Jury selection begins in stray voltage nuisance trial

This image of a cow standing on a water tank in a barn at the Vagts Dairy is included in its Dec. 2 trial brief, which says, “A commonly seen response to stray voltage is a cow standing in a water tank in an attempt to avoid the shock received by drinking water when putting their nose into the fountain.”

Something was seriously wrong in the herd at Vagts Dairy.

Milk production and health problems emerged in the late 2010’s in the 500-cow Holstein herd. Cows eventually were not responding to veterinarian treatments, and many had to be shot or were sold, the West Union dairy farm owners say.

After determining that stray voltage from a pipeline transversing the farm was the cause, Mark, Joan and Andrew Vagts and Vagts Dairy LLC filed suit in March 2021 in Fayette County District Court against Northern Natural Gas Company. Two parts of the original petition have been dismissed, but a nuisance claim is going to jury trial this week. Jury selection began today (Wednesday, Jan. 18) at the courthouse in West Union.

Northern Natural Gas says the stray voltage claims made by the Vagts are based on unsupported theories and its testing detected no safety problems caused by the cathodic protection system that sends electricity into the ground to mitigate corrosion of the pipeline. The system is required by federal law, it notes.

The claims “fail to demonstrate causation and ignore a plethora of farm management issues which are to blame for Plaintiffs’ alleged losses,” says a trial brief filed Dec. 2 on behalf of Northern Natural Gas.

The Vagts assert the amount of electricity used to protect the pipeline has increased as it aged and that the company’s understanding of what is safe for livestock is wrong.

“The NNG pipeline and CP system is putting ground currents into the Vagts Dairy at unacceptably high levels, causing damage and injury to the dairy,” says a trial brief filed Dec. 2 on behalf of the Vagts. “Much of the dispute in this case will be over the levels of current that affect a cow. NNG claims the present status of the cathodic protection system is ‘harmless’ to the Plaintiffs’ farm operation. NNG bases this contention on utility-industry inspired ‘studies’ which vastly misrepresent the sensitivity of cows to electric voltage/current, the electrical resistance of cows, etc.”

The Vagts investigated other possible causes for the herd’s problems to no avail, they say. Their search covered things they could control — such as nutrition, milking procedures and milking equipment, according to their trial brief. Eventually, they turned their attention to stray voltage and contacted Larry Neubauer, a master electrician and owner of Concept Electric, Inc. to investigate.

“At the Vagts Dairy after years of attempting to use traditional treatments and to adjust rations in an effort to resolve the physiological herd health problems, it was the Vagts’ veterinarians and nutritionists who believed that there was something else impacting the Vagts’ dairy herd,” the Vagts brief says. “Upon reaching that conclusion in 2020, and following consultation with another veterinarian, the Vagts’ nutritionist recommended they consult with Larry Neubauer to have the farm tested for stray voltage.”

Neubauer concluded that stray voltage from The pipeline’s cathodic protection system is the cause of the problems.

Neubauer says in court documents that he has been an expert witness in other stray voltage cases.

The Vagts brief says the financial impact on the dairy has lost more than $3 million in profits in the past five years, according to an analysis by Dr. Logan Kelly, a professor and past chairman of the Economics Department of the University of Wisconsin-River Falls.

The dairy has also seen 146 excessive cow deaths in that period, the analysis says.

The Vagts have shelved expansion plans because of the stray voltage issue, the brief also says.

Northern Natural Gas says the pipeline and cathodic protection system have been in place since approximately 1962. Upgrades to the system were made in June of 2013. The Vagts meanwhile have added various building and improvements to the property as they’ve attempted to grow their dairy operation since 1979.

Northern Natural Gas refers to loan documents for 2017 dairy improvements to cast doubt on the Vagts management. In an analysis done for Luana Savings Bank, a banker wrote “due to their trend and issues with feed quality I view management at below average…”

The company also cites advice given to the Vagts by a veterinarian in 2021 regarding farm management practices. In a report, the veterinarian noted “many serious issues” with the fresh cow milking system, according to the Northern National Gas trial brief.

The pipeline company also says Vagts Dairy’s milk production was strong despite the claims of stray voltage damage. The company also conducted tests in 2020 and 2022 at the property and found no problems, it says.

Each side has filed hundreds of exhibits for the trial.

The Vagts are asking that the problem be fixed so they will have a viable dairy. If that’s not possible, they will seek $1,955,305 in damages because of the reduced value of the dairy farm. They are also seeking damages for lost profits, economic loss and nuisance.