By Sherry Bunting, Farmshine, May 10, 2023

HARRISBURG, Pa. – The legal battle continues for NoBull Solutions LLC partners Rusty Herr of Lancaster County and Ethan Wentworth of York County. Both Pennsylvania men have been jailed in their respective county prisons since April 10 and 11, respectively.

They were arrested for contempt of court after failing to respond to a May 2023 contempt order and failing to comply with a 2021 investigative subpoena seeking the name and address of NoBull’s custodian of records as well as the names and addresses of all members, managers, and other persons who direct its activities, according to the recently unsealed docket 325-MD-2021.

Herr and Wentworth will have served their 30-day commitments by this weekend (May 10 and 11, 2024).

According to counsel Robert Barnes, Esq. of Barnes Law LLP, a Petition for Writ of Habeas Corpus has been filed with the Pennsylvania Supreme Court after a Commonwealth Court Judge denied their motion for immediate release and unsealed the docket in