotcha.

A. The article under the Harvestore structure is

oxygen-limited. "Forage or grain is protected from the free

access of air by a breather system, helping prevent spoilage

and production and mild fermentation that gives feeds an

258

appealing odor and palatable taste. Breather bags expand

and contract to relieve changes of pressure inside the

structure as outside temperatures rise and fall. Outside air

doesn't have to enter the structure because over

fermentation oxidations are minimized. More nutritions are

preserved. That means more feed power to help your

livestock perform at their best."

Q. Is there anything else here that you recall reading in

‘83 or '84?

A. No. That would be all.

MR. BIRD: Shall we quit?

MR. SHEPARD: Sure. That's fine. Let me

indicate for the record that we still have a number of

advertisements that we have not had a chance to review

with the witness. In

[p. 269] one of the things that Mr. Deutsch told you is that

you could expect increased milk production when you put

the Harvestore on the farm. Is that correct?

A. Yes.

Q. Did he make any statements to you about how much

additional milk production you could expect from use of the

Harvestore?

A. Yes.

Q. What did he tell you?

259

A. __ From three to five pounds increase.

Q. _—_ An additional three to five f milk

gar Gat pounds o per cow

A. Yes.

Q. And did you understand that tc ve a one-time

increase or something that you would get each

used the Harvestore? “ aa

MR. BIRD: I'm going to object. What do you

mean by one-time increase? As opposed to each year?

BY MR. SHEPARD:

Q. Well, I guess what I mean is, did you understand

that to mean that your production would go up three to five

pounds per cow per day once you started feeding from the

Harvestore and then it would stay at that level, or did you

understand it to mean

[p. 273] me, but I recall that the structure was installed or

actually constructed on your farm sometime the following

February, the end of February 1975. Does that sound right

to you?

A. It's very close, yes.

Q. And after you had the silo installed on the fi

arm, how

soon after that time in February 1975 did Ctuall

feed into the silo? nena fom

260

That following spring, late May or early June.

A

Q. And what did you fill it with?

A Haylage.

Q

Q. Do you remember how full you filled the structure

during that first cutting?

A. I cannot remember.

Q. Well, based on your experience over the years, can

you give me an approximation of how full the structure

would be after one cutting of haylage?

A. When you look down from the top, you can never

see -- | mean, it's so dark down there you don't know where

your line is. I have no idea how much we put in there.

Q. Did you put more than one cutting of haylage in the

[p. 274] silo in 1975?

A. Yes.

Q. How many more cuttings after that first cutting did

you put in?

A. The second and third cutting were put in. I can’t

recall if a fourth cutting was made that year or not.

261

Q. Do you remember when first started feeding

of the silo? sie Aa

A. I would imagine a few days after we started filling.

Q. What guidelines if any did you follow when you

were filling the silo in 1975?

A. We cut the hay early, chopped it very fine, and filled

it as fast as we could, I guess. Or we chopped hay all day

and filled silo.

Q. And were those all guidelines that Mr. Deutsch had

told you to follow?

A. About cutting hay early -- well, these are the things

that, yes, I'd say Mr. Deutsch told me that. The brochures

told me that.

Q. Do you remember what moisture content you put

the feed up at”

A. Anywhere between 35 and 55 percent moisture.

Q. When you first began feeding the haylage out of the

sss

Q [p. 276] Right.

A I can't recall what it smelled like the first days I took

it Out.

Q. Did you make any sort of observations about the

temperature of the feed when it came out?

262

MR. BIRD: When?

BY MR. SHEPARD:

Q. Right in the beginning, when you first started

feeding out of it in 1975.

A. The first days? It was, it might have been a little bit

warm, but this was expected to be. But I guess whatever it

was, it definitely come out just a little bit warm, yes.

Q. What do you mean when you say it came out a little

bit warm?

A Well, warm to the touch, I believe. Just anytime -- I

knew fermentation would be taking place, and so I felt that

it was a little bit on the warm.

Q. Did the appearance of the feed change at all during

the summer months of 1973 when you were feeding out of

it?

A. Yes

Q How did it change?

A Well, it got somewhat darker. Then it turned into

[p. 277] a browner color.

. ee

scaly

Q. _ When you say browner, Can you be more specific

about how it looked?

A It had that brownish color.

263

Q. Did you notice any other changes in the feed over

the course of the summer in 1975, if you remember?

MR. BIRD: In the color?

BY MR. SHEPARD.

Q. Any sort of -- anything you saw.

A. Well, as the color got to where it was in the

browner, then the molasses smell would come and the smell

of the haylage was -- like I said, the first days there wasn't

no smell of haylage But as it moved on, yes, the aroma, the

smell of the haylage, like molasses, and it stayed that same

color.

Q. When you say molasses, was it a fermented smell, a

pickled smell, or are you describing something else?

MR. BIRD: Wait a minute now. Feed can be like

wine. Everybody has a different description of it. You

know, you're giving him different adjectives that may mean

different things to him than they mean to you.

MR. SHEPARD: | don't want to --

MR. BIRD. Well, you're arguing with

[p. 280] then. From let's say September of '75 until the end

of the year 1975, for the fall months and the first early

months of winter, what did you notice about the feed?

264

A. It had the dark, the brown color and smelled like

molasses. It was warm to the touch.

Q. Did the color of the feed change at all during those

months compared to the color you had seen during the

summer months?

A. When you say summer months, are you talking

about the first days that I opened it, started?

Q. Well we talked originally when you said, I believe

you said the first few days when you started feeding out of

it the feed was greenish color.

A. Yes.

Q. And then we talked about over the course of the

summer and you said it started to look brownish.

A Yes.

Q I'm asking you now, during the fall of 1975, from

September until December, whether the color changed or

looked any different to you compared to the color you had

seen during the summer months?

No.

A

Q. Did the smell of the feed change at all?

A No.

Q

| [p. 281] Did you observe any changes in the

temperature of the feed?

265

A No.

Q. _ Did you see any mold in the feed?

A. You're talking what period now?

Q. __ Between September and December of 1975.

A No.

Occ Did you sea any spoilage in the feed from September

A No.

Q. Let's talk now about the period of time from January

of 1975 through May of 1975, during the winter and then

into the spring of 1976. Did you notice any change i

appearance of the feed during that period? _——

A No.

Q. _ Did the feed look any different to you from January

to May than it did in the fall of 1975” ages

MR. BIRD I guess ‘re chang v¥

you ng. You said in

the spring and now you're going to May”

BY MR. SHEPARD.

Q Well, I'm not trying to -- I guess I'm usi

, using the terms

to mean the same thing. I'm talking about the period from,

Sate Denar cea chenover you began Gling in

again. I'm just [p. 282) using May because that’s when

said you thought you had filled it in 1975 say

266

So my question is, during that period from January

of '75 to May of 1976 did the feed change, did the

of the feed change at all compared to what you

had seen in the fall of 1975?

A No.

Q Did you notice any changes in the smell of the feed

from January until May?

A No.

Q It still had a molasses smell to you?

A Yes

Q And the feed still appeared to have a brownish

color?

A Yes

8 eee eciat

fall of 1975”

A No

Q And so the feed was still warm to the touch?

A Yes

Q Did you see any mold in the feed from January to

May of 1976?

A No

267

Q. _[p. 283] Did you see any spoilage in the feed from

January % ~ fay of 1976?

A. No.

Q. _ Did you empty the silo completely before you filled

it again in the summer of 1976?

A. No.

Q There was still some feed left in the bottom of it

when you filled it again?

A Yes.

Q And when did you start filling it again, do you

remember?

A Late May

Q 0 you have any idea how much was left in the

bottom of the structure when you began filling it again?

A I have no idea

Q _— How did the feed that you saw coming out of the

Harvestore during that first year of feeding compare to the

haylage you had seen on the farm tours that you went on

with Mr. Deutsch before you bought the silo?

A It was very much like what I had seen.

Q. _ How did the feed from your Harvestore compare to

the haylage you had seen in the stave silos when you went

on the farm tours with Mr. Von Bank?

268

A. [p. 284] Very comparable.

Q. How did the feed that you had during that first year

of feeding compare to what you had been led to expect by

Mr Deutsch when he sold you the silo?

A _ How did the -- repeat that question.

Q Sure. How did the feed compare to what you had

been led to expect by Mr. Deutsch when you purchased the

silo?

MR. BIRD. Are you talking about observations

now, again?

MR SHEPARD Yeah

MR. BIRD You re still on that?

THE WITNESS. It compared good to what I

expected

BY MR SHEPARD:

Q From what you could see, the feed appeared to be as

good as Mr. Deutsch had told you it would be?

MR. BIRD. Well, I'm going to object to that. Now

you're using good.

BY MR. SHEPARD:

Q. Do you understand the question?

269

MR. BIRD: I object to that on the grounds that it's

vague as to what you mean by good.

THE WITNESS: Yeah. I believe it was as [p. 285]

good as what Mr. Deutsch had told me it would be.

BY MR. SHEPARD:

Q. Did it look like good feed for the entire first year

you fed from it?

A You're talking from what date to date?

Q. From May of ‘75 when you filled it until May of '76

when you filled it for the second year.

A. Yes. The feed looked, it looked just like 1 expected

it to be.

Q. Did you talk to Mr. Deutsch at all about the feed

during that first year that you were feeding out of it?

A Yes, I'm certain.

Q. What do you remember talking to him about?

A. I know he came several times and we looked at it,

we picked it up, we smelled it. Everything looked fine

Q Did you indicate to him that you were satisfied with

the feed that you were getting from the silo?

A Yes.

270

Q. Were you satisfied with the way the silo was

operating?

A Yes.

Q. Did you and Mr. Deutsch talk about anything else

during those times when he came to your farm,

*e¢

[p. 287] MR. BIRD: What feed?

MR. SHEPARD: The feed that was coming out.

MR. BIRD: The new feed?

BY MR. SHEPARD:

Q Well, no. I understand, just so it’s clear, that you

had some feed left in the silo from the previous year when

you filled it again in '76. Correct?

