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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