If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

FALMOUTH COOPERATIVE COMPANY,

Plaintiff/Counterdefendant-Appellee,

UNPUBLISHED

October 15, 2020

v No. 348568

Osceola Circuit Court

PETER BONTEKOE, doing business as 

BONTEKOE FARMS,

LC No. 16-014810-CZ

Defendant/Counterplaintiff-Appellant,

and

PAM BONTEKOE, doing business as BONTEKOE 

FARMS, DOUG BONTEKOE, doing business as 

BONTEKOE FARMS, and AMY BONTEKOE, 

doing business as BONTEKOE FARMS,

Defendants/Counterplaintiffs.

Before: MURRAY, C.J., and CAVANAGH and CAMERON, JJ.

PER CURIAM.

In this action concerning allegedly defective cattle feed, defendant-counterplaintiff Peter 

Bontekoe (“Peter”), doing business as Bontekoe Farms, appeals as of right1the trial court’s 

 

1 Peter filed his claim of appeal from a stipulated order of dismissal with prejudice. Plaintiffcounterdefendant, Falmouth Cooperative Company, argues that this Court lacks jurisdiction 

because Peter, having stipulated to the dismissal of this action, does not qualify as an “aggrieved 

party” for purposes of MCR 7.203(A). Although Peter may not be “aggrieved” as a result of the 

final order from which he now appeals, he was aggrieved by the trial court’s earlier order granting 

summary disposition of his counterclaims to Falmouth Cooperative Company, and thus he 
-2-

stipulated order of dismissal with prejudice. The other defendants-counterplaintiffs—Pam 

Bontekoe (“Pam”), Doug Bontekoe (“Doug”), and Amy Bontekoe (“Amy”), all of whom also do 

business as Bontekoe Farms—were dismissed without prejudice below and are not parties to this 

appeal.2 We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of the parties’ dispute concerning livestock feed that the Bontekoes 

purchased from Falmouth Cooperative Company (FCC) and fed to their dairy cows at Bontekoe 

Farms in 2013 and 2014. FCC initiated this action against the Bontekoes in October 2016, filing 

a one-count complaint asserting an account-stated claim for the Bontekoes’ alleged failure to pay 

for the disputed feed. After answering FCC’s complaint, the Bontekoes filed a counterclaim, 

which they subsequently amended. In the amended counterclaim—which was filed after Pam, 

Doug, and Amy were dismissed as parties—Peter alleged that the feed provided by FCC “was 

defective, lacked necessary and/or appropriate nutrient levels and was toxic” to the Bontekoes’

“close up” cows (i.e., “impregnated adult female cow[s] . . . in the final 21 days of pregnancy”), 

which resulted in those cows developing “milk fever” (also known as hypocalcemia). Peter alleged 

that as a result of consuming FCC’s feed, “many” of his cows died, suffered miscarriages or 

stillbirths, produced less milk, required veterinary treatment, and were sold as “damaged stock” at 

“bargain basement” prices. The amended counterclaim asserted five counts against FCC: (1) 

products liability; (2) violation of the “obligation of good faith” under MCL 440.1304, which is 

part of the Michigan Uniform Commercial Code (UCC), MCL 440.1101 et seq.; (3) violation of 

the “implied warranty of merchantability” under the UCC; (4) violation of express warranties 

under the UCC; and (5) violation of the “implied warranty of fitness for particular purpose” under 

the UCC. 

Following a contentious period of discovery, FCC filed the two motions that are of primary 

importance here. First, it filed a motion in limine to exclude any expert testimony or conclusions 

by Peter’s son, Doug, “on the issues of: (1) diagnosis of hypocalcemia in . . . cattle; (2) the cattle 

feed that [FCC] sold to Peter Bontekoe allegedly causing the alleged hypocalcemia; (3) damages 

. . . allegedly sustained and projections; and (4) any other matter that calls for expert witness 

testimony[.]” FCC argued that Doug was not qualified to offer expert opinions in those regards,

and that his opinions concerning hypocalcemia were not sufficiently reliable to be admissible 

under MRE 702 and MCL 600.2955(1).