A. Yes. Yes.

Q And I understand that while you were filling, putting

a new cutting on top, you were still feeding off the bottom

of the previous year's cutting, correct?

A. Yes.

Q. _ How did the feed appear to you during that time

period in the summer of 1976?

MR. BIRD: You're talking about alfalfa that had

gone in the year before? Is that what you're talking about?

271

BY MR. SHEPARD:

Q. Yes. That's --

A. I'd have to say somewhere maybe during July and

there was a few chunks of little mold would [p. 288] come

out.

Q. Okay. Up until July or August were you still feeding

the haylage you had put in the previous year?

A. Well, by this tine it was getting to be a mixing. |

can't tell the difference because it all comes out the same

color. I couldn’t tell you at what point we were feeding one

or the other.

Q. Well, during the months of May and June and into

July of 1976 how did the feed appear to you that you were

seeing coming out?

A. It appeared like it did all winter long.

Q. Did it have the same smell you had observed during

the winter and fall?

A. Yes.

Q. Did it have the same temperature or feel to it that

you had observed during the winter and fall?

A. Yes.

Q Now, in July or August what did you observe? And

we're talking about 1976 now. In July or August of '76

272

what did you observe about the feed during that time

period?

A. We noticed a few little chunks of mold would come

out.

Q. What did the chunks of mold look like?

A [p. 289] They're just little white chunks about the

size of a spoon or something. Not many of them, but there

were some there.

Q About the size of a spoon?

A. They were just little things. Could barely see them,

but yea, there was a few little ones there.

Q. What color were the chunks of mold that you saw?

A A little lighter color, light, maybe white.

Q How long a period of time did you see these chunks

of mold coming out with the feed?

A I believe probably for about a month, something like

that

Q And that would have been in July or August?

A Yes

Q Did you see any spoilage in the feed during July or

August?

MR. BIRD: Other than the mold?

273

MR. SHEPARD: Other than the mold.

MR. BIRD: You're asking about what he

understood to be spoilage at that time?

BY MR. SHEPARD:

Q. I'm just asking what he saw, yeah.

A. What's the difference between spoilage and mold?

Q. Maybe there isn't any. Did you observe anythin

other than the mold that you considered to be ei

[p. 292} change at all during the spring. wint

19779 g pring, winter and spring of

MR. BIRD: You're talking about alfalfa now, right?

BY MR. SHEPARD.

Q. I’m assuming you put alfalfa haylage in the

structure.

A. Yes.

Q. Just so we don’t run into a problem later on, was

there ever a time between 1975 and 199] when you put

anything in the 25 by 80 Harvestore other than alfalfa

haylage?

A. We put corm silage in.

274

Q. Did you do that more than once?

A. Yes. There was numerous times we put corn silage

in the fall on top of the haylage.

Q. Okay. When was the first year you put corn silage

in on top of the haylage?

A. Oh, that, I could not give you. I have no idea what

year it was.

Q. Well, we were talking just a moment ago about the

feed during the latter half of 1976 and into 1977. During

that time period had you put any corn silage into the silo

that you remember”?

A No.

Q. [p. 293] Did the appearance of the haylage change at

all from what you've described to me already during the

period of time from January of 1977 until May of 1977?

A. No.

Q And how did that feed, again, compare to what Mr.

Deutsch, what you had bean led to expect by Mr. Deutsch

and what you had read about the Harvestore silo before you

bought it?

A. It appeared to be what I expected.

Q. Were you satisfied with the feed you were getting?

A. I was satisfied with the quality, yes.

275

Q Do you remember talking to Mr. Deutsch at all

> ieee cael erie,

07

A. Yes.

Q. What do you remember talking to him about?

A. Well, we had talked about the little white molds, or

chunks that came out. And he says that that is the top layer

of the silo, that you will see a little bit of that.

Q. Are you talking about this time period in July and

August of 1976?

A. Yes. Yes.

Q. And this was after you had seen the chunks of mold

[p. 294] that you talked about?

A. Yes.

Did you bring that up with Mr. Deutsch?

Yes.

Why did you talk to him about it?

Well, I was concerned about the little molds.

Why were you concerned about them?

rF OF DB FF A

Well, I hadn’t seen it on any of the brochures or any

of the farm tours, nobody showed me little molds, so I was

concerned why I had some in there.

276

Q. When you saw those chunks of mold how did that

compare to what you expected to get from the Harvestore

silo when you bought it?

A Well, with my experience on the farm, I expected

that with Mr. Deutsch telling me that that was from the top

layer of the silo, I expected, I understood and accepted the

reason.

Q. But before you talked to Mr. Deutsch, when you

saw the mold, is that something you had expected to see

based on what you had been told and what you had read

about the Harvestore?

A. No, I didn’t expect that.

Q. And tell me as best you can, and I know this is a

long time ago, but tell me as closely as you can what Mr.

Deutsch told you when you talked to him [p. 295] about the

mold.

A. Well, he was not concerned, because that’s a very --

I had the understanding that that was a common thing,

you're going to see this layer sometimes between fillings of

just a very light, very light mold.

Q. Did he explain to you or tell you at all why it was

common to see a layer of mold between the fillings?

A. Well, it’s when you put the last of it in, the way he

explained it, you close the doors and the hatch is on top.

And there is a little oxygen in there and it has to turn into

harmless gas first, I guess, and so there is a little time period

there where there is a little damage.

277

Q. Did he explain to you how the oxygen got in there

through he top hatch that you just talked about?

A. Well, yes. When you’re filling that you definitely,

when you close the doors the top of the silo is still full of air

until you close the door. I understood that, yes.

Q. Do you remember anything else he told you about

the mold that you talked to him about at that time?

A. No, I cannot recall anything else.

Q. Did you show him the feed yourself? Did he come

[p. 296] out and actually look at it?

A. At what point?

Q That July or August time period of 1976.

A. I believe I did not show him the chunks. I don't

believe he was out on the farm just on those days, no, or

during that period.

Q. Did you talk to anybody else about the feed when

you saw those chunks of mold in July or August of 1976?

A. No. I did not talk to anyone else then.

Q. Did Mr. Deutsch tell you or suggest to you that you

do anything differently when you were storing your feed

when you told him about those chunks of mold?

A. No.

278

Q. I'm not quite sure where we left off, but from say

September of 1976 until December of 1976 -- maybe you

already told me this.

MR. SCHMITT: I think you’re on the winter and

spring of "77.

BY MR. SHEPARD:

Q. Just so I'm clear in my own mind, during that period

from September of '76 to December of 1976 did the

appearance of the feed change at all compared to what you

had seen before you saw the mold?

A. [p. 297] No

Q And from the period of January 1977 until May of

1977 what did you observe about the feed?

A I believe maybe as it got real close to spring we

probably did see just a little more mold, because that spring

we did run it empty We went empty before filling.

Q. When did you see the mold in the spring of 1977, as

best as you can recall?

A. It was just the last week or so before it went empty.

Q. And what did the feed look like during that time

period?

A. Up to that time period it looked like it normally did.

Up to it. And then during that time period it was a little bit

darker with some more white chunks.

279

Q. When you say it was a little bit darker, how would

you describe the color of ii? ;

A. _—— Weel, just a little darker brown.

And what did the mold look like?

Little white chunks

How big were the chunks?

> © >

Oh, they were very small, very small

Q. Do you remember when you emptied the silo that

298) year? [p

A | It had to be about two weeks before the silage was

coming in, I'm very certain

Q Would that be sometime roughly in May then?

A. Yeah Early part of May maybe Early May

) MR. BIRD: Where are we at? We're in May of '77

BY MR SHEPARD

Q Right When you saw the mold in the feed in that

last week of feedout in May of 1977 did you talk to

anybody abut the feed then”

A I believe my serviceman or my salesman was out

then, yes.

280

Q. Was that Mr. Deutsch?

A. Mr. Deutsch.

Q. What did you say to Mr. Deutsch when he was out

there?

A I told him, | showed him the feed, what was coming

out. And he explained that tha: ws the end of the silo

coming out and that's what happened, because about a week

later it was empty.

Q Did he tell you anything else about the feed?

A Well, no. The molasses smell wasn't there just at the

end no more. That's all we talked about. No, he didn't say

anything else.

Q [p. 299] How did the feed smell during that penod

at the very end?

A It had sort of a musty smell.

Q How did that, the feed at that time that you showed

to Mr. Deutsch, compare to what you had expected from

the Harvestore when you bought it”

MR. BIRD: You mean the moldy, musty feed”

BY MR. SHEPARD:

Q Right

A I guess I did not expect that.

Q Did Mr. Deutsch tell you anything else about the

A. No.

Q. _ Did he make any suggestions to you about the way

you were using or managing the silo?

A No.

Q Did ‘ —_ .

- you fill the silo again in May of '77 with alfalfa

A Yes.

Q __ Do you remember how many cuttings of haylage

you got in 1977?

A I cannot remember how many cuttings but

lot of haylage in that year r ann

Q How is it that you remember that 1977 was a year

Q. _[p. 301) Did it look just the way it had in the

previous two years?

Yes.

Le)

Had the same brownish color?

>

Yes.

And did it have the same temperature feeling?

Ce)

Yes.

Did it have the same smell?

Yes.

During the fall of 1977, from say September to

December of 1977, did the appearance of the feed change at

i? Be fe.

In what time period?

From say September of 1977 to December of 1977.

No. It all stayed the same.

Did you top the haylage off with corn silage in that

I don't believe so

A There was a few times in between there where we'd

get just a few little chunks of mold, and then it was gone

again And then towards the spring we went through the

same thing we had done the year before for a week or so.

But otherwise, through [p. 302] the winter it stayed the

mold

Q Did you have any -- I thought you said you saw

some little chunks of mold somewhere along that time

period before you got to the last week. Is that right?

