WARREN — A lawsuit filed by a North Bloomfield dairy farmer regarding the death of more than 25 of his cows because of “stray electric voltage” has been bouncing from one legal jurisdiction to another and appears to be headed back to the original venue.
Recently, the 11th District Court of Appeals ruled the legal action filed by Ohio Edison regarding a dispute between the utility and Double K Kirby Farms of North Bloomfield must return to the Public Utilities Commission of Ohio.
The appeals court referred the matter back to the PUCO for a determination of whether Ohio Edison is responsible for what the farmer called “abnormal behavior” of his dairy cows and damage to their udders and reduced milk production in April 2017.
The Warren-based appeals court ruled a Trumbull County Common Pleas courtjudge did not have jurisdiction to decide any part of the case now, but may have jurisdiction later.
Double K’s lawsuit sought at least $25,000 in damages from Ohio Edison, alleging it failed to provide proper electrical voltage to the farm and failed to install an appropriate device to reduce a type of voltage called “neutral-to-earth” the farmer believes damaged the cows’ udders.
Brian Garvine of Columbus, the attorney for Double K, alleged that electricity problems caused the cows to be “electrically shocked when milking, eating and drinking,” and the “stray electric voltage was also burning the tissue in the cows udder, causing poor health and death.”
The farmer reported that “In excess of 25 cows … died from the stray electric voltage [and] another 32 cows had to be sold for slaughter because the prescribed medications did not cure the mastitis caused by the stray voltage.”
Mastitis in dairy cows is an inflammation of the mammary gland and udder tissue that usually occurs as a response to bacterial invasion of the teat caused by a variety of bacterial sources present on the farm. It also can result from chemical, mechanical or thermal injury to the cow’s udder, according to the Agriculture and Horticulture Development Board.
Double K’s complaint states in October 2017, the farmer contacted Precision Ag Automation to test for stray electrical voltage, and Precision Ag found excessive voltage.
New Pittsburg Large Animal Clinic evaluated Double K’s cows and opined the stray voltage “caused by Ohio Edison caused substantial damage to Double K’s cows,” the lawsuit states.
Because of the voltage issue, Double K used its own electrical generator as a power source for milking operations and asked Ohio Edison to install a “neutral isolation device to reduce the neutral to earth voltages.” Ohio Edison failed to do so, a Double K filing states.
An Ohio Edison filing, however, states the company did install a “neutral isolator” Nov. 13, 2017.
In August, Judge Andrew Logan of Trumbull County Common Pleas Court, who lives in Farmdale and has an agricultural background, ruled he had jurisdiction to hear the complaint, despite arguments from Ohio Edison and its attorney, John Dellick of Youngstown, that only the PUCO had jurisdiction.
Logan noted Double K originally filed its complaint with the PUCO “regarding the same issues before this court.” At that venue, Ohio Edison claimed the PUCO did not have jurisdiction over the damage claims involved.
The PUCO agreed, saying it could not award monetary damages and dismissed the damages part of the complaint.
In the appeals court’s decision this month, its judges said because the farmer’s complaint relates to service issues that fall within the purview of the PUCO, the PUCO must make a determination of whether Ohio Edison committed a violation.
If it makes that kind of determination, the matter can return to the common pleas court for a determination on damages, the appeals court ruling states.
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