Pipeline company seeks new trial in dairy farm stray voltage lawsuit

Northern Natural Gas claims there are multiple reasons it should get a new trial over the stray voltage lawsuit brought by a West Union dairy farm, including “unreliable expert testimony and impermissible legal theories.”

A Fayette County jury ruled in January that the pipeline company created a nuisance that caused significant harm to Vagts Dairy Farm and awarded the family business $475 million in damages. An online hearing on the post-trial motion by NNG asking for a new trial is scheduled to begin at 8:15 a.m. Monday, March 6, before District 5 Judge David Nelmark.

At the heart of the suit was the cathodic protection system that accompanies the NNG pipeline across Vagts land. It sends electrical current into the ground to the pipeline to mitigate corrosion. Vagts said the electricity significantly damaged its dairy herd.

In response to the post-trial motion, Vagts attorney Andrew F. Van Der Maaten, of Decorah, argued that each of the pipeline company’s reasons for a new trial “fail substantively, procedurally or both.”

“The evidence in this record compels the conclusion that NNG’s operation of its CP anode bed right next to the Vagts dairy, coupled with its increasing needs for CP current as its pipe has aged, has resulted in excessive exposure of the Vagts’ herd to the negative polarity DC current used in the CP system,” Van Der Maaaten wrote. “The jury so found.”

The pipeline company’s 25-page post trial motion says this case is unique.

“(This) case appears to be perhaps the first in the country to proceed through trial on the theory that a pipeline CP system — a critical requirement of federal pipeline safety regulations — and the particular type of ‘rectified current’ it produces, negatively impacted the health and productivity of dairy cows,” wrote attorney Brant M. Leonard of Fredrikson & Byron, P.A., of Des Moines.

A top reason the motion cites for a new trial is that the testimony of the dairy farm’s stray voltage expert witness, Lawrence Neubauer, apparently played a large role in the jury’s decision to return an “exorbitant verdict of $4.75 million.”

“Mr. Neubauer’s theories were not peer-reviewed or based on reliable data,” the motion says. “His opinions lacked the most basic indicia or reliability and foundation.”

The motion also resurrects an argument made before and during the trial that Vagts Dairy Farm should have been required to go beyond a nuisance claim to proving negligence.

“As required by federal law, all owners of underground pipelines are required to operate cathodic protection systems on their lines — there is nothing inherently dangerous about operating a cathodic protections system separate and apart from operating it in a negligent manner,” Leonard wrote. “As a result, consistent with (case law), Plaintiffs should have been required to show that NNG was negligent in its operation of the cathodic protection system, and did not do so.”

Leonard also argues that the federal law sets the standard of care for cathodic protection systems, pre-empting the state nuisance law on which the suit relies.

Other arguments for a new trial included that the verdict form could have been confusing, the damages were excessive and appeared to be influenced by passion or prejudice.

The post-trial motion also includes an argument that NNG’s share of the damages be reduced because a previous co-defendant had reached a settlement with Vagts Dairy Farm.

The Allamakee-Clayton Electrical Cooperative was dismissed from the lawsuit after agreeing to a settlement that included a $500,000 payment, according to Van Der Maaten, who agreed that amound should be deducted from the $475 million NNG owes.


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