283

A. Yes.

0. When was that, do you remember?

A. Oh, I have no idea. It was -- I could not tell you

what periods or what time it was. It was during the winter

when just a few little chunks come out.

Q. How long did you see those little chunks of mold in

the winter?

A Just a few days and then it was gone.

Q And after those few days the feed returned to its

normal appearance”

A. Yes.

A The last maybe two weeks it got very and we

seen a significant amount of molds pony

Q When you say significant amount of mold, was it

more mold than you had seen the first two years?

a No. The first, not the first two years, because the

year we didn't see any mold Repeat what [p. 303

pap oa eg [p. 303) you

Q Okay I thought during that --

A First year we didn’t go empty, so we didn’t see any

284

MR. BIRD: You're going from June to June on

your years, right?

BY MR. SHEPARD:

Q. Yeah. I can rephrase the question. Was it more

mold than you had seen at the end of the first two cycles of

feeding?

A. At the end of the second -- okay. At the end of the

first -- about the same.

Q. Okay. But how long did you see the mold in the

feed during that time?

A I thought we were talking about the end of the silo

Q Right

A Oh. I'd say just about two weeks, just before it

went empty.

Q. And the feed had a musty smell during that time?

A Yes. Yes

Q. Did the, color of the feed change at all during that

A. Well, it was much darker and, much darker brown,

[p. 304] yeah.

Q. Did you notice anything about the temperature of

the feed during that last two weeks?

285

A No.

Q. What did you do with the feed at the very end, that

last two weeks?

A. Well, I'm positive that when it got to the point

where it was getting pretty bad we hauled it -- we had

maybe a load or two, manure spreader, one or two loads

that we hauled out in the field.

Q. When you said -- how many loads of feed did you

haul out to the field that year?

A Well, two manure spreaders full, I believe.

Q. In 1977, the previous year, did you feed all the feed

out, or did you have to throw some out?

A. We threw some out that time, too. We went in and

cleaned out the silo and there was some moldy chunks in

there that we threw out.

Q. How much do you remember throwing out the

previous year?

A I] cannot remember the amount

Q. Was it more or less than two manure spreaders, if

you remember?

A. Not more. Somewhere in there

Q. And in 1976, in July or August that first year, did

286

[p. 310] or the following year I cannot pinpoint it out.

Q. Well, whether it was in the spring of 1979 or the

spring of 1980, can you tell me what you observed the year

when you had apparently more spoilage than you had had

the preceding years?

A. Well, the one year it got quite spoiled at the end, but

much sooner than it normally did. It was much darker and

much more mold.

Q And this was in the spring of either 1979 or “80?

A. Well, it’s -- you could put a bunch of years together.

I can’t pinpoint if it was this year or that year or maybe the

next year, but I know there was years we had more damage

in the spring than we had other years.

Q. But it was somewhere in that ‘79, ‘80 time frame?

A Or maybe ‘81.

Q Or ‘81?

Q In an area, yes.

Q

When you said it spoiled sooner, when do you recall

observing spoilage that year?

MR. BIRD: I think he said there were some years.

Now you’ re asking him to specify a particular year.

MR. SCHMITT: He did indicate there was one year

that he had -- that was his phrase, “one [p. 311] year.”

287

! MR. BIRD: I think if you read his answer back he

said there were some years where he had more spoilage.

MR. SCHMITT: Later on, but when we got into

this reference he referenced one year.

MR. BIRD: _I don't know if that’s true or not, but

you can go ahead and answer.

THE WITNESS: Are you talking of a certain

or in that time frame? a

BY MR. SHEPARD:

Q. Well, I thought I understood you to say that

somewhere whether it was 1979 or 1980 or 1981,

somewhere around in there you remember a year where you

had more spoilage than you had had in the previous years.

A. Yes.

Q. _ Was it just one year or were there more than one

years in that time period where you had --

A. I'd say one year for certain.

Q. And whatever that one year was, whether it was

1979 or 1980 or 1981, tell me when you first saw the

spoiled feed that year.

ra . It was toward spring. I'd say very much around in

ar [p. 312] What did you see in the feed in April of that

year’

288

A. It was dark, a very dark, and a lot of mold.

Q. When you say very dark, can you describe the color

of it?

A No. But it was darker than what I was normally

used to feeding.

Q. Was it dark brown or was it black?

A. Dark brown.

Q. And what did the mold look like that you saw during

that time period?

A It was more consistent. We had more of it coming

out at a time.

Q Were there bigger chunks?

A. Yes, I would say there was probably some bigger

chunks in there.

Do you recall how big the chunks of mold were?

No, I could not recall how big they were.

And was this also in about April of that year?

Yeah.

What color was the mold that you saw?

> ©. 7? © 2? &

Light and white. Grays.

289

Q. When you say there was more of it or it was more

consistent, did you see it every time you fed from the silo

A. [p. 313] Well, that time period is about the time that

we shut it down and we hauled the rest of it out in the field

that one year. We did not feed it to the cows no more that

spring.

Q. What, as best you recall, what time of year was it

that you shut it down?

A. Well, in April.

Q. What did you do with the feed that was still in the

A It was hauled out to the field.

Q How much feed did you haul out to the field?

A We hauled for two days. But how many loads, I'd

Say maybe a dozen manure spreader loads.

Q. Were you involved in actually hauling the feed out

to the fields?

A. Oh, yes.

Q Was there someone else that was working with you?

A Yes. There was a hired man there.

Q

Do you remember who it was?

290

Donald Pauly.

Did anyone else help you haul it out to the field?

I believe not.

Qn > O >

When you were putting the spoiled feed into the

manure spreader how did you actually get it from the silo

out to the field?

[p. 314] MR. BIRD: You mean, with a tractor?

BY MR. SHEPARD:

Q. Physically. Yeah. I’m just wondering, would you

run the feed out the unloader on the conveyors and just

right into the manure spreader or how did you actually do

that?

A. Yes. That's how we did it.

Q. You would just back the manure spreader up to the

A. Well, we had a conveyor going all the way across

the barn that would take the feed to the other side, so we

just put a board there and backed the spreader down

through the center of the barn and filled it up that way. It

would fall off. Sor of plow itself off.

Q. And how much does the manure spreader hold? Do

you have any idea what the capacity is?

MR. BIRD: Don't guess.

291

THE WITNESS: I could not say.

BY MR. SHEPARD:

Q. But your recollection is it was twelve or more

spreader loads?

A. Yes.

Q What did you feed to your dairy cows during that

time period after you shut down the Harvestore?

Q. [319] What did you do after you saw the spoilage in

the Harvestore in that particular year?

A. MVBA was called out and they checked the unit out

and replaced, I believe, a breather bag, one for certain, and

checked out the pressure on the silo, see if it was airtight.

Q. Do you remember who you talked to at MVBA

about that problem?

A. I could not say for certain, no.

Q. Do you remember if you talked to Mr. Deutsch

about the feed?

A. Well, I’m sure Mr. Deutsch, | did talk to him

somewhere in that period, yes

Q. What did you say to Mr. Deutsch when you spoke

to him?

292

A. I told him about the spoiled feed. We looked at it

and he said that they would come out, check the silo, check

the breather bags and that they could fix whatever it was

that caused it.

Q. Did he actually come out and look at the feed?

A. Yes.

Q. What did he say when he saw the feed?

A Well, he figured somehow some air must have

gotten into the silo.

Q. Did he tell you or say anything to you about how [p.

320] air had gotten in?

A His question, or conversation was that he thought it

was a breather bag, but it had not been checked out yet at

that point.

Q Do you remember who from MVBA actually did the

testing or the investigation?

A. No, I could not tell you who it was.

Q. At that point, in any event, they replaced at least one

breather bag.

A. My vague memory would say at least one was

replaced.

Q. What did they discover in the old breather bag?

293

A. I have no idea what they found. It was, I believe it

had a hole in it or something was wrong. I don’t know.

Q._ Did you ask the person or people who did the

repairs what they had found in the old bag?

A No.

Q. Did you look at the old bag?

A I don't believe so.

Q Did they say anything to you after they replaced the

bag, that you remember?

XN They pressure tested the silo and everything was

Were you there when they did the pressure test?

[p. 321] Yes

Q

A

Q What were the results of the pressure test?

A Everything was fine It was sealed again.

Q

Did you talk to the people from MVBA while they

were doing the pressure testing?

A 1 was in and around the barn. I imagine | talked to

them, but I have no idea what was the conversation. They

were just doing their work, and that's what was going on.

294

Q. Did anyone from MVBA, whether it was Mr.

Deutsch or anyone else, make any comments to you about

the way you were using or managing the silo?

A No.

MR. BIRD: At that time?

BY MR. SHEPARD

Q At that time”

A No

Q At any point in time up to this particular occasion

that you're talking about, had anyone from MVBA made

any comments to you about your management or use of the

silo?

A In what time period are you talking?

Q Up until the time that you had this breather bag

replaced

A And you're going back from new?

Q {p. 322] Yeah.

A Well, Mr. Deutsch did come down into the

feedroom a few times, and Ben Johannes] remember

coming down there, and they looked at the feed. They'd

pick it up, and there was some comments about maybe a

little bit on the dry side or a little bit on the wet side,

chopped too fine or chopped too long. Those conversations

were brought up

295

Q. Weel let's go back and find out when you had those

oonversations. First of all, how many times do you recall

having that kind of a discussion with Mr. Deutsch?

MR. BIRD: You mean over the whole period?

MR. SHEPARD: From 1975 up until the time the

breather bag was replaced.

MR. BIRD: Well, I guess I'm going to object to

that because I don't - - he’s saying he can’t recall precisely

when the breather bag was replaced.

MR. SHEPARD Well, Charlie, he's the one that

times it happened.

MR. BIRD: Well, I'm making an objection on the

grounds that | think it's an impossible [p. 323] thing for him

to answer using those constraints If you think you can

answer it, go ahead.

THE WITNESS: How many times? I'd say maybe

BY MR. SHEPARD

Q Two or three a times before you had this breather

bag replaced”

MR. BIRD: Objection He just answered that

THE WITNESS: _Yeah.