The second motion of import is FCC’s motion for summary disposition of Peter’s 

counterclaims under MCR 2.116(C)(10). FCC argued that the proposed expert opinions regarding 

causation of Peter’s two expert witnesses—Dr. Herb Bucholtz and Steve Adsmond—were not 

sufficiently reliable to warrant admission under MRE 702 and MCL 600.2955(1). In the absence 

of such expert testimony, FCC argued, Peter had failed to present sufficient substantively 

admissible evidence to allow a rational trier of fact to conclude that the hypocalcemia suffered by 

 

qualifies as an “aggrieved party” under MCR 7.203(A). See Federated Ins Co v Oakland Co Rd 

Comm, 475 Mich 286, 291-292; 715 NW2d 846 (2006).

2 Collectively, we will refer to defendants-counterplaintiffs as “the Bontekoes.”
-3-

the Bontekoes’ dairy herd during the pertinent timeframe was caused by FCC’s feed. FCC also 

argued that even assuming, arguendo, that the expert testimony of Dr. Bucholtz and Adsmond 

concerning causation was admissible, it was insufficient to create a genuine issue of material fact 

regarding causation because even with such evidence, a rational juror could not conclude that the 

disputed feed—rather than one of the many other potential causes of hypocalcemia in dairy cows—

more likely than not caused the hypocalcemia. 

Without seeking leave of the trial court to exceed the 20-page limit set forth by MCR 

2.119(2)(a), Peter filed a 47-page, largely single-spaced response opposing FCC’s motion for 

summary disposition. He argued that Adsmond and Dr. Bucholtz were qualified to offer expert 

testimony with regard to whether FCC’s feed caused Bontekoe Farms’s close-up cows to develop 

hypocalcemia during the disputed timeframe. In any event, Peter argued, even if the trial court 

disagreed concerning Adsmond and Dr. Bucholtz, the testimony of veterinarian Dr. Jeffrey 

Erdman was, standing alone, sufficient to yield a genuine issue of material fact for trial regarding 

causation. Peter also argued that he was entitled to summary disposition concerning the 

counterclaims under MCR 2.116(I)(2). Although Peter quoted extensively from what he 

represented to be the deposition transcripts of several witnesses (including Adsmond, Dr. 

Bucholtz, and Dr. Erdman), he did not append copies or excerpts of the certified transcripts from 

the depositions of such witnesses. Rather, with regard to Dr. Bucholtz only, Peter appended a 

typewritten list of quotations—which is not in the form of a certified transcript—purportedly 

drawn from Dr. Bucholtz’s deposition transcript. Otherwise, Peter did not include any transcript 

excerpts in support of his response brief.

The trial court granted FCC summary disposition of the counterclaims against it, reasoning 

that neither Adsmond nor Dr. Bucholtz were sufficiently qualified as experts under MRE 702 to 

testify as to causation. And, the court concluded, although Dr. Erdman was qualified as an expert, 

his testimony could not sufficiently identify a cause of milk fever in the farm’s dairy herd. Absent 

this critical evidence, the court ruled that Peter could not create a genuine issue of material fact, 

and dismissal was required. Thereafter, FCC’s claims against Peter remained pending, and so the 

action below continued. Ultimately, the parties stipulated to the entry of a final order dismissing 

all remaining claims, after which Peter claimed his instant appeal.

II. ANALYSIS

Peter argues that the trial court abused its discretion by holding that the proposed expert 

testimony of Doug, Dr. Bucholtz, and Adsmond with regard to causation was too unreliable to 

merit admission under MRE 702 and MCL 600.2955(1). Peter also argues that the trial court erred 

by granting FCC summary disposition of Peter’s counterclaims. 

We review for an abuse of discretion a trial court’s decision whether to exclude expert 

evidence for lack of reliability. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016). “An 

abuse of discretion occurs when the trial court chooses an outcome falling outside the range of 

principled outcomes,” and “[t]he admission or exclusion of evidence because of an erroneous 

interpretation of law is necessarily an abuse of discretion.” Id. (quotation marks and citation 

omitted). “We review de novo questions of law underlying evidentiary rulings, including the 

interpretation of statutes and court rules.” Id.
-4-

A trial court’s ruling regarding a motion for summary disposition is also reviewed de novo. 

Heaton v Benton Constr Co, 286 Mich App 528, 531; 780 NW2d 618 (2009). 

A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim. 

Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine 

issue regarding any material fact and the moving party is entitled to judgment as a 

matter of law. In reviewing a motion under MCR 2.116(C)(10), this Court 

considers the pleadings, admissions, affidavits, and other relevant documentary 

evidence of record in the light most favorable to the nonmoving party to determine 

whether any genuine issue of material fact exists to warrant a trial. A genuine issue 

of material fact exists when the record, giving the benefit of reasonable doubt to 

the opposing party, leaves open an issue upon which reasonable minds might differ. 

[Zaher v Miotke, 300 Mich App 132, 139-140; 832 NW2d 266 (2013) (quotations 

marks and citations omitted).]

“Circumstantial evidence can be sufficient to establish a genuine issue of material fact, but mere 

conjecture or speculation is insufficient.” McNeill-Marks v Midmichigan Med Ctr-Gratiot, 316 

Mich App 1, 16; 891 NW2d 528 (2016). 

The moving party bears the initial burden of production, which may be satisfied “in one of 

two ways.” Quinto v Cross & Peters Co, 451 Mich 358, 361; 547 NW2d 314 (1996). “First, the 

moving party may submit affirmative evidence that negates an essential element of the nonmoving 

party’s claim. Second, the moving party may demonstrate to the court that the nonmoving party’s 

evidence is insufficient to establish an essential element of the nonmoving party’s claim.” Id. at 

362 (quotation marks and citation omitted). Once the moving party satisfies its burden in one of 

those two ways, “[t]he burden then shifts to the opposing party to establish that a genuine issue of 

disputed fact exists.” Id.

Preliminarily, we note that Peter’s appellate appendix contains materials that are not 

properly considered in reviewing the trial court’s ruling on the motion for summary disposition. 

Under MCR 2.116(G)(6), “[a]ffidavits, depositions . . . and documentary evidence offered in 

support of or in opposition to a motion based on subrule (C)(1) - (7) or (10) shall only be considered 

to the extent that the content or substance would be admissible as evidence to establish or deny the 

grounds stated in the motion.” See also Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 

(1999) (“The reviewing court should evaluate a motion for summary disposition under MCR 

2.116(C)(10) by considering the substantively admissible evidence actually proffered[.]”) 

(emphasis added). In addition, “this Court’s review is limited to review of the evidence properly 

presented to the trial court.” Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 

Mich App 362, 380; 775 NW2d 618 (2009). 

Peter’s appellate appendix includes excerpts from certified deposition transcripts of 

himself, Doug, Dr. Erdman, Adsmond, and Dr. Bucholtz. Although Peter purportedly quoted

portions of these transcripts in his response to FCC’s motion for summary disposition of the 

counterclaims—which was, aside from its 47-page length and failure to double space, the only 

proper response that Peter filed, see MCR 2.116(G)(1) and MCR 2.119(A)(2)(a)—he did not 

append copies of those transcripts or excerpts of them to his initial response. Nor did he append 

such copies to his subsequent “amended” response or his response to FCC’s reply brief regarding 
-5-

summary disposition. Because Peter did not properly present those transcripts to the trial court

before its decision, we can only properly consider them here to the extent that portions of them 

were presented to the trial court as appendices to FCC’s motion for summary disposition. See 

Barnard Mfg Co, 285 Mich App at 380-381.

Turning to the substantive merits, we are unpersuaded by Peter’s instant claims of error. 

MRE 702 provides:

If the court determines that scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand the evidence or to determine a 

fact in issue, a witness qualified as an expert by knowledge, skill, experience, 

training, or education may testify thereto in the form of an opinion or otherwise if 

(1) the testimony is based on sufficient facts or data, (2) the testimony is the product 

of reliable principles and methods, and (3) the witness has applied the principles 

and methods reliably to the facts of the case.

Additionally, MCL 600.2955 provides, in relevant part:

(1) In an action for the death of a person or for injury to a person or property, 

a scientific opinion rendered by an otherwise qualified expert is not admissible 

unless the court determines that the opinion is reliable and will assist the trier of 

fact. In making that determination, the court shall examine the opinion and the 

basis for the opinion, which basis includes the facts, technique, methodology, and 

reasoning relied on by the expert, and shall consider all of the following factors:

(a) Whether the opinion and its basis have been subjected to scientific 

testing and replication.

(b) Whether the opinion and its basis have been subjected to peer review 

publication.

(c) The existence and maintenance of generally accepted standards 

governing the application and interpretation of a methodology or technique and 

whether the opinion and its basis are consistent with those standards.

(d) The known or potential error rate of the opinion and its basis.

