July 03, 2013 – Dan Loper d/b/a Rio Leche Dairy Co. v. JMAR, a New Mexico General Partnership, No. 31,357

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: July 3, 2013
NO. 31,357
DAN LOPER d/b/a RIO LECHE DAIRY CO.,
Plaintiff-Appellant,
v.
JMAR, a New Mexico General Partnership,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
David P. Reeb Jr., District Judge
Law Offices of Felicia C. Weingartner, P.C.
Felicia C. Weingartner
Albuquerque, NM
Dominalaw Group PC LLO
David A. Domina
Omaha, NE
for Appellant
Beall & Biehler
Gregory L. Biehler
Albuquerque, NM
for Appellee

OPINION
VIGIL, Judge.
{1} 	In this negligence case, the district court granted summary judgment to
Defendant (JMAR) in two separate orders. 	First, the district court ruled that the
doctrine of circuity of actions bars Plaintiff’s claims. 	Secondly, the district court
granted summary judgment when it ruled that the opinions of Plaintiff’s expert on
causation are not admissible as not being based on the facts of the case. We reverse
both orders.
I. 	BACKGROUND
{2} 	Plaintiff, Dan Loper, d/b/a Rio Leche Dairy, hired JMAR, a contractor, to
design, 	build, 	and 	deliver 	a 	new, 	turn-key 	fully 	operational 	dairy. 	JMAR
subcontracted the electrical work on the dairy to Kyle Snider, d/b/a Snider Electric
(Snider Electric). When the dairy was delivered, Plaintiff noticed problems with the
milk production of his dairy cattle. After considering and eliminating other causes of
low milk production, such as milking practices and nutritional needs of the cows,
Plaintiff hired an electrician, Precision Electric, to conduct an electrical survey of the
dairy. 	Precision Electric found electrical wiring defects in the dairy and corrected
them. The opinion of Plaintiff’s expert, LaVerne Stetson, is that the wiring defects
resulted in stray voltage at the dairy which adversely affected the production of milk
by cows in the herd.

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{3} 	Plaintiff sued both JMAR and Snider Electric for losses in milk production he
alleged occurred as a result of JMAR’s negligence in its construction and design of
the dairy, and Snider Electric’s failure to properly install the electrical system in the
dairy. Plaintiff also brought breach of contract claims against JMAR, alleging that
JMAR failed to supply contracted improvements at the dairy, such as additional
buildings, sheds, and equipment.
{4} 	At the outset of the litigation, JMAR sent Snider Electric a letter, demanding
indemnification for any liability imposed upon JMAR as a result of Snider Electric’s
negligent installation of the electrical system. Plaintiff and Snider Electric then settled
their claims before trial, and Snider Electric was dismissed from the lawsuit. 	In
relevant part, their agreement requires Plaintiff to indemnify Snider Electric as
follows:
[Plaintiff] agrees to defend, indemnify, and hold Snider [Electric]
and [its] insurer harmless from and against any claims, or judgment of
liability for indemnity or contribution which arises by, through, or under
JMAR . . . which arises in any way from the circumstances and claims
set forth in the lawsuit.
[Plaintiff] agrees to reduce any judgment which is obtained against
JMAR . . . to whatever extent is necessary to extinguish any claim which
JMAR . . . would otherwise have against Snider [Electric] for indemnity
or contribution. It is the intent of the parties that neither Snider [Electric
nor its] insurer have any liability to any person or entity as a result of the
lawsuit beyond the payment . . . described in . . . this agreement.

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{5} 	Based upon Plaintiff’s agreement to indemnify Snider Electric, JMAR filed a
motion for summary judgment, asserting that Plaintiff’s agreement to indemnify
Snider Electric created a circular chain of indemnification because of Snider’s
obligations to indemnify JMAR for its negligence and that Plaintiff’s claims were
therefore barred under the doctrine of circuity. The district court granted the motion,
concluding that the doctrine of circuity prevented Plaintiff from asserting claims
dealing with electrical matters against JMAR that arose “out of the conduct of Snider
Electric.”
{6} 	The district court also granted JMAR’s motion to exclude the testimony of Mr.
Stetson. 	This resulted in a second order of summary judgment in JMAR’s favor
because without Mr. Stetson’s testimony, Plaintiff was unable to prove that stray
voltage caused the problems with milk production.
{7} 	Trial proceeded on Plaintiff’s remaining contractual claims against JMAR.
Judgment on the jury verdict in JMAR’s favor was entered on the contractual claims,
and Plaintiff now appeals from the summary judgment orders.
II. 	ANALYSIS
{8} 	Plaintiff raises two issues on appeal: (A) that the district court erred in granting
summary judgment to JMAR on all claims related to the electrical issues at the Rio
Leche Dairy based on the doctrine of circuity; and (B) that the district court erred in

