Millenkamp

Facts and Procedural History

The Millenkamps raise bovine calves in Idaho. Davisco operates the “Jerome Cheese Company,” which produces milk permeate as a byproduct of its cheese-making operation. Because milk permeate is sometimes used as a source of dietary energy, protein, and minerals in livestock feeding pro- grams, Davisco sells milk permeate to several dairies near Jerome, Idaho.

Given the use of milk permeate in other feeding programs, the Millenkamps decided to investigate using it as part of their calf feeding operation. They discussed its use in their opera- tion with Davisco employee, Steven Ewing. Ewing admits that he provided the Millenkamps an analysis sheet that set forth the contents of Davisco’s milk permeate and represented that it had a pH level of at least 6. The Millenkamps also 4296 MILLENKAMP v. DAVISCO FOODS assert that Ewing told them that (1) he “thought” the milk per- meate “would be good to feed” the calves; and (2) it should be stored in plastic tanks similar to tanks Ewing observed while touring the Millenkamps’ facilities. The Millenkamps then consulted nutritionist Matt Schmitt of Cargill, Inc. After such investigation, the…