(e) The degree to which the opinion and its basis are generally accepted 

within the relevant expert community. As used in this subdivision, “relevant expert 

community” means individuals who are knowledgeable in the field of study and are 

gainfully employed applying that knowledge on the free market.

(f) Whether the basis for the opinion is reliable and whether experts in that 

field would rely on the same basis to reach the type of opinion being proffered.

(g) Whether the opinion or methodology is relied upon by experts outside 

of the context of litigation.
-6-

(2) A novel methodology or form of scientific evidence may be admitted 

into evidence only if its proponent establishes that it has achieved general scientific 

acceptance among impartial and disinterested experts in the field.

As a general rule, “there is no requirement that an expert’s qualifications and methods be 

incorporated into an affidavit submitted in support of, or opposition to, a motion for summary 

disposition. Rather, the content of the affidavits must be admissible in substance, not form.” 

Dextrom v Wexford Co, 287 Mich App 406, 428; 789 NW2d 211 (2010). However, as the trial 

court noted, trial courts have a “gatekeeping obligation” under MRE 702, which obliges them “to 

review all expert opinion testimony” for admissibility under that rule. Craig v Oakwood Hosp, 

471 Mich 67, 82; 684 NW2d 296 (2004). “This gatekeeper role applies to all stages of expert 

analysis. MRE 702 mandates a searching inquiry, not just of the data underlying expert testimony, 

but also of the manner in which the expert interprets and extrapolates from those data.” Gilbert v 

DaimlerChrysler Corp, 470 Mich 749, 782; 685 NW2d 391 (2004). “Careful vetting of all aspects 

of expert testimony is especially important when an expert provides testimony about causation.” 

Id. “While a party may waive any claim of error by failing to call this gatekeeping obligation to 

the court’s attention, the court must evaluate expert testimony under MRE 702 once that issue is 

raised.” Craig, 471 Mich at 82. 

Moreover, a party need not wait until trial to raise such a challenge; rather, the issue is 

properly raised at summary disposition. See, e.g., Elher, 499 Mich at 14 (affirming a trial court’s 

grant of summary disposition to a defendant doctor because the opinion testimony of the plaintiff’s 

proposed expert would have been inadmissible at trial under MRE 702), and Amorello v Monsanto 

Corp, 186 Mich App 324, 331-332; 463 NW2d 487 (1990) (holding that a party relying on expert 

opinion testimony to survive summary disposition bears the burden of demonstrating that such 

testimony will be admissible at trial, under MRE 702, before it can be properly considered for 

purposes of summary disposition).

“Under MRE 702, it is generally not sufficient to simply point to an expert’s experience 

and background to argue that the expert’s opinion is reliable and, therefore, admissible.” Edry v 

Adelman, 486 Mich 634, 642; 786 NW2d 567 (2010). “[T]he whole point of Daubert[

3

] is that 

experts can’t speculate. They need analytically sound bases for their opinions, and it is axiomatic 

that an expert, no matter how good his credentials, is not permitted to speculate.” Id. at 642 n 6 

(quotation marks, citations, and brackets omitted). “[W]hile not dispositive, a lack of supporting 

literature is an important factor in determining the admissibility of expert witness testimony.” Id. 

at 640. Thus, a trial court should consider peer-reviewed literature that is cited by the parties as 

part of entertaining a Daubert challenge. Elher, 499 Mich at 28. Scholarly publications, peerreviewed studies, and administrative-agency publications are all examples of the sort of “objective 

and verifiable evidence” that can be used to support the reliability of an expert’s proffered opinion. 

Krohn v Home-Owners Ins Co, 490 Mich 145, 178; 802 NW2d 281 (2011).

Peter first argues that the trial court abused its discretion by granting FCC’s motion to 

preclude Doug from offering any expert opinions at trial concerning what caused the hypocalcemia 

 

3 Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579, 589; 113 S Ct 2786; 125 L Ed2d 469 

(1993).
-7-

suffered by the dairy herd at Bontekoe Farms during the disputed timeframe. Peter’s trial counsel 

waived any such claim of error below, however, by affirmatively indicating to the trial court—

both in writing and at the pertinent motion hearing—that Peter intended to call Doug as an expert 

with regard to damages only, not to offer any expert opinions concerning “a specific medical 

diagnosis,” or what caused Bontekoe Farms’s dairy herd to develop hypocalcemia. It is axiomatic 

“that error requiring reversal may only be predicated on the trial court’s actions and not upon 

alleged error to which the aggrieved party contributed by plan or negligence.” Cassidy v Cassidy, 

318 Mich App 463, 476; 899 NW2d 65 (2017) (quotation marks and citation omitted). “A party 

may not take a position in the trial court and subsequently seek redress in an appellate court that 

is based on a position contrary to that taken in the trial court.” Living Alternatives for 

Developmentally Disabled, Inc v Dep’t of Mental Health, 207 Mich App 482, 484; 525 NW2d 466 

(1994). Therefore, we deem Peter’s instant claim of error to have been waived in the trial court. 