296

BY MR. SHEPARD:

Q. And to the best of your recollection, when did you

have that first conversation with Mr. Deutsch?

A. I could not tell you when, what year it was or what

date.

Q. But he told you - - tell me as best you recall what he

said to you during that first meeting with him where he

commented on your management.

A. When he came to visit the farm we usually walked

down into the feedroom. We'd run some haylage out. He'd

pick it up and look at it. And a lot of times it looked good

and sometimes -- I shouldn't say good, but sometimes it

looked fine and then he'd find some, oh, maybe it should be

chopped a little finer or chopped a little wetter or chopped

[p. 324] a little drier.

Q. Okay. I'm really sorry to do this, but we're talking

about -- I realize this is a long time ago, and we went

through the first couple of years that you used the

Harvestore. And I thought I understood you to say that

after each of those first two years that you used the silo

when you saw the little bit of mold at the end of the

feedstack that you talked to Mr Deutsch about those

observations of mold at that time.

A. Yes.

Q. And I thought you told me that he, Mr. Deutsch,

told you that it was just the end of the feedstack and that it

was because there was some air that was trapped in the top

when you filled it. Is that what you remember?

297

A Yes. Yes.

Q. And I thought you told me that in those first two

years he didn’t make any comments to you about your

management or use of the silo. Is that accurate?

Well, any comments or use of the silo?

A

Q. About the way you were using the silo.

A I'm confused. I don’t understand what you mean.

Q

d Okay. After the first two years, you'd fed out of the

silo two full years.

A. [p. 325] Yeah.

Q. And at the end of each year you had seen a little bit

of mold and you talked to Mr. Deutsch about the mold and

he explained to you that the mold was caused by air that had

been in the silo from when you filled it.

A. Uh-huh.

Q Correct?

A Yes.

Q. I thought you had told me earlier that he didn't make

any Comments to you on either of those occasions about the

way you were using the silo. He didn't comment to you that

you weren't using it properly.

MR. BIRD: Are you talking about at that time or at

any other time?

298

MR. SHEPARD: I'm talking about the first two

years.

MR. BIRD: Well, I'm going to object, because |

think you're going from a specific incident to a whole time,

from the way you're explaining the question, and I think it's

unfair. But go ahead and answer.

THE WITNESS: Up to them first two years I had

the understanding that I was doing everything [p. 326] very

much correct.

BY MR. SHEPARD:

Q. All right. Then the third year, beginning when you

filled the silo in May of 1977, you told me that you saw

mold again at the end of the feedout thefollowing spring.

Uh-huh

Yes?

Yes.

A

Q

A

Q In the spring of 1978.

A Yes

Q

And that was the year you had to haul approximately

two manure spreaders to the field.

Yes.

A

Q Did you talk to Mr. Deutsch about the moldy feed

you saw that year?

A. Yes.

Q. What, if anything, did he tell you

about the moldy feed that year?

A That this was the end of the silo and that this was

the top layer.

Q. Did Mr. Deutsch make any comments to you at that

time about the way you were using or operating the

Harvestore silo?

A. No.

([p. 327] MR. BIRD: All right. Now, wait. Again

I'm confused, Blake. Are you talking about at this specific

time at the end of the year and you're not talking about any

visits this guy might have made throughout the year? That's

where I'm confused

MR. SHEPARD: I'm talking about when he saw the

mold in the spring of 1978.

MR. BIRD: And that's what your other questions

went to.

MR. SHEPARD: Correct

MR. BIRD: All right

BY MR. SHEPARD.

Q He didn't make any comments to you.

A. No.

300

Q. Now, during the other months during those first

three years when you were getting what you thought was

the normal feed, did Mr. Deutsch at any time during those

first three years come out to your farm and make any

comments to you about the way you were using or

operating the Harvestore silo?

A. Well, he never said I was doing anything bad. |

mean, as far as comments go it was -- I'd have to say no.

Q. Okay. Now, in this time frame from 1979, 1980,

1981, you've told me about one year when you had a [p.

328] much bigger problem with spoilage.

A. Yes.

Q. In April.

A. Yes.

Q. And you had to haul the spoiled feed out in the

manure spreader and take it out to the fields, and you did

that for two days.

A. Yes.

Q. And when you talked to Mr. Deutsch about that

problem did he make any comments to you at that time

about the way you had been using or operating the

Harvestore silo?

A. No.

Q. At any time between the spring of 1978 and this

particular year when you had the bad feed in April, had Mr.

301

Deutsch made any comments to you about the way you had

been using or operating the Harvestore silo?

A. __ Are we talking about the April that we hauled all

this out?

Q. Correct.

A. I can't remember if he did. He stopped by many

times and we had little conversations, but I can't remember

if that was the year that he said anything or not.

7-**

Q. {p. 330] Okay. I'm trying to find out, when-I say did

he make any comments to you about the way you were

using or operating the silo, what I want to know is did he

come out and suggest to you that you either were doing

something you shouldn't be doing or that you ought to be

doing something different?

MR. BIRD: Are you saying -- well, 1 think you

guys are two ships passing in the night here. He wants to

know what these too wet, too dry, too fine times were, and

he's calling it operation and management of the silo.

Now, I think he's not including that in the end of the

question. Now, if I'm wrong on this, you know -- but let's

get beyond this point here. Do you see what I'm saying?

He wants to know what those conversations were where it

was too wet, too dry, too early or too late, whatever.

THE WITNESS: Yeah. And I can't pinpoint the

year or the date or the month down that he said that.

302

BY MR. SHEPARD:

Q. Was it at any point during the first three years?

A. I don't believe so.

Q. Okay. So it was sometime after June of 1978, or

thereabouts.

[p. 332] feed being too long or too short or too wet or too

dry, what exactly did he tell you?

A. He didn't tell me anything. He looked at it and he

thought maybe this was - - he'd pick out a couple of pieces

and he thought this was maybe a little bit too long. All he

was doing was trying to tell me that maybe you should

check your chopper and make sure everything is good and

sharp. In other words, he was keeping me on my toes that |

kept on doing - - that's what my feelings was at that time.

Q. You understood that what he was telling you to do

was just keep doing what you were doing and keep paying

attention to your management?

A. Yes. I believe that's what - - yes. That was my

understanding

Q After he made that comment to you, did you follow

those suggestions that he gave you?

A. Well, | was more observant of it as far as keeping

the knives sharp and chopping it at a closer moisture than

303

what we wanted it to be. Make certain it didn't get too dry

or anything like that, yes.

Q. And was there another conversation with Mr.

Deutsch where he commented on the way you were putting

the feed up or managing the silo, other than this one

ees

[p. 334] THE WITNESS: No, I have no idea at all.

BY MR. SHEPARD:

Q. Well iet me try this. Was it in or around 1980?

MR. BIRD: Objection. Asked and answered.

THE WITNESS: I have no idea.

BY MR. SHEPARD.

Q. Was it around 1985?

MR. BIRD: Objection. Asked and answered.

THE WITNESS: | can't pinpoint any year. All |

know is that over the years he came down there and

occasionally, once in a while, he'd say, well, it should be a

little wetter or just a little bit finer

BY MR. SHEPARD:

Q. Do you recall, whenever these conversations took

place, do you recall specifically an occasion where he told

you it should be a little bit wetter?

304

A. Yes. There was some conversations that I should

put it up a little bit wetter or try to keep it a little wetter.

Q. Now, up until that time had you always been careful

to try to follow the moisture recommendations - -

A. Yes.

Q. [p. 335] - - as closely as you could?

A. Yes.

Q. And after he made the comment to you that the feed

should be put up perhaps a little bit wetter, did you pay

attention to make sure that you followed that

recommendation from then on?

A Yes. Itried Yes.

Q. And when he made these comments to you, were

you having problems with your feed at that time?

A. No.

Q. And did you understand that these conversations

were simply comments made by Mr. Deutsch to remind you

to follow the same management guidelines you had been

trying to follow all along?

A Yes.

Q And you did that from the time he made those

comments until you stopped using the silo.

A Yes

305

Q. After this incident where the breather bag was

replaced, when did you start filling the silo again?

A. At harvest time.

Q. The end, of May?

A. Usually whenever the first prebud stage we start

cutting hay. It varied every week - - or every year [p. 336]

it would vary by maybe a week.

Q. What did you notice about the quality of the feed the

following year after you had the breather bag replaced?

A. Everything returned to very normal.

Q. And over the course of that year did you make any

other observations about the feed that were different than

the feed you had during those first few years you used it?

A No. I'd say it was very consistent to what I was

used to seeing.

Q. At the end of that year following the time when you

had the breather bag replaced, how was the feed at the end

of the year?

A We had just a smali amount of spoilage that we

cleaned out of the silo again

Q. Do you recall how much spoilage you had that year?

A It's hard to say that year, but - - I'm not going to

guess, but maybe one spreader load.

306

Q. That was the spreader load you had to haul out and

dump in the field?

A. Yes.

Q. After you had that spoilage that year did you talk to

Mr. Deutsch about the feed that year?

A. I would imagine, yes. I can't recall what was said

A. [p. 338] I'm sure I have.

Q. And for the record, this appears to be a service

invoice from MVBA addressed to you, is that correct?

A. Yes.

Q. And the invoice shows apparently a replacement of a

breather bag in the 25 by 80 foot Harvestore, is that right?

I'm looking over here on the left where it says, "Changed

bag in 25 by 80"?

A Yes.

Q. And the date here is June 28, 1982.

A. Okay.

Q. Now, does this document relate to the incident we

were talking about a few moments ago, when you had the

breather bag replaced in the 25 by 80?

A. I would say yes, it is.

307

Q. Okay. And so it's clear, the event that we were

talking about where you had the breather bag replaced

occurred in 1982. Does that appear to be the case?

A. Yes.

Q And that incident where you had moldy feed in April

where you had to haul the twelve spreader loads of feed into

the field occurred in April of 1982. Would that be right?