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granting summary judgment due to its erroneous exclusion of the opinion of Mr.
Stetson, Plaintiff’s expert.
{9} 	Before addressing these issues, we resolve two arguments raised by JMAR that
Plaintiff waived his right to argue them on appeal. 	JMAR argues that because
Plaintiff went to trial on the issues not excluded by the summary judgment orders, he
waived his argument regarding these claims because he did not raise the direct
negligence claims against JMAR at the trial on the breach of contract claims. The
summary judgment order with respect to the doctrine of circuity states: “The Court
. . . finds the motion [for summary judgment] is well taken as to claims arising out of
the conduct of Snider Electric . . . [, and t]he motion is granted with regard to any
claims related to the electrical matters and denied as to any remaining claims.” In
addition, summary judgment was granted with respect “to the stray voltage claims
supported by the testimony of Mr. Stetson[,]” Plaintiff’s expert. We conclude that
these orders together were sufficiently broad to prevent Plaintiff from asserting its
negligence causes of action against JMAR at the trial on the breach of contract claims.
Thus, we conclude there was no waiver of the arguments Plaintiff now makes.
{10} 	JMAR also asserts that Plaintiff should have sought clarification from the
district court on the scope of the orders so as to prevent waiver of these claims, and
that because Plaintiff approved the orders as to form, it waived its opportunity to do
so. 	We disagree that Plaintiff was required to raise ambiguity of the orders in the

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district court that JMAR now perceives and raises for the first time on appeal. We
therefore proceed to consider Plaintiff’s claims of error regarding JMAR’s negligence.
{11} 	“Summary judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law.” Self v. United
Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “On appeal
from the grant of summary judgment, we ordinarily review the whole record in the
light most favorable to the party opposing summary judgment to determine if there is
any evidence that places a genuine issue of material fact in dispute.” 	City of
Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M.
717, 213 P.3d 1146. 	“However, if no material issues of fact are in dispute and an
appeal presents only a question of law, we apply de novo review and are not required
to view the appeal in the light most favorable to the party opposing summary
judgment.” Id.
A. 	Doctrine of Circuity
{12} 	The doctrine of circuity of actions has been recognized in other jurisdictions
and some federal courts to resolve lawsuits as a matter of law when a plaintiff has
agreed to indemnify one defendant pursuant to a settlement while pursuing damages
from another defendant who has a right of indemnity from the defendant that plaintiff
has agreed to indemnify. A circular chain of indemnification results, in which the
plaintiff ends up indemnifying a co-defendant for the claim that it recovered against

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another co-defendant. Thus, the doctrine was developed to prevent needless litigation
and resolve such lawsuits as a matter of law. 	See Wal-Mart Stores, Inc. v. RLI Ins.
Co., 292 F.3d 583, 594 (8th Cir. 2002) (“Generally, courts will not allow parties to
engage in circuitous action when the foreseeable end result is to put the parties back
in the same position in which they began.”); Moore v. Sw. Elec. Power Co., 737 F.2d
496, 501 (5th Cir. 1984) (“When such circular patterns of indemnity develop, . . .
courts resolve the matter by denying recovery to [the] plaintiffs.”); Ward v. IHC
Health Servs., Inc., 2007 UT App 362, ¶ 14, 173 P.3d 186 (adopting the doctrine of
circuity in the Utah courts and noting that although never recognized before, it likely
has its roots in the same policies as the mootness doctrine). 	We have not yet
considered whether the doctrine of circuity applies in New Mexico, and it is not
necessary for us to do so in this case.
{13} 	Plaintiff has asserted negligence theories against JMAR arising from JMAR’s
alleged negligent design, negligent misrepresentation, negligent hiring, and negligent
supervision in the construction of the dairy. JMAR argues that based on traditional

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indemnification rules set forth in Otero v. Jordan Restaurant Enterprises, it would be
entitled to indemnification from Snider Electric on all of these claims because it was
the passive actor and Snider Electric was actively negligent in failing to ground the
wiring system. 	1996-NMSC-047, ¶¶ 2-3, 14, 122 N.M. 187, 922 P.2d 569 (citing
Restatement (Second) of Torts § 422(b) (1965), which states: “[a] possessor of land
who entrusts to an independent contractor construction, repair, or other work on the
land, or on a building or other structure upon it, is subject to the same liability as
though he had retained the work in his own hands to others on or outside of the land
for physical harm caused to them by the unsafe condition of the structure . . . [if he has
possession of the land while the work is being completed, or] after he has resumed
possession of the land upon its completion[,]” and providing that a landowner is
entitled to traditional indemnification from the contractor under these circumstances).
{14} 	Assuming we were to adopt the doctrine of circuity, Plaintiff’s claims cannot
be resolved as a matter of law on summary judgment because the causes of action are
based on the negligence of JMAR in designing the electrical system, negligently hiring
and supervising Snider Electric, and negligently misrepresenting that Snider Electric
was an “expert in the business of installing electrical wiring for commercial dairies.”
JMAR cannot seek traditional indemnification from Snider Electric on these claims
because the claims have nothing to do with any alleged negligence on the part of
Snider Electric. Plaintiff also asserts that he has abandoned all pure vicarious liability