See, e.g., Grant v AAA Michigan/Wisconsin, Inc (On Remand), 272 Mich App 142, 148-149; 724 

NW2d 498 (2006) (holding that the plaintiff’s trial counsel had waived a particular appellate 

argument by asserting a contrary position in the trial court). Any other result would be inconsistent 

with the principle that parties may not “harbor error as an appellate parachute.” See Bates Assoc, 

LLC v 132 Assoc, LLC, 290 Mich App 52, 64; 799 NW2d 177 (2010).

Peter also argues that the trial court abused its discretion by deciding that Adsmond’s 

proposed expert opinion regarding causation—i.e., that the hypocalcemia at Bontekoe Farms was 

caused by FCC’s failure to formulate the disputed animal feed to the nutritional specifications 

recommended by its competitor, Prince Agriproducts, Inc.—was too unreliable to be admissible 

under MRE 702 and MCL 600.2955(1).

However, as the trial court recognized, although Adsmond is admittedly neither “a 

veterinarian” nor “a medical expert,” his experience as an “animal nutritionist” and his education, 

which includes a bachelor’s degree “in animal science,” with a concentration in “bovine” animals, 

are sufficient to qualify him as an expert with regard to bovine nutrition. Thus, we perceive no 

abuse of discretion in the trial court’s conclusion that Adsmond was qualified to offer expert 

testimony about potential causes of hypocalcemia from a purely theoretical standpoint. 

Nor do we perceive any abuse of discretion in the trial court’s conclusion that Adsmond 

was not qualified to offer such expert testimony with regard to what most likely caused the 

hypocalcemia. Adsmond admitted that because he never personally visited Bontekoe Farms or 

viewed any photographs or videos of it, he was unfamiliar with the premises, the barns in which 

the dairy herd are housed, and how the farm “blends its silage” and “stores its animal feed[.]” He 

also admitted that he had not reviewed any of Bontekoe Farms’s veterinary records or any 

“necropsy report” concerning its affected cattle; that he did not know how old Bontekoe Farms’s 

affected cattle were during the disputed timeframe, what stresses they had been under, what their 

rate of milk production had been, or how many “calving cycles” they had been through; that such 

factors are relevant in determining a given cow’s risk of developing hypocalcemia; and that he 

could not “produce any scientific, peer reviewed studies” supporting his opinion regarding 

causation. In light of these admissions, Adsmond’s opinion was not sufficiently reliable to warrant 

admission under MRE 702 and MCL 600.2955(1). Given his lack of knowledge concerning the 

specific details of the hypocalcemia problem at Bontekoe Farms during the pertinent timeframe, 

his proposed expert opinion rests upon a foundation of conjecture and speculation, not informed 

expert judgment. Thus, the trial court did not abuse its discretion with regard to Adsmond’s 
-8-

proposed expert opinion. See Gilbert, 470 Mich at 783 (“A court may conclude that there is simply 

too great an analytical gap between the data and the opinion proffered.”) (quotation marks and 

citation omitted).

For similar reasons, we reject Peter’s argument that the trial court abused its discretion by 

deciding that Dr. Bucholtz’s proposed expert opinion regarding causation—i.e., that the 

hypocalcemia at Bontekoe Farms was caused by FCC’s failure to include sufficient Dietary Anion 

Cation Difference (DCAD) supplementation in the disputed animal feed—was too unreliable to 

be admissible under MRE 702 and MCL 600.2955(1). As with Adsmond, Dr. Bucholtz admitted 

that he did not visit Bontekoe Farms during the disputed timeframe. Adsmond first visited it in 

2018, and he was not aware whether any changes had been made to the “close-up cow barn” in the 

intervening period before his visit. He also admitted that he was not aware of what the cattle at 