[p. 348) let's say up till 1990. Do you recall any specific

observations about the feed from 1984 to 1990?

A. Generally speaking, I'd have to say that | did not

observe any change in the feed.

Q And by that do you mean that you didn't see any

mold or spoilage during those years”

A __ Weel, there was, occasionally in the spring we would

see just a little bit when we emptied out. And then maybe

during the winter or during the year we'd see a little bit, but

it was, it was, I thought, insignificant.

Q. So from 1984 to 1990 the feed - - I'm going to try to

just state what I understand and if I misstate it, you tell me

I'm just trying to summarize, so we don’t have to go

through this year after year after year.

1984 to 1990, would I be correct to say that the

feed generally appeared to be brownish and that you did not

observe mold until the spring, the very end, last week or

two, when you would have some mold and spoilage?

308

MR. BIRD: Objection. That's not what he testified.

He said he'd see a little bit throughout the year.

[p. 349) BY MR. SHEPARD:

Q If I've misstated that, you tell me how I'm wrong.

A Throughout the year we would occasionally see, it

would only be for a short time, we would see just little

chunks of moid, very little, for a short time. Then it was

good again for a long time and then in the spring when the

silo emptied out, we'd have maybe a load. We always swept

our silo out every spring, cleaned it out, and maybe there

was two loads some years. I don't know

MR. SCHMITT: Can I have that read back, please?

(Answer read.)

BY MR. SHEPARD

Q And what you've just described is what you recall

observing of the feed from this ume period of 1984 to 1990.

Am I correct about that?

A Yes

Q And that would be consistent with every year you

used the silo up until 1990, with the exception of the one

year where you had the problem in April where you had a

whole bunch of mold that you had to cart out into the field.

A Yes.

MR. SCHMITT: The drought year.

309

BY MR. SHEPARD:

e+.

[p. 361] Towards the end of April?

Yes.

What did the pieces or chunks of mold look like?

They looked like they - - very small, just a few little

hite chunks No more abnormal than we've seen other

$> 2 > ©

~ |

And how big were the chunks of mold that you saw?

MR. BIRD When”?

MR. SHEPARD In April

__ MR BIRD: Well, were is he looking That's the

point I'm trying to make

BY MR. SHEPARD

Q Tell us where you saw these chunks of mold.

A In the conveyor, after it was coming out of the

unloader

Q. And how big were the chunks of mold that you saw

on the conveyor?

A Well, they could range from a quarter to maybe a

half a dollar oa

310

Q And how did that, the appearance of the feed then

compare to what you had seen in the Harvestore the

previous Aprils that you had been feeding out of the

Harvestore?

A. Very comparable

Q. So in those previous years you had seen chunks of

[p. 362] mold varying in size from the size of a quarter to

the size of a half dollar?

A Are you talking about previous years now?

Q Correct

A I thought we were done with previous years.

Q Well, I thought so too, but you're telling me that in

April of 1991 you saw chunks of mold that were the size of,

anywhere from the size of a quarter to the size of a half

dollar

A There was a few of them in there that big, yes

Q And that was no different than what you had seen in

the previous, all the previous years that you'd been feeding

from the Harvestore.

MR. BIRD: Other than that one year, he's testified.

MR. SHEPARD: Other than the year when he had

12 loads of feed that he had to throw out.

311

THE WITNESS: Yes. It looked very much familiar

to what it had always looked. And the amount of mold

coming out looked very much the same.

BY MR. SHEPARD:

Q. And this was the same that you had observed

roughly in 1976.

A. ‘76, it was not emptied out.

Q. [p. 363] Well, it was the same as the feed you

observed when you got to the end of the feedstack in the

summer of 1976.

A. Yes.

Q And it was the same as the feed you saw at the end

of the year 1977.

MR. BIRD: I'm going to object. It's repetitious.

I'm objecting. He's already said it is. 1 mean, how many

times you got to ask him?

BY MR. SHEPARD.

Q Was it the same as it had been in all those years”

MR. BIRD: I'm objecting. It's repetitious you can

answer. This is the last time.

THE WITNESS: Yes, it was the same as what it had

looked all those years.

312

BY MR. SHEPARD:

Q. And that was the case right up until the time that

you stopped feeding on May Ist of 1991?

A Yes.

Q. Did you see anything else in the feed in April of

1991 that you had not seen in previous years.

A. After it came out of the unloader?

Q. Yes.

A And the question was what?

Q Did you see anything else in the feed in April of [p.

364] 1991 that you had not seen in all the previous years

you'd been using the Harvestore?

A No.

MR. BIRD: Coming out of the unloader.

BY MR. SHEPARD

Q. Coming out of the unloader.

A. No.

Q. Did you see anything about the feed other than out

of the unloader that you had not seen in previous years?

A Repeat that question again.

313

Q. Did you see something in the feed somewhere else in

1991 that you hadn't seen before?

A In the feed.

Q In the feed.

A. But not out of :he unloader. Other than the

unloader.

Yes.

Yes.

What was that?

I seen mold.

Where did you see that?

Inside that silo.

You want to take a break”

Yes, please

[p. 365] Let's go off the record.

@*>?.0.? ©: ?:8@ 2 8

(Off-the-record discussion. )

BY MR. SHEPARD:

Q Mr. Klehr, | apologize. And I know this is all

upsetting to you and | apologize. And if at any time you

314

want to take a break, be sure to let me know and we'll stop.

Okay?

A. That's fine. Okay.

Q You just mentioned a moment ago that at some

point in April of ‘91 you looked somewhere, either inside

the silo or inside the unloader, and saw some mold, is that

correct?

A. That's correct.

Q. Okay. Tell me where you looked, where you saw

that mold.

A. Well, that morning Bill Olson was scheduled to

come out. He was going to be out to the farm about 1 1

o'clock. And I told him I'd have the access door open so

that we could take pictures of the silage unloader mixing

feed

I had an ice chisel there on the farm that was

probably about four feet long. And I took the access door

off and I started chopping some silage away so I could see

inside that silo. And I chopped for probably an hour and a

half I made a[p. 366] hole that -- the arm was at the door

at the time and so I left it fall down and than it would come

out

And so | kept on getting it away from there. And it

took me about hour and a half to two hours, and finally I

got to where I could see inside that silo.

315

Q. So you had the access door open and you were

chipping through the feed with some sort of a chisel or

something?

A. Yes.

Q. And how far into the silo did you get chipping away

with the chisel?

A. Well, I probably got three and a half feet,

somewhere in there. Three and a half, maybe four feet in.

Q. And what did you see when you got in there?

A. Well, I had a flashlight at first. And it wasn’t, it did

not give me much light, so I went up to the house and got a

spotlight off the back of the house. And I grabbed my little

Pn light and plugged it in and screwed the spotlight in

there.

And I put that spotlight in there and it was the

ugliest thing you wanted to see

Q. I’m sorry?

A. [p. 367] It was the ugliest thing you ever want to

see

Q. Tell me as best you can what you saw when you

looked in there. :

A. There was mold hanging all over the silage.

316

Q. When you dug in through the access door, did you

get, did you dig all the way in till you got to the dome or the

cavity inside there?

A. Yes. Yes.

—Q. So you had worked your way through the feed on

the outside of the structure and had dug into the dome area.

A. Yes.

0. And what you saw was mold inside the dome?

A. Yes.

Q And can you explain to me what the mold looked

like?

A It had every color you could think of. It was gray,

different shades of gray. There was a spot up there about

the size of a good beach ball that was just solid gold. |

mean, it was gold.

Q. Solid gold?

A. Gold color, yes.

Q. And do you remember anything else about what you

saw that day?

A No. No. That was, that day I seen all the molds, [p.

368] and that was about all that | seen.

Q. Did Bill Olson come out that day?

317

Yes. he did come out.

And did you show him --

Yes, I did show him what I seen.

What did Mr. Olsen tell you?

He advised me to shut the thing down and not to

any more silage out of it.

QO Fr

eae? ?:@:?

And was that the last day that you fed from the silo?

A. No. We fed until May Ist, which was two weeks

more.

Q. So this date as sometime around the 15th of April?

A It was the 1 Sth of April.

Q | What was the reason you continued to feed from

April 15th to May Ist out of the silo?

A. We had no baled hay left no more at this point and I

didn’t know where to go to get hay. I had to have some

time to locate the hay.

Q Did you find some baled hay at some point?

A Well, we started going to the sales barn and buying

it up at the sales barn.

Q. __ When you say the sales barn, is that the name of the

location?

318

A. Well, it’s the commission, yeah. Belle Plaine

Q. __[p. 377] Yes.

A. I didn't see Mr. Deutsch for many years. And I was

grinding pig feed one day, this was probably in, very

possibly the fall of ‘90. I’m certain it was the fall of ‘90.

And I was grinding pig feed and he came up to visit me

then. I mean, he stopped at the farm and we talked by the

feed grinder. Then we walked back down towards the barn

and looked at the feed.

MR. SHERAN: Fall of “90?

THE WITNESS: Yes.

BY MR. SHEPARD:

Q And you hadn’t seen Mr. Deutsch for several years

before that?

A Mr. Deutsch hadn’t been out there for a long time. |

didn’t know he was still with them.

Q Did he just show up at the farm?

A Yes.

Q What did you talk about with him in the fall of

1990”

A Well, we talked about the protein cost. I know that

was brought up. I had asked Mr. Deutsch that -- he asked

319

me how the cows were and everything and how production

was doing. And then I asked him about, you know, I says,

“When we [p. 378] bought this thing you told me that we

weren't going to feed much protein.” And he says -- I

says, “Now,” I says, “we are feeding a lot of protein.”

And he says, “Yeah. But now your production is so

much higher compared to what it was many years ago that

you require more protein. All farmers are, because of the

genetics and everything, they’re getting more milk and so

they are challenging with more protein.”

Q. Let me back up a minute. You said Mr. Deutsch

asked you how your cows were doing and how your

production was?.