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causes of action against JMAR that could give rise to a right of traditional
indemnification and that he is only asserting against JMAR causes of action directly
that are subject to comparative fault. See NMSA 1978, § 41-3A-1(C) (1987); Otero,
1996-NMSC-047, ¶ 3; In re Consol. Vista Hills Retaining Wall Litig., 119 N.M. 542,
893 P.2d 438 (1995). Because a question of fact remains as to whether Plaintiff may
recover a remedy solely from JMAR on the causes of action made directly against
JMAR, Plaintiff’s lawsuit is not barred by the doctrine of circuity at this stage of the
case. Further, the agreement between Plaintiff and Snider Electric requires Plaintiff
to reduce any judgment against JMAR by any amount that Snider Electric is liable to
JMAR. 	Thus, the agreement resolves any potential claims for proportional
indemnification that JMAR might have against Snider Electric under the causes of
action Plaintiff has brought against JMAR. See Kirby v. N.M. State Highway Dep’t,
97 N.M. 692, 643 P.2d 256 (Ct. App. 1982).
{15} 	The doctrine of circuity may have applicability in some circumstances under
New Mexico law, where a defendant is entitled to total indemnification under
traditional indemnification; however, because Plaintiff has alleged causes of action
against JMAR involving its direct negligence, the doctrine of circuity does not apply

9
to bar Plaintiff’s claims at this stage in the proceeding because of our adoption of
comparative fault. See Trujillo v. Berry, 106 N.M. 86, 87, 738 P.2d 1331, 1332 (Ct.
App. 1987) (stating that notwithstanding New Mexico’s adoption of comparative
fault, traditional indemnification is still available in cases involving vicarious liability
or strict liability, where the liability of the indemnitee arises not from its own fault,
but from its relationship with the party at fault). However, that is not the case before
us here.
{16} 	We therefore conclude that summary judgment was improperly granted because
there remain disputed questions of fact as to whether JMAR was a passive or active
tortfeasor and whether it was entitled to traditional indemnification from Snider
Electric on any of the negligence claims brought directly against JMAR.
B. 	Opinion of Laverne Stetson
{17} 	JMAR filed a motion for summary judgment asserting that Mr. Stetson’s
opinions are not admissible because they lack evidentiary support in the record and
that without this opinion evidence of causation, Plaintiff’s claims fail. Specifically,
JMAR contended that because Mr. Stetson is of the opinion that the amount of stray
voltage necessary to adversely affect dairy animals is approximately 2 to 4 volts at a
cow contact point, his opinion should be excluded because there was no objective

1 Larson v. Williams Elec. Coop., Inc., 534 N.W.2d 1 n.1 (N.D. 1995) describes
stray voltage as follows:
In order to understand stray voltage or neutral-to-earth voltage,
one must first understand the neutral-grounded network. All electricity
leaving an electrical substation must return to that substation in order to
complete a circuit. Unless that circuit is completed, electricity will not
flow. The current leaves the substation on a high voltage line which
eventually connects to some electrical “appliance.” After exiting the
“appliance” that current must return to the substation. The neutral-
grounded network provides the returning current two choices. Either it
can return via the neutral line, which accounts for the second wire on our
electrical poles, or it can return through the ground. These two pathways
comprise the grounded-neutral network. Electricity flows through the
path of lowest resistance. If there exists more resistance in the neutral
line than in the ground, the current will flow through the ground to return
to the substation.
Neutral-to-earth voltage or stray voltage will occur when current
moves from either the neutral line to the ground or from the ground to
the neutral line. It uses a cow as a pathway if that animal happens to
bridge the gap between the two. A cow’s hooves provide an excellent
contact to the earth while standing on wet concrete or mud, while at the
same time the cow is contacting the grounded-neutral system consisting
of items such as metal stanchions, stalls, feeders, milkers, and waterers.
The current simply uses the cow as a pathway in its eventual return to the
substation. Apparently very slight voltages can affect cattle. Evidence in
this case suggested anything greater than one volt can be catastrophic to
a dairy farm.
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evidence of stray voltage at the 2 volt threshold in the Rio Leche Dairy.1 The district
court agreed and granted the motion.
{18} 	Rule 11-702 NMRA provides: 	“A witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an
opinion or otherwise if the expert’s scientific, technical, or other specialized

11
knowledge will help the trier of fact to understand the evidence or to determine a fact
in issue.” The admission of expert testimony lies in the discretion of the trial court.
State v. Torres, 1999-NMSC-010, ¶ 27, 127 N.M. 20, 976 P.2d 20; State v. Alberico,
116 N.M. 156, 169, 861 P.2d 192, 205 (1993). “An abuse of discretion standard of
review, however, is not tantamount to rubber-stamping the trial judge’s decision,” and
we are not prevented from conducting a meaningful analysis of the admission of the
expert testimony “to ensure that the trial judge’s decision was in accordance with the
Rules of Evidence and the evidence in the case.” Alberico, 116 N.M. at 170, 861 P.2d
at 206; see Torres, 1999-NMSC-010, ¶ 27. Moreover, when the trial court applies a
wrong legal standard in determining whether evidence is admissible, an abuse of
discretion results. See Dahl v. Turner, 80 N.M. 564, 568, 458 P.2d 816, 820 (Ct. App.
1969). 	Finally, we observe that “in light of the liberal approach of our rules of
evidence to the admission of evidence and the heightened qualifications of modern
day jurors, any doubt regarding the admissibility of expert opinion evidence ‘should
be resolved in favor of admission, rather than exclusion.’” Parkhill v. Alderman-Cave
Milling & Grain Co., 2010-NMCA-110, ¶ 60, 149 N.M. 140, 245 P.3d 585 (quoting
Lee v. Martinez, 2004-NMSC-027, ¶ 16, 136 N.M. 166, 96 P.3d 291) (Vigil, J.,
specially concurring)), cert. quashed 2013-NMCERT-005, ___ P.3d ___ (No. 29,120,
May 10, 2013).