Bontekoe Farms “actually . . . ate” during the disputed timeframe; that because only 22 of 

Bontekoe Farms’s dairy cows received blood tests during the disputed timeframe, his opinion 

concerning the actual rate of hypocalcemia in the herd that winter (i.e., that 52 of Bontekoe Farms’s 

cows had suffered hypocalcemia during that period) was based on Doug’s assertions concerning 

the number of cows that he had diagnosed as having hypocalcemia; that it was possible for dairy 

cattle to develop hypocalcemia as a result of conditions “having nothing to do with cattle 

nutrition”; that he could not “rule out” such potential “contributing factors” in this case, including 

“frozen feed, insufficient water, . . . frozen bedding, age, lactation cycles, milk production levels, 

food storage without moisture protection, mycotoxins, and mold”; that the “gold standard”

nutritional guidelines established by the National Research Council (NRC) are what those in the 

dairy industry generally “rely on,” and the NRC guidelines, which were last updated in 2001, 

mention DCAD, but do not include any “requirement for DCAD”; and that the scientific “theories”

concerning what feed formulation best prevents hypocalcemia have changed “[m]any times over 

the years[.]” 

Consequently, Dr. Bucholtz’s causation opinion regarding DCAD was not sufficiently 

reliable to warrant admission under MRE 702 and MCL 600.2955(1). As with Adsmond, given 

Dr. Bucholtz’s admitted lack of knowledge concerning the specific details of the hypocalcemia 

problem at Bontekoe Farms during the pertinent timeframe, his proposed expert opinion is founded 

on conjecture and speculation, not informed expert judgment. Accordingly, we cannot conclude 

that the trial court abused its discretion with regard to Dr. Bucholtz’s proposed expert opinion. 

Elher, 499 Mich at 21.

Having found no abuse of discretion in the trial court’s ruling concerning the proposed 

expert testimony of Doug, Adsmond, and Dr. Bucholtz, we further conclude that the trial court did 

not err by granting FCC summary disposition of Peter’s counterclaims under MCR 2.116(C)(10). 

“Michigan law does not permit us to infer causation simply because a tragedy occurred in the 

vicinity of a defective product.” Skinner v Square D Co, 445 Mich 153, 174; 516 NW2d 475 

(1994). Rather, to avoid summary disposition with regard to the element of causation, a plaintiff 

must “set forth specific facts that would support a reasonable inference of a logical sequence of 

cause and effect.” Id. The plaintiff cannot merely “posit[] a causation theory premised on mere 

conjecture and possibilities.” Id. It is true that “motions for summary judgment implicate 

considerations of the jury’s role to decide questions of material fact. At the same time, however, 

litigants do not have any right to submit an evidentiary record to the jury that would allow the jury 

to do nothing more than guess.” Id.
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In this instance, Dr. Erdman acknowledged that, in his expert opinion, it was not possible 

to isolate any single cause of the hypocalcemia problems that Bontekoe Farms suffered during the 

disputed timeframe.4 On the contrary, he testified several times that there were most likely several 

contributing causes, including the unusually harsh weather conditions5, decreased water 

consumption, and nutrition in general. Moreover, given the limited blood testing that was 

conducted, there is a dearth of evidence concerning the actual extent of the problem, i.e., the 

number of cows actually affected. There is also a dearth of evidence concerning the nutritional 

characteristics of the forage material that the Bontekoe Farms herd ate during the winter in 

question, although there is evidence that such forage, rather than FCC feed, constituted the lion’s 

share of their diet. There is also evidence that the feed may have been exposed to moisture, snow 

or ice, and may have been fed in less-than-ideal circumstances. On the other hand, there is no 

substantively admissible evidence concerning several factors that the proposed experts agreed 

were relevant in determining a given cow’s risk of developing hypocalcemia: the age of the 

affected cows, how many calves each had birthed, their breed, and their relative rate of milk 

production.

In the absence of any expert testimony to establish a causal nexus between the disputed 

livestock feed and the documented cases of hypocalcemia at Bontekoe Farms, a trier of fact would 

be left with nothing to establish a causal nexus except the temporal relationship between the feed’s 

introduction and the ensuing cases of hypocalcemia. Tacitly recognizing this, Peter argues that, 

viewing the evidence in the light most favorable to him as the nonmoving party, such a temporal 

relationship is sufficient to yield a genuine issue of material fact regarding causation. However, 

“[r]elying merely on a temporal relationship is a form of engaging in the logical fallacy of post 

hoc ergo propter hoc (after this, therefore in consequence of this) reasoning.” West v Gen Motors 

Corp, 469 Mich 177, 186 n 12; 665 NW2d 468 (2003) (quotation marks and citation omitted). 