A. Yeah.

Q. What did you tell him?

A Well, I told him that I wasn’t satisfied with the

production that I was getting at the time. And that was all.

Q What did he say to you when you told him you

weren't satisfied with your production?

A. He didn’t say anything I would say he didn’t say

nothing.

Q. What was it about your production at that time that

you weren't satisfied with”

A Well, I thought it should have been higher than what

it was.

320

Q. _[p. 379] Do you recall what it was at that time?

A. No, I don’t.

Q. _—_ Had you complained or expressed your

dissatisfaction with your production to anyone other than

Mr. Deutsch before that time?

MR. BIRD: I'll object on the grounds that it’s

overbroad.

THE WITNESS: No. I'd say no.

BY MR. SHEPARD:

Q Was that discussion in the fall of 1990 the first time

you had complained to anyone about your milk production?

A. Well, I really wasn’t complaining to Mr. Deutsch. |

just told him that I thought my cows should be producing

more milk. Yeah, I think that was the first time I mentioned

that my production should be higher.

Q At that time do you remember how much protein

you were feeding to your dairy animals?

A I could not say nght offhand.

Q. If we were to go back and look at your records and

see how much you were feeding then, do you recall whether

you were feeding more protein in the fall of 1990 than you

had been feeding to your dairy cows in previous years?

[p. 380] MR. BIRD: I object on the grounds that it’s

vague. It’s overbroad. You can answer.

321

THE WITNESS: Yeah. I could not say for sure

BY MR. SHEPARD:

Q. Did you and Mr Deutsch talk about anything else

with respect to the amount of protein you were feeding to

your animals, other than what you've told me?

A. Repeat the question.

Q. _ When you were talking with Mr Deutsch about the

protein did you talk about anything else other than what

you ‘ve just told me?

A. I do not believe we did.

Q. Did you have any more discussions with Mr

Deutsch after the fall of 1990?

A Yes.

Q When was that”

A In the summer of ‘9!

Q

And what was the occasion that you spoke to Mr

Deutsch in the summer of 1991?

A. Mr. Deutsch stopped off at the farm It was on June

22nd, 1991.

Q And what was the reason for Mr. Deutsch’s visit?

A I believe just a routine visit

322

Q _[p. 381] What did you and Mr. Deutsch talk about

that day?

A I mentioned it to him that we had filed a lawsuit

against Harvestore.

Q. _ Did he say anything to you?

A We talked for about 15 minutes, yes.

Q. _ What did he say to you after you told him that you

filed the lawsuit?

A He told me that I was a good farmer, that my

management was good, and that my problem was I wasn’t

filing it fast enough He told me about this farmer down the

road that, that has a lot of hired men and some full-grown

sons, altogether about seven guys, and they have big

equipment and they fill it very fast. And he told me that that

man has always got good feed.

Q Did you know the person down the road that he was

talking about?

A Yes, I did

Q Who was that?

A John O’ Laughlin

Q Was this the first occasion that Mr. Deutsch

indicated to you that you weren’t doing something nght

with respect to the way you were rurning the Harvestore?

A Besides the few times that he told me that I should

323

Q. [p. 384] And do you know anywhere I could look to

find out what your milk production was in 19174, 1975,

before you started using the Harvestore?

A It should be on the DHIA papers.

Q. Do you know whether the DHIA records still exist

for that period of time?

A. I don’t know how far they went back. I do not have

any records that go back that far No. Wait a minute |

should say I don’t have any records that go back that far

Q What happened to your milk production during that

first year that you began feeding from the Harvestore silo?

A The first year?

Q Right. In 1975 and into 1976?

A I believe my production went up.

Q Do you recall how much it went up?

A

Q

No, | cannot recall

you were using the Harvestore, compare to what you had

324

Q Did you get the additional three to five pounds [p.

385] of milk per day that Mr. Deutsch had told you about?

A. _ I believe -- I never sat down to figure it out, but !

did get an increase in production.

Q. __ At the end of that first year of using the Harvestore

silo, did you feel as though you had gotten what you

expected to get in the way of milk production?

MR. BIRD: I'm objecting. Could you read that

back?

(Question read_)

MR. BIRD Didn't he just answer that

question? I thought he just answered that question.

MR. SHEPARD: Well, he’s told me he got some

kind of an increase in milk production, and he hasn’t told

me how much. And he was made, Mr. Deutsch made a

pretty specific statement about what kind of milk

production. I'm just trying to find out if -- let me restate

the question

BY MR. SHEPARD

Q After using the Harvestore for that first year, did

you feel you had gotten an increase in milk production that

Mr Deutsch had led you to expect you would get when you

bought the silo”

MR. BIRD: And | objected because I [p. 386)

thought he already answered that, Counsel.

325

THE WITNESS: Yes, I believe I got the increase

that I was expected to. a

BY MR. SHEPARD:

Q. Do you know what happened to your milk

production in 1977? see

A. I have no idea.

Q. Do you know whether or not your milk production

went up or down or stayed the same after that first year of

using the Harvestore?

A . I’m sure it went up and down. Up and down. |

don’t know the -- I don’t know the trend it was going with

Q At the time back in 1977, you were receiving DHIA

reports every month

A. Yes.

Q. And those DHIA reports gave you a su

mmary of

your rolling herd average, didn’t they?

A Yes.

Q Were you looking at those records when

them? ciate

A To an extent, yes

Q And were you looking to see whether or not your

milk production was going up or down? :

326

A. Repeat that question?

Q. [p. 387] Sure. As a dairy farmer, were you

interested to know whether or not your milk production

was going up or down?

A. Oh, yes.

Q. Well, did you have any idea at all, say in 1977,

whether your milk production went up or down compared

to the previous year?

A. Well, we were in the process of enlarging our herd

that year, ‘77, and so I do not know what the production

did up or down. If it did stay the same, it would be

expected because of the more numbers, hanging onto maybe

some cows that we may should not have hung onto to fill

the barn up once it was built.

Q. Well, at the end of 1977 how did your milk

production compare to what you had been led to expect

when you bought the Harvestore silo”

A I guess I believe I was getting my production that |

should have got

Q. And in 1978 do you know whether your production

went up or down?

A I have no idea.

Q At the end of 1978 how did your production

compare to what you had been led to expect when you

bought the silo?

327

[p. 388] MR. BIRD: I’m going to object. There is

no foundation. He says he doesn’t know what his

production was. You can answer, if you feel you can.

THE WITNESS: I have no idea. I could not tell

BY MR. SHEPARD.

MR. BIRD: Objection as repetitious. He just

answered that same question.

THE WITNESS. I cannot remember.

BY MR. SHEPARD

Q. If I asked you that same question with respect to

1979, would your answer be the same?

A. Yes.

_ Would your answer be the same with respect to

A And the question is what?

Q. At the end of that year, the end of 1980, did

yarmelke production match the expectation you had based

on what Mr. Deutsch told you you could expect when you

purchased the Harvestore silo” ,

328

[p. 389] I can’t remember.

And would that be your response for ‘81 as well?

Yes.

And would that be your response for 1982?

> Ob > BD

Yes.

Q. Did there ever come a time when you felt that your

milk production was not achieving the level you had been

led to expect when you bought the Harvestore silo?

MR. BIRD: I’m going to object to that. It assumes

certain facts not in evidence.

BY MR. SHEPARD:

Q You can go ahead and answer.

MR. BIRD: I think it’s an unfair question.

THE WITNESS. Repeat the question?

BY MR. SHEPARD

Q Sure. Did there ever come a time when your milk

production was not what you expected it to be based on

what Mr. Deutsch had told you when you bought the

Harvestore?

A No

329

Q. One of the other things that you mentioned was that

Mr. Deutsch had indicated to you that you could expect

more money and more profits from using the

[p. 397] understood any of these questions.

BY MR. SHEPARD:

Q. Do you understand my question?

A. Repeat it one more time.

Q. Okay. All I’m trying to find out here is, did you

have any herd health problems on the farm at any point

since 1975 other than, I mean, the typical, kind of run-of-

the-mill health problems that every farm has?

MR. BIRD: Are you asking for his--

THE WITNESS: Let me answer that then. Okay.

You have to understand that there is more than haylage in

my ration. There is more than high-moisture shell corn.

There is baled hay, there is corn silage.

So if I-did have a problem, I would not for no reason

think that it come from the Harvestore, because there is

many other things. There is weather, there’s crop

condition. There’s other things that, if there was a problem,

there was no reason for me to think that it was the silo.

BY MR. SHEPARD:

330

Q. There were a number of things other than the

Harvestore silo that could contribute to a health

***

[p. 399] thing as a period or a year where you don't have

anything. Okay. Were there any periods where -- and |

understand what you've just said, that you're always going

to have some mastitis in the herd. Is that correct?

A. Yes.

Q. Were there any years when you had what you

considered to be a disproportionate number of cases of

mastitis in your herd?

A I'd have to say no.

Q Even now, looking back, are there any periods of

time when you believe you had a disproportionate number

of cases or mastitis in your herd?

A No.

Q. Are there any herd health problems that you had

from 1975 till 1991 that you now believe were caused by —

the Harvestore silo?

A Repeat that question

Q. Sure. Are there any herd health problems that you

had from 1975 to 1991 that you now believe were caused

by the Harvestore silo?

A What I know now?

331

Q Yes.

A. Yes.

__ [p. 401] MR. SHERAN: Blake, how does he define

a high somatic cell count? At what level?

BY MR. SHEPARD:

Q. When you refer to a high somatic cell count, what

do you mean by a high count?

A Six hundred.

Q. About 600,000?

A. Yes.

Q Were there times before 1990 when you had somatic

cell counts above 600,000?

A. I’m sure there was.

Q. Do you attribute those periods of high somatic cell

counts to the Harvestore also?

A. What I know now? Yes

Q. When you had -- well, let me ask it a different way.

Has anyone told you that the period of high somatic cell

count were caused by the Harvestore silo?