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{19} 	It is now settled that under Rule 11-702, the admissibility of expert testimony
depends upon three requirements: 	“(1) that the expert be qualified; (2) that the
testimony be of assistance to the trier of fact; and (3) that the expert’s testimony be
about scientific, technical, or other specialized knowledge with a reliable basis.” State
v. Downey, 2008-NMSC-061, ¶ 25, 145 N.M. 232, 195 P.3d 1244; accord Torres,
1999-NMSC-010, ¶ 23; Alberico, 116 N.M. at 166, 861 P.2d at 202. We address each
requirement in turn to determine if the district court properly excluded Mr. Stetson’s
testimony.
1. 	Whether Mr. Stetson is Qualified
{20} 	The parties do not dispute that Mr. Stetson is qualified to render an opinion on
stray voltage in this case. 	We agree. 	Nevertheless, we set forth his qualifications
because, as will become apparent, his qualifications are relevant to our analysis and
ultimate conclusion that his opinions are admissible.
{21} 	Mr. Stetson’s vitae is twenty-nine pages long, and we provide only highlights.
Mr. Stetson has a bachelor of science degree and a master of science degree in
agricultural engineering. In working on his master’s degree, he took many courses in
electrical engineering, as the main portion of his master’s degree was focused on
electrical aspects of agriculture. Mr. Stetson worked as an agricultural engineer for
the United States Department of Agriculture and as adjunct professor of biological
systems engineering at the University of Nebraska from 1962 to 2000. Mr. Stetson’s

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membership 	in 	professional 	organizations 	includes 	the 	American 	Society 	of
Agricultural Engineers (ASAE) since 1962, the Institute of Electrical and Electronic
Engineers (IEEE) since 1989, the International Association of Electrical Inspectors
(IAEI) since 1985, and the National Fire Protection Association (NFPA) from 1995-
2005.
{22} 	From 1971 to 2000, Mr. Stetson conducted research by way of laboratory and
field experiments on the safety, electrical requirements, and load management of
irrigation and farmstead equipment. 	In this regard, Mr. Stetson has published 274
articles and papers. More specific to this case, six publications relate to stray voltage
generally; eight relate to electrical systems for agricultural buildings; and twenty-three
publications address electrical wiring of dairies, stray voltage in dairies, and the
effects of stray voltage on dairy cows. 	He served on two panels of the National
Electric Code and led in the development or revision of most of the present electrical
standards that apply to agriculture. Mr. Stetson also developed instrumentation and
techniques to detect, correct, and prevent stray voltage in agricultural buildings,
including dairy barns, and he helped develop American Society of Agricultural &
Biological Engineers (ASABE) standards for electrical installations in rural buildings
and to protect against stray voltage and other risks.
{23} 	Mr. Stetson is a principal author of the “Wiring Handbook for Rural Facilities”
published by the Midwest Plan Service as MWPS-28 (3d ed. 2006) that is in common

14
use nationally. 	Midwest Plan Service is an educational consortium of twelve
universities and the United States Department of Agriculture headquartered at Iowa
State University. In addition, Mr. Stetson was a key instructor numerous times in a
three-day “Stray Voltage Investigators” short course offered by the University of
Wisconsin at Madison, and he also conducted day-long courses in detecting and
correcting stray voltage for personnel and electricians of Rural Power Supplies in
South Dakota, Minnesota, Iowa, Colorado, Texas, and Nebraska.
{24} 	Since 2000, Mr. Stetson has worked as a consulting engineer and served as an
expert witness in sixteen separate matters. 	He has been qualified to testify as an
expert witness by courts in Nebraska, Oklahoma, Michigan, Wisconsin, and Idaho,
and he has testified or given expert opinions in cases in Nebraska, Kansas, New York,
Idaho, Missouri, and Minnesota, which settled.
2. 	Whether Mr. Stetson’s Testimony Will Assist the Trier of Fact
{25} 	The requirement that the testimony be of assistance to the trier of fact is
primarily one of relevance. State v. Anderson, 118 N.M. 284, 291, 881 P.2d 29, 36
(1994). If an opinion is not sufficiently tied to the facts in the case, it will not assist
the jury in resolving a factual dispute in the case. Downey, 2008-NMSC-061, ¶ 30.
We therefore examine whether Mr. Stetson’s opinions are tied to the facts of the case
and therefore relevant.