Standing alone, such speculative temporal evidence is insufficient, as a matter of law, to yield a 

genuine issue of material fact concerning causation. See Lowery v Enbridge Energy Ltd 

Partnership, 500 Mich 1034, 1034; 898 NW2d 906 (2017) (holding that an expert’s opinion 

concerning causation, which was that an oil spill must have caused the plaintiff’s damages because 

he “wasn’t having the problems before [the oil spill] and he was having the problems afterwards,”

was insufficient to create “a genuine dispute of material fact as to causation.”) (alteration in 

original). Similarly, the temporal relationship between the disputed feed and the alleged 

hypocalcemia is insufficient for Peter to survive summary disposition with regard to causation.

Finally, we are also unpersuaded by Peter’s argument that the trial court erred by 

concluding that the failure of his proofs regarding causation was fatal to all of his counterclaims, 

 

4 For this reason, Mulholland v DEC Int’l Corp, 432 Mich 395; 443 NW2d 340 (1989), does not 

help Peter’s cause. Dr. Erdman’s testimony centered on the notion that there are several causes of 

hypocalcemia and even more factors that can exacerbate and/or accelerate hypocalcemia in dairy 

cattle. His testimony crystallized that there are many factors in both causing hypocalcemia and 

the extent to which it affects a dairy herd, with no one factor (and particularly not the feed) leaping 

out as more probably the cause of this hypocalcemia. Mulholland, 432 Mich at 416, n 18.

5 Dr. Erdman testified that although nutrition was a cause of hypocalcemia, it was not a primary 

factor, and the harsh 2013-2014 winter played a “huge” part in the hypocalcemia experienced.
-10-

including his UCC-warranty claims. In the prayer for relief in Peter’s counterclaim, the only 

specific remedy he requested was an award of damages. “A plaintiff asserting a cause of action 

has the burden of proving damages with reasonable certainty, and damages predicated on 

speculation and conjecture are not recoverable.” Health Call of Detroit v Atrium Home & Health 

Care Servs, Inc, 268 Mich App 83, 96; 706 NW2d 843 (2005). In other words, it is an essential 

element of any claim seeking legal damages that the defendant’s disputed act or omission had 

some sort of causal relationship to the plaintiff’s resulting damages. If the relationship is 

predicated on mere speculation or conjecture, the requested damages are not recoverable.

As this Court recognized in Leavitt v Monaco Coach Corp, 241 Mich App 288, 298; 616 

NW2d 175 (2000), the UCC expressly enumerates the damages that may be awarded for a breachof-warranty claim pursued under that act. Specifically, MCL 440.2714 provides: 

(1) Where the buyer has accepted goods and given notification (subsection 

(3) of section 2607)[6]he may recover as damages for any nonconformity of tender 

the loss resulting in the ordinary course of events from the seller’s breach as 

determined in any manner which is reasonable.

(2) The measure of damages for breach of warranty is the difference at the 

time and place of acceptance between the value of the goods accepted and the value 

they would have had if they had been as warranted, unless special circumstances 

show proximate damages of a different amount.

(3) In a proper case any incidental and consequential damages under the 

next section may also be recovered.

Thus, Peter’s failure to demonstrate that a genuine issue of material fact existed concerning 

causation is fatal to all of his counterclaims, including those pursued under the UCC. Absent 

evidence that the feed supplied by FCC was actually so deficient in nutrients that it affirmatively 

caused the hypocalcemia problems at Bontekoe Farms, or that it was therefore worth less than it 

would have been if delivered as warranted, a rational trier of fact could only speculate as to what 

damages might be appropriately awarded under MCL 440.2714.

 

6

In relevant part, the referenced subsection provides:

(3) Where a tender has been accepted

(a) the buyer must within a reasonable time after he discovers or should 

have discovered any breach notify the seller of breach or be barred from any 

remedy[.] [MCL 440.2607(3).]
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Affirmed. 

/s/ Christopher M. Murray 

/s/ Mark J. Cavanagh 

/s/ Thomas C. Cameron