A. Yes.

332

Q. Who has told you that?

A. Dr. Bill Olson.

Q. And did he tell you that in 1991 when he came to

the farm? .

A. Yes.

Q. Has anyone else other than Dr. Olson told you

[p.402] that?

A. No.

Q. Before 1991 when you had periods of high somatic

cell counts, did you discuss those with any of your treating

veterinarians?

A Before 1991?

Q. Yeah.

A. Well, let’s forward that to, before March 11th I had

talked to somebody, in 1991, to the veterinarians.

by apie

Q. Who did you speak to before March 11 of 19917 wo i

A. Dan and Steve Kreuser z ™y we "

Q When did you speak to them? _ 4"

A. When?

Q. Yes.

333

A. March 6th, 1991.

Q. How is it that you remember the date March 6th?

A. Because it was on a Wednesday I went in there

because I had high somatic cell problems, and the creamery

told me I was supposed to do something about it. And I

took my DHIA papers there, and we looked them over and

they did some, we talked and discussed it for a while. And

then they told me that the following Monday, March 1 | th,

they were going to come out to the farm and pull blood

A. [p. 412] On and off through the years. We’ve had

the diarrhea or --

MR. BIRD: What was that you said? The what?

Diarrhea?

THE WITNESS: Diarrhea.

MR. BIRD: I thought he was asking you about

respiratory problems. You on the wrong end?

THE WITNESS: Am I on the wrong end? What

you Call it in the back end? I don’t know.

MR. BIRD: Well, all right

BY MR. SHEPARD.

Q When you said respiratory problems, are you talking

about problems with diarrhea and that sort of thing?

334

A. Yeah. We occasionally had some small cases of it,

yes.

Q. Do you mean digestive problems or--

A. We had some digestive problems, too. Yes.

Q. Well, let me ask you this just so I make sure I’ve

covered respiratory problems. Were there any problems

with, you know, the lungs or the breathing of the animals?

A. No, not that was noticeable.

Q. Tell me what problems you had with diarrhea and

the digestive problems.

A [p. 413] Well, occasionally, once in a while a cow

would come in and she would be very loose and the manure

seemed to be more on the darker side.

Q When did you first notice that?

A Now and then in the barn I seen some cows that

seemed to be a little worse than others.

Q Okay. When did you first notice that?

A I'd have to say go back a few years. I couldn’t say

for certain when.

Q Well, would it be 1980?

A Yeah. That’s possible, somewhere in there, yes

335

Q. _—_— Well, could it have been sooner than :

> that, earlier

A No, I think that probably would take care of it

Q. Was that , had :

nos emcee you had ever seen in your dairy

A You mean the diarrhea?

Q The diarrhea and the loose stools”

A _ Yes. We seen is occasionally. Sometimes they call it

the en cenmmaany. ta other words, is seems to go through

Sr ee

expenenced with your dairy herd before then”

A No, I'd say nothing that was worse

[p. 415] around at that time

Q Do you know whether or not there were any

records--

A No, I would not. No, | wouldn't know

Q | The next thing that I have on my list here that you

mentioned in the way of herd health problems was low feed

intake. Tell me when you first noticed that

336

A Over the years we'd have cows that went off feed.

Q When did you first begin to have problems with

that?

A It's been so long I don't remember when it was, but I

guess I'd have to say ten years ago.

Q. When you say cows off feed, what do you mean by

that?

Xv Well, they refuse to eat the feed. It seems like they'd

do it for a day and then everything was back to normal

again. Just seemed like they kind of went off feed for a day

or so and then they --

Q Did you have a total mix ration mixer?

We do now.

When did you get that?

> © >

In the spring of 1990

Q When these cows went off feed was there anything

in particular that they would refuse to eat or would [p 416)

they just refuse to eat altogether”

A I guess they just pretty much refused to eat Baled

hay. They always liked baled hay, but they refused

everything else it seemed.

Q How frequently did you have problems with cows

going off feed beginning with, let's say, ten years ago when

you first noticed the problem”

337

A How frequently?

Q Yes.

A Maybe one or two cases a week.

Q

. Well, before that time had you ever had any cases of

cows going off feed like that?

A. Yes, I believe over the -- yes, I'd say we had some,

some cows that went off feed.

Q Well, did the frequency of these cows going off feed

increase beginning ten years ago compared to what your

experience had been before that?

A Yes.

Q Did you consult with a veterinarian or anyone else

about the situation?

A Oh, we did talk to the feed man about it, mentioned

it to him.

Q Who was that?

Mark Koepp

How do you spell his name”

[p. 417] K-o-e-p-p

Who does Mr. Koepp work for?

> -+0@.?: Ore

Praine Farm Supply in Belle Plaine.

338

How long was Mr. Koepp your feed man?

I'd say maybe half a dozen years, six years.

And when did he stop?

No. He still is.

Oh, he stil is.

Yes.

So you've been using him for about the last six

"9

Yes, I'd say something very close.

7 ae? kT SC

When did you first talk to Mr. Koepp about the

problem with the cows going off feed?

A Well, he used to stop by about once a month. And

he did my rations and he would, he'd talk about the amount

of feed the cows were eating. And if he thought we were

feeding too much of one thing or too much of another, we

seemed to make adjustments in the rations then.

Q When did you first mention to him this problem with

cows going off feed”

A Well, when I first started 1 guess | started when he

first came onto the job. This was always a thing, to achieve

production you had to get a cow [p. 418] to eat a lot of

feed, so you do feed a cow all she wants to eat.

339

Q. When you discussed this with Mr. Koepp what did

he tell you?

A. Well, usually the remedy seemed to be you backed

off the feed for a day or two and then away they go again

Q. And is that basically how you treated the problem?

A. Yes. Yes.

Q. And did that seem to work?

A. Unless the cow had a DA problem, that would solve

the problem.

Q. Before discussing this with Mr Koepp did you talk

to anyone else about this problem with cows going off feed”

A There was previous feed salesmen, but I can’t

remember their names But they always came in the barn

whenever they come for a visit And that was their job, to

balance the ration, and try and balance it so that the cows

would eat it.

Q- Well, when you first started noticing that you were

having more frequent problems with cows going off feed

around ten years ago did you talk to your feed man at that

tume about it?

A Yeah. I guess I'm sure | did

Q [p 419] Do you remember who that person was?

A We've changed feed men Years ago we used to,

every couple years it seemed you'd find a different feed man

340

come down the road. But to pinpoint which one, I couldn't

even tell you nght now.

Q. Did any of the feed men that you talked to about this

problem ever indicate that the problem was related to

problems with the Harvestore feed?

A. No.

Q. Did any of them ever indicate that it was related to

the quality of the feed that you were feeding to your

amumals?

A. No.

Q. Did they give you any indication of why the cows

were going off feed”

A No, they didn't. They would balance the ration,

maybe add more buffers and things, make a cow eat more of

the feed

Q What was your understanding as to why the cows

were refusing to eat?

A I guess I just, just for the simple reason that we

thought, well, must have fed her too much. We kind of

took everything away and then they just took off again.

Q Has anyone told you since that time that these (p.

420] problems are related to the Harvestore feed?

A No.

34)

MR. VICK: Excuse me. I believe you used calves

again when referring to cows. You just need to watch that.

BY MR. SHEPARD:

Q _— Do you remember ever talking to any of your

a nearer «oc te

A. The only time that we would talk to a veterinarian

about off-feed would be when they had a twisted stomach

and you had a sick cow that needed veterinarian care And

then we talked about, well, today she’s not eating. She

hasn’t eaten for two days.

Q. Let's talk about the twisted stomachs for a minute,

as long as we're on the subject. When you talk about DAs

you're talking about the same thing as twisted stomachs,

correct?

A. Yes

Q. When did you first start having problems with

twisted stomachs?

A. Oh, that's many years ago. You'd have to go back

to probably when we started with the haylage, or to

chopping of fine feeds, the roughages.

And would that have begun around 1975?

[p. 421] I imagine around that area, yes.

Have you had those problems before then?

> O PF A

No.

342

Q. Who did you talk to if anyone about that problem

when you first started having problems?

A. Well, that was basically with our veterinarian. That

was his concern, I guess. That would be the man we talked

Was that Dr. Mittelsted?

Q

A. Dr. Mittelsted at first, yes.

Q What did Dr Mittelsted tell you about the problem”

A

He didn't -- at that time I don't believe he told me

Q. Was he the one who told you about the relationship

between twisted stomachs and the fine chopped feed? Or

was that someone else?

A. I believe it had to be the next veterinarian in line

probably, because I don't believe Mr. Mittelsted told us that.

Q. Who was it that told you about the relationship

between the chopped, fine chopped feed and twisted

stomach?

A. Richard Klimmek.

Q. [p. 422] Do you remember when you talked to him

about that issue?

A. Well, he's been my veterinarian probably -- I guess

somewhere in the late ‘70s he started.

343

Q. __ Do you recall that he made this association between

fine chopped feed and the twisted stomachs sometime in the

late "70s?

A. Yes, I believe so.

Q. Have you talked to anyone else other than Dr.

Mittelsted and Dr. Klimmek about that problem?

A Well, over the years every time a veterinarian came

to do an operation or something I'm sure we talked about it

and what caused it. And I think a lot of them -- every

farmer’s got different rations, different feeds, so I don't

know what they really were tying it to.

Q. Have any of your veterinarians or has anyone else

told you that the twisted stomachs are caused by Harvestore

feed as opposed to any other form of finely chopped feed?

A No.

Q. Has Dr. Olson ever indicated that to you?

A. I would say he has not.

Q. And I think we talked about this yesterday, but am I

nght that you treated the problem of twisted

7-**

[p. 427) with uterus infections. Been a long time.

Q. Did you have some problems with uterus infections

prior to 1975?

A. Yes, we had some problems.

Q. Were the problems with uterus infections better or

worse or the same after 1975?

A. Well, for the amount of animals we had, I'd say we

had more uterus infections than we had before.