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{26} 	Mr. Stetson followed a defined analytical process to arrive at his conclusions.
First, he knew there was a potential stray voltage problem at the Rio Leche Dairy.
Second, he reviewed the data produced by Precision Electric, noted the items it found
regarding how the dairy was improperly wired by Snider Electric, and the corrections
Precision Electric made. The Precision Electric data revealed numerous deficiencies,
failings, and faults in how Snider Electric installed the electrical systems in the dairy,
all of which have been found to cause stray voltage. His third step was to examine the
deposition of Mr. Snider, where he learned how Snider Electric wired the dairy. Mr.
Snider’s deposition also revealed that Mr. Snider was unaware of the requirements of
Chapter 547 of the National Electric Code on how to wire an agricultural building.
In fact, Mr. Snider did not even know that Chapter 547 of the National Electric Code
existed. 	Based on the foregoing information, Mr. Stetson formulated his initial
conclusions, and his final step was to speak to Plaintiff. Plaintiff told him that after
Precision Electric corrected the work done by Snider Electric, the cows came in easier
into the barn and they milked faster, without any change in their feed.
{27} 	When he completed his analysis of the data, Mr. Stetson submitted an affidavit
setting forth the following findings:
• 	When the Rio Leche Dairy was built, no plans, drawings, or
specifications existed to govern the construction. 	The only
blueprints or drawings related to the project were for the electrical
panels in the equipment room. There was no wiring lay-out for
the rest of the building so there was, and is, no standard, direction

16
or guide available for workmen to follow during construction, or
for the inspectors to inspect thereafter.
• 	Persons involved in construction had no experience with wiring
dairy facilities, and in fact, both the general contractor [JMAR]
and the electrical contractor [Snider Electric] acknowledge they
had never heard of stray voltage and did not know what it was at
the time.
• 	Stray voltage happens in circumstances which are hard to detect
and must be carefully protected against during the construction
process. Construction of a dairy facility, without an awareness of
stray voltage, its risks, and the construction outlined in MWPS-
28, creates a dramatic risk that stray voltage will develop during
the dairy parlor’s use, at times not necessarily predictable.
• 	Milk cows are hypersensitive to electrical current. Stray voltage
harms milk cow production because it affects the cow’s behavior,
causing the cow to let down less than all her milk.
• 	The work performed by Precision Electric, including the work
papers . . . reviewed, discloses that stray voltage was identified as
present in the Rio Leche Dairy parlor. 	Corrective steps were
taken immediately after it was discovered. Those steps, taken by
Precision [Electric], which was a company knowledgeable with
dairy parlor construction and wiring, appear to have eliminated
the stray voltage problem on the farm.
Based on these findings, Mr. Stetson concluded:
• 	The precise, pinpoint source of stray voltage at Rio Leche Dairy
cannot be ascertained now and may not have been at any time
except as Precision Electric was able to eliminate it with the work
[it] performed as disclosed in its records. 	Precision’s work
indicates that the most probable source of stray voltage was with
problems in the original construction of the project.
• 	I am reasonably certain, based on my education, training, and
experience, and information disclosed about the manner in which

17
the dairy parlor was constructed, that its development of stray
voltage over time was inevitable and stray voltage actually did
develop within the facility. This occurred because large amounts
of electrical current are used in a mechanical system as complex
as a dairy facility; to use it without injury to animals, the dairy
facility must be grounded in a reasonable fashion that complies
with the constructions standards of MWPS-28. 	When stray
voltage is not [properly] prevented by proper grounding, stray
voltage can develop.
{28} 	These opinions were subsequently explored in Mr. Stetson’s deposition. Mr.
Stetson confirmed his opinion that there was a sufficient amount of stray voltage at
the Rio Leche Dairy to affect milk production when Precision Electric started its
work. Mr. Stetson repeated that the deficient and improper wiring of the Rio Leche
Dairy by Snider Electric, in his opinion, caused stray voltage to occur. Mr. Stetson
testified:
The wiring that Precision Electric determined there was improper
connection of neutrals in grounds, which the neutral current then gets on
the grounded current and that can affect animals. There was improper
grounding of the metal. 	There was the improper wiring. 	There was
improper selection of wiring materials, metal conduit, which can also
carry current. So the wiring methods that [Snider Electric] used and the
wiring materials with all the things that we know cause stray voltage. So
when we find stray voltage, the thing you do is you correct the
grounding. You correct the grounds and neutrals, and you correct the
equipment to make sure it’s nonconductive.
Mr. Stetson then elaborated in greater detail on each of the wiring deficiencies and
how they cause stray voltage.

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{29} 	Mr. Stetson was also informed by Plaintiff that before Precision Electric did its
work, the cows were reluctant to enter the barn, and milking time took longer.
Moreover, it was “very significant” to Mr. Stetson that after Precision Electric
completed its work, milk production improved dramatically.
{30} 	Based on the foregoing information and data, Mr. Stetson testified he was
confident to a reasonable degree of scientific certainty, based on his engineering
judgment, that the way the dairy was grounded and wired caused stray voltage in a
quantity sufficient to affect milk production.
{31} 	We conclude that Mr. Stetson’s opinions are sufficiently grounded in the facts
of the case, and relevant. Specifically, they are of assistance to the jury in deciding
whether negligence resulted in stray voltage being present in the Rio Leche Dairy.
See Rule 11-401 NMRA (stating evidence is relevant if “it has any tendency to make
a fact more or less probable than it would be without the evidence, and . . . the fact is
of consequence in determining the action”).
3. 	Whether Mr. Stetson’s Opinions Are Reliable
{32} 	We now come to the pivotal question posed under this issue. 	In his initial
affidavit, Mr. Stetson expressed his opinion that “[t]he amount of stray voltage
necessary to adversely affect dairy animals is approximately 2 to 4 volts.” 	In his
subsequent depositions and affidavit, he never wavered from this opinion. Further,
he testified that authoritative literature, such as the 1991 United States Department of

2Nevertheless, reported cases indicate that the amount of voltage necessary to
affect a cow remains a matter of dispute among experts. See Winner Bros., L.L.C. v.
Seitz Elec., Inc., 2009-Ohio-2316, 912 N.E.2d 1180, at ¶¶ 10-18 (discussing fact that
the plaintiff’s expert disagreed with the Redbook threshold); Hoover’s Dairy, Inc. v.
Mid-Am. Dairymen, Inc., 700 S.W.2d 426, 434 n.7 (Mo. 1985) (en banc) (“A reading
of the literature suggests that it is still a disputed point on the extent of voltage
necessary to [a]ffect a cow.”).
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Agriculture (USDA) publication, “Effects of Electric Voltage/Current on Farm
Animals,” (commonly called the “Redbook”), states that the amount of stray voltage
necessary to affect dairy animals is approximately 2 to 4 volts, and that this threshold
is verified by further research.2
{33} 	However, Mr. Stetson acknowledged that there was no objective evidence of
stray voltage meeting this threshold in the Rio Leche Dairy. 	In order to feel
comfortable in reaching a scientific conclusion, Mr. Stetson would want an
appropriate stray voltage investigation conducted, following proper protocols. In this
regard, Mr. Stetson recommended taking voltage measurements at least at four
different cow contact points at a facility, and the measurements are ideally made over
a period of time, at least over two milkings by a digital or analog paper graph
recording changes in voltage at various intervals over that period of time. He would
want to graph voltages between two points at various intervals during that period of
time covering two milkings, and the measurements would be between a reference
ground rod and one of the four cow contact points selected at the dairy. In addition,

20
he recommended using a 500-Ohm shunt resistor between the two contact points to
simulate the resistance of a cow when measuring the volts. However, such a stray
voltage investigation was never conducted in this case.
{34} 	Precision Electric did not do a graph to measure the voltage over time, and it
did not use a 500-Ohm shunt resistor. Most electrical contractors such as Precision
Electric do not have the necessary equipment, and only people who specialize in stray
voltage investigations would have the type of equipment used to make such
measurements. 	Rather than conducting a stray voltage investigation, Precision
Electric conducted what Mr. Stetson called a stray volt survey, and he said that based
on the survey, there is no way to determine what piece of equipment or what physical
pieces of the building or structures were the source of the stray voltage.
{35} 	Donald DeGray of Precision Electric testified he made visual checks and
voltage checks throughout the Rio Leche Dairy and only made notes to determine
what repairs to the wiring were needed. The maximum measurement made in a cow
contact area was .52 volts. Thus, the measurements taken by Precision Electric were
not even half of the amount of voltage necessary to affect behavior and milk
production. 	Nevertheless, Mr. Stetson relied on Mr. DeGray’s testimony that he
found miswiring and corrected it and on the notes Mr. DeGray made on what was
found in the dairy. “[T]here were many—several things that he fixed that are highly
causative of stray voltage.”

21
{36} 	After his deposition, Mr. Stetson submitted a second affidavit setting forth his
opinions. He made it clear that his opinions were based on his knowledge, education,
and training, using research applications, knowledge, and methodologies contained
in peer-reviewed and peer-compiled publications. Moreover, he said, his opinions
were based on sufficient data generally considered to be reliable and accepted by
experts in his field. Those opinions are:
• 	It is more probable that stray voltage emanated from the original
installation of electric parts and components at Rio Leche Dairy
than from any other source. . . . 	[G]iven the construction
techniques used and errors made, as identified in my deposition,
it is far more likely the source of stray voltage was from
construction deficiencies and errors [than from any other source].
• 	The level of stray voltage, which I believe was transient at the Rio
Leche Dairy facility, was sufficient to adversely affect the
production of milk by cows in the herd.
{37} 	Mr. Stetson’s deposition was taken a second time. He was asked how much of
his engineering opinion is based on objective facts, and how much is predicated on his
engineering experience. Mr. Stetson answered, “I would say the majority was based
on my experience. 	When I see a notation that grounds and neutrals were
interconnected [at the Rio Leche Dairy], I recall the various times I saw those and
corrected them and found it solved the stray voltage problem. My experience is a very
large factor in that conclusion.” 	He was then asked to quantify how much of his
opinion of scientific probability was based on his engineering experience, and Mr.

22
Stetson answered, “In this case I would say it would be probably [seventy] percent
experience because all I had was the improper wiring things that Precision Electric
had found and corrected. So I didn’t have very much hard evidence, but I had a lot
of past experience from solving problems where those types of wirings had occurred.”
Thus, seventy percent of his opinion is based on his engineering experience or
expertise and thirty percent is based upon the objective evidence. Mr. Stetson asserted
his experience-based methodology has never produced erroneous results.
{38} 	In cases where the expert testimony is based on the knowledge, training, or
experience of the witness, the Daubert-Alberico factors do not apply. 	See State v.
Torrez, 2009-NMSC-029, ¶ 21, 146 N.M. 331, 210 P.3d 228; see also Alberico, 116
N.M. at 168, 861 P.2d at 203-04 (adopting factors set forth in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993) for evaluating the admissibility of expert testimony
involving scientific evidence). Nevertheless, a district court is still required to ensure
that the proposed testimony is reliable. 	Torrez, 2009-NMSC-029, ¶ 21. 	“[W]hen
testing the reliability of non-scientific expert testimony, rather than testing an expert’s
scientific methodology as required under Daubert and Alberico, the court must
evaluate a non-scientific expert’s personal knowledge and experience to determine
whether the expert’s conclusions on a given subject may be trusted.” Id. While this
inquiry is similar to determining whether the expert is qualified, they are not identical

23
because the inquiry under this factor is to “test the validity of the expert’s
conclusions.” Id. ¶ 22.
{39} 	It is not disputed in the record before us that there was stray voltage at the Rio
Leche Dairy before Precision Electric remedied the wiring installed by Snider Electric.
Mr. Stetson’s opinion that “[s]tray voltage harms milk cow production because it
affects the cow’s behavior, causing the cow to let down less than all her milk” is
likewise not disputed. Finally, it is not disputed that before Precision Electric did its
work, the cows were reluctant to enter the barn, and milking time took longer; after
Precision did its work, milk production improved dramatically. The question before
us is whether Mr. Stetson’s opinion, based on his knowledge, experience, and training
that there was sufficient stray voltage in the Rio Leche Dairy to affect milk production
of the cows is sufficiently reliable under these facts to be admissible. Our answer is
in the affirmative. 	The subject of stray voltage, particularly as it relates to dairy

3See Schlader v. Interstate Power Co., 591 N.W.2d 10, 12 (Iowa 1999), li`sting
the following cases: Federated Rural Elec. Ins. Co. v. Nationwide Mut. Ins. Co., 874
F. Supp. 1204 (D. Kan.1995) (case arose from the insured’s alleged failure to prevent
or causing of stray-voltage problems); Haile v. Arkansas Power & Light Co., 907
S.W.2d 122 (Ark. 1995) (action brought against electric utility for damages suffered
to cattle allegedly caused by stray voltage); Hegg v. Hawkeye Tri-Cnty. REC, 512
N.W.2d 558, 559 (Iowa 1994) (per curiam) (customers alleging damage to their dairy
herd by stray voltage were alleging continuing wrong and could recover for damages
occurring within five-year statute of limitation); Fox v. Interstate Power Co., 521
N.W.2d 762 (Iowa Ct. App.1994) (per curiam) (dairy farmer argued against
apportionment of fault in stray voltage case); ZumBerge v. N. States Power Co., 481
N.W.2d 103 (Minn. Ct. App.1992) (consumers brought suit against electric utility for
damages resulting from stray voltage which injured their dairy herd); Johnson v.
Steele-Waseca Coop. Elec., 469 N.W.2d 517 (Minn. Ct. App.1991) (farmer sued
electric utility alleging damages to his cattle herd from stray voltage); Hoover’s Dairy,
Inc., 700 S.W.2d at 426 (purchaser of automatic milking system sued distributor and
seller alleging negligent installation for failure to test for stray voltage); Larson, 534
N.W.2d at 1 (farmer brought action against electric cooperative seeking recovery of
damages to dairy farm allegedly caused by stray voltage); Kuper v. Lincoln-Union
Elec. Co., 1996 SD 145, 557 N.W.2d 748 (dairy farmers brought action against
nonprofit rural electric cooperative for damages allegedly caused by stray voltage).
24
farms, has been addressed by many courts,3 some of which inform the result we reach
here.
{40} 	In Hoover’s Dairy, Inc., a dairy farmer obtained a jury verdict against the
distributor and seller of the milking system for negligence in failing to test for stray
voltage during its installation. 700 S.W.2d at 428. The evidence showed that it had
become generally known in the industry that a potential stray voltage problem can
result when installing a milking system. 	Id. at 429. 	Further, the consequence of
electrical shocks resulting from stray voltage “is that the cows become nervous during