Q. So even considering the number of cows you had,

you had a higher percentage of --

A. Yes.

Q. -- incidents of uterine infection?

A. Yes.

Q. When did you first begin to have an increase in the

number of uterine infections?

A. You'd have to go back many years. I guess I'd say --

it's hard to pinpoint the year I'd say probably in the early

‘80s, somewhere there.

Q. Did you talk to anyone about those problems when

they arose?

A. I believe | talked to the feed salesman about it,

several times, because we always felt that they're lacking

some type of a vitamin or something. That's why they are

having these problems

Q. Who do you remember talking to?

345

A. [p. 428] Well, just about any feed salesman that we

had out there. That's usually one question they will ask you

before they balance the ration is if you're having these

problems, and then they kind of throw in a little bit more of

this or a little bit more of that.

Q. Is that something that you talked to your feed

salesman about in the early 1980s when you first began to

notice this increase?

A. Yes.

Q. Do you remember who it was at that time that you

talked to?

A. Right offhand, I couldn't tell you who it was.

z : What did you do to treat those problems that you

A. The veterinarian treated some of them, and then they

used to leave me off some medication that 1 would treat

them myself.

Q. What did the vets do to treat them?

A. We call it infuse. They infused some medication.

a : Do you know what the medication is called that they

A. I believe they used Nolvasin and Furacin.

Q. Is that the same medication that they left you?

346

A. Yes.

Q. [p. 429] Did you understand there to be any sort of

a relation between uterus infections and milk production?

A. When a cow has a uterus infection she's usually not

feeling very good, and when she’s not feeling very good

she's not going to milk. So I would have to say there is a

correlation, yes.

Q. Did any of your vets or feed salesmen ever indicate

to you that this higher rate of uterus infections was related

in any way to the feed that you were feeding your animals?

A. Not what I was feeding, but they felt I must be

lacking something is probably what is more likely, I guess.

Q. Did any of them ever blame the problem on the

Harvestore feed?

A. No.

Q. What vitamins did your feed salesmen add to the

ration, if any, to deal with that problem?

A. Always vitamins and minerals, but they always

increased the Selenium. They thought Selenium was a big

help in thai end. And vitamin A, D and E was the --

Q. Did those changes in selenium and vitamins help to

address that problem?

A. [p. 430] It does help, yes.

347

Q. Has anyone else ever indicated to you that those

— of uterus infections were related to the Harvestore

A. No.

Q. You also mentioned that you had some foot

problems. Can you tell me what the foot problems were

that you had?

A. The hooves seemed to grow, I don’t know, just fast

and weird, I guess it was. They seemed to have a lot of foot

trouble.

Q. When did you first begin to notice that?

We've noticed that for probably the 1980s.

Since around 1980?

Yes.

Why was that of concern to you?

Foot problems?

Yeah.

ror 8 ? @* >

A. Well, it tells you how many years that cow is going

to be around. If you got a cow that's got bad feet, she's not

Boing to milk good and she’s not going to be around very

ong.

348

Q. I'm just trying to understand what the relationship is

between foot problems and milk production. Is it because

the cow won't be comfortable or --

A. [p. 431] It's a big factor because the cows, if they

got to stand there, if they're sore on their feet, they don't eat

and they won't do a lot of things.

Q. And ultimately then that can have a bad effect on

milk production; would that be nght?

A. Yes.

Q Who, if anyone, did you talk to about that problem?

A I believe the feed salesman was involved in that too

a little bit as far as the Selenium and those things. They

tried to keep the levels as high as they possibly can in the

feed ration.

Q. So did your feed salesman at that time when you

first began to notice the problem prescribe additional

Selenium?

A Well, they prescribed maybe several things. There's

other minerals too that they all throw in there. I don't know

what they all throw in there.

Q Do you remember who the feed salesman was at the

time when you first brought it up?

A. No, I couldn't even begin to know.

349

Q. _ Did any of your feed salesmen ever indicate that the

nanny mubeinnt etnies

A. I believe -- well, I guess I can’t answer that, [p. 432

because I don't know. 2 rte rend lining

- no, I'd have to say it was never mentioned that the feed

had something to do with the feet problems.

Okay. Yeah. I mean, yeah, they put their minerals

and that in, but as far as my homegrown feeds having any

effect to it, I don't believe, they never mentioned anything

Q. _—_ Has anyone else ever mentioned that to you, that

there was a connectio:, between homegrown feeds

this foot problem” rs -

A No one has ever mentioned it, no

Q. _And, | gather from that, no one has ever mentioned

that this was related in any way to the Harvestore feed

A. No one has ever mentioned that

Q. Did vou do anything else to address the hoof

problem? Did you hire a hoof trimmer”

A Yes, we do have a hoof trimmer

Q Who is the hoof trimmer that you have?

A. Vic Larson.

Q. When did you first get in contact with Mr. Larson

about coming to your farm?

350

a

A. The records would indicate it, but I believe probably

about ten years he's been doing it now.

Q. [p. 434] Was that something that was arranged by

one of your attorneys?

A. 1 understand that, yes.

Q. What happened when Mr. Scott came out to the

farm?

A. Well, we were milking cows yet that morning, and

he just walked around the barn and looked at the feet and

we had a conversation. He looked at the feet, yeah, and we

had conversation, and he probably was there a half hour

Q What did you talk about when you had the

discussion with him?

A. Just basically the history of the cattle and the history

of the health of the cows.

Q. What did Mr. Scott te! you?

A Well, he looked at the feet and he thought that some

of this growth on the hooves come from spoiled feed.

Q Did you say he looked at the feet or the feed?

A. Feet. The hoof

Q. Did he tell you why he thought the problem with the

hooves was related to the feed”

351

A. _ Well, he had some reason, I don't understand what it

was, that he could tell that some of these cows had got,

somewhere in their life had gotten spoiled feed.

Q. _[p. 435] Are you still having a problem with hooves?

A. _ We still trim yet now, yes.

, ae Is hoof trimming an unusual thing to have on a

A. It's getting to be more common than |

Nobody used to do that. ESI

Q Did Mr. Scott say anything else about the health of

your animals, other than what he told you about the

connection between spoiled feed and the hooves?

A. He looked at the condition of the cows and, like |

say, | cannot say what he said because | do not remember

what was talked about.

MR. SCHMITT: You said calves.

THE WITNESS: Did | say that again? Cows.

Cows.

BY MR. SHEPARD:

Q _— Do you remember anything he said about the

condition of the cows?

A. _— He thought they looked pretty good.

Q. _ Did he indicate that to you?

352

No.

Did Mr. Scott make any sort of connection between

A

Q

Q. _[p. 436] Harvestore feed and the hoof problem?

A

Q

Yes, I believe he did.

A Yes.

‘ 10n between

Q. Did Mr. Scott make any sort of connection

some of these other health problems that we talked about

and the Harvestore feed, such as the diarrhea problem’

A We basically only talked about the hooves that day.

| mean, we maybe talked other subjects, but that would be

the only thing that I can remember because I was milking at

the time. And we talked about the feet and that was just

about everything.

Q When did you first notice any problem with bad

legs?

A. _ That was many years ago too. We used to get these

cows that would get these, it's on the hind leg. They get

this lump on the side of the leg or abig _bruise, looked

like bruises. I don't know where it come from.

353

Q. This would be bruises on the hind leg?

A. Well, yeah. The joint of their knee would swell up is

what it looked like, yes.

Q. When did you first -- can you give me an idea of [p.

437] how many years ago this was? Is this around 1980?

A Well, I remember when we were adding on to the

barn in '77, we had a couple cows in the barn then that had

just huge, looked like a great big softball sitting right on that

joint there. Because I know the first cow moved into the

new barn had one of those things on there.

Q. Had you ever seen anything like that before?

A. I'd have to say no, I guess. No.

Q Can vou give me an idea of how common this

problem was with the swelling or bruising on the hind legs?

A It seems it happened more on the younger heifers

when they were brought into the barn, that they would --

oh, I'd have to say maybe, we'd have maybe three, four, five

Cases a year, something like that.

Q Did it happen at all with the dairy cows?

A Oh, yes. Well, yeah, this is the dairy cows. It was a

heifer that was ready to calve and we brought him in at

calving time. Older cows didn't seem to do it so much as

the younger.

Q. And have you continued to have problems with

about three to five cases per year since around 1977?

354

A. Repeat that question?

Q. {p. 438] Yeah. I'm sorry. It's not a very good

question I think I'm getting tired. I thought you said that

you had about three to five cases a year that you noticed

A. When I say heifers, I'm talking about first calf heifers

is what I mean. Heifers when they come into the milking

barn, yeah.

Q. And has that been pretty much your experience in

terms of how many animals you've had with that kind of a

problem over the years?

A. Yes.

Q. Did you talk to anyone about that problem when

you first noticed it?

A Well, the veterinarians, we had done surgery on a

few of them over the years, and most of the time we just

leave it alone. It's been discussed, but nobody seems to

know where it comes from.

Q. Has anyone ever indicated to you that it's related to

feed?

A. No.

Q Or has anyone ever indicated to you that it's related

to the Harvestore?

A. No.

355

Q. Why do you think that those problems were caused

by the Harvestore?

A. [p. 439] Did I say they were caused by the

Harvestore?

Q. Well, I thought when you gave me this list of

problems these were things that you thought today had been

caused by the Harvestore feed. Maybe I misunderstood

that.

A. Well, if you look back now, over what I know now,

when I look back over the years and if this was going on all

these years, I believe definitely it had a lot to do with the

Harvestore feed.

Q. Okay. Why is that?

A. Because maybe there was a lot more spoilage going

on than what I thought was going on.

Q. Well, is there some relationship between spoilage of

feed and this leg condition that you're talking about?

A. I can't say yes or no, but all I know is I had more

foot problems and more leg problems and more health

problems than I had before.

Q. Did you discuss this iss

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Joint Appendix — Klehr v. AO Smith Corp. · 521 U.S. 179 | Frix