25
milking time and may not give all their milk. If milk remains in a cow’s udder, it may
lead to a bacterial infection called mastitis.” Id. Several weeks after the system was
installed, the milking time of the cows increased, the cows became nervous upon
entering the barn, and there was an increase in an infection of mastitis in the cows.
Id. at 430. After observing that proof of proximate cause may be established by either
direct or circumstantial evidence, the court held that the evidence was sufficient to
support the jury’s finding of causation. Id. at 434. Specific to our case, the court said:
[F]acts were introduced from which the jury could conclude that stray
voltage was present and caused the increase in mastitis. A number of
expert witnesses and numerous publications indicated that stray voltage
could cause mastitis in dairy cows, a fact virtually undisputed at trial.
The symptoms commonly observed as incidents to stray voltage were
observed on respondent’s dairy farm within weeks after the installation.
Additionally, there was a dramatic increase in mastitis shortly after the
installation and there was a[n] amelioration of the problem after
eliminating the stray voltage. The issue, therefore, was properly a jury
question.
Id. (footnote omitted).
{41} 	Likewise, in Carpenter v. Consumer’s Power Co., 584 N.W.2d 375 (Mich. Ct.
App. 1998), vacated on other grounds by 615 N.W.2d 17 (Mich. 2000), the dairy
farmer obtained a jury verdict against a power company for negligence in failing to
discover and remedy stray voltage. In this case, that evidence showed that cows may
be reluctant to enter a barn where stray voltage is present and that during milking, they
may kick the milking equipment and people. 	Id. at 378. 	In addition, they will

26
produce less milk and will produce milk unevenly, leaving milk in the udders, causing
mastitis. Id. The dairy farmer’s cows exhibited these symptoms, and after the stray
voltage problem was corrected, the cows’ behavior returned to normal. Id. at 378-79.
On appeal, the power company argued that the evidence “merely demonstrated that
stray voltage was present, but did not demonstrate any act or omission on the part of
[the power company] that caused harm to [the dairy farmer].” Id. at 382. The court
disagreed and concluded that the evidence supported the jury’s finding that the power
company’s negligence was the proximate cause of the dairy farmer’s damages, stating:
There was also sufficient evidence to support a finding that
defendant’s breach of its duty was the proximate cause of plaintiffs’
injuries. 	Expert witnesses, as well as defendant’s own pamphlet
concerning the effects of stray voltage on dairy farms, discussed the
symptoms caused by the effects of stray voltage in cows. The cows . . .
displayed these symptoms. Furthermore, there was evidence that [the]
plaintiffs’ milk production decreased in the years before the correction
of the voltage problem. Therefore, the trial court did not err in denying
[the] defendant’s motion for JNOV.
Id. at 382. In Schlader, the court concluded that expert testimony was not needed in
a stray voltage case. 591 N.W.2d at 14. It reasoned that while the subject of stray
voltage is technical, the nature of electricity and the results of contact with it by
humans and animals is not beyond a common person’s understanding. 	Id. 	In
reversing summary judgment, the court said:
A fact question is generated if reasonable minds can differ on how the
issue should be resolved. The [plaintiffs] cited evidence by the milking
equipment supplier that he discerned the voltage problems on their farm.

27
There were also depositions of analysts reciting that the isolator or block
installed by [the defendant] did decrease the voltage in the [plaintiffs’]
milking parlor. There was also testimony from a veterinarian that related
the health problems experienced by the [plaintiffs’] dairy herd. He also
noted the improvement in the milking herd after the block or insulator
was installed. 	According the [plaintiffs’] ‘every legitimate inference’
from their evidence, it cannot be said they have failed to show injuries
to the dairy herd resulting from electric voltage in the milking parlor.
Id.
{42} 	While the foregoing cases focused on the sufficiency of the evidence rather than
on the admissibility of expert opinions, they are nonetheless persuasive on the
question of the reliability of Mr. Stetson’s opinions. 	His testimony regarding the
behavior of cows affected by stray voltage is similar to evidence presented in these
other cases. 	Thus, Mr. Stetson could properly rely on his extensive knowledge,
education, training, and experience as an agricultural engineer and unquestioned
expertise on the effects of stray voltage on dairy cows to express his opinion, based
on the facts of the case, that Plaintiff’s dairy cows were exposed to a sufficient amount
of stray voltage to adversely affect their milk production.
{43} 	The district court agreed with JMAR that a condition for the admission of Mr.
Stetson’s opinions was measurable stray voltage meeting the threshold of 2 to 4 volts.
We conclude the district court erred in making this legal conclusion. 	While the
absence of measurable stray voltage meeting the threshold of 2 to 4 volts goes to the
weight the jury may give to his opinion, its absence does not make his opinion

28
inadmissible. We therefore reverse this order granting JMAR summary judgment.
III. 	CONCLUSION
{44} 	The orders granting summary judgment to JMAR are reversed, and the case is
remanded for future proceedings consistent with this Opinion.
{45} 	IT IS SO ORDERED.
______________________________
MICHAEL E. VIGIL, Judge
WE CONCUR:
__________________________________
MICHAEL D. BUSTAMANTE, Judge
__________________________________
CYNTHIA A. FRY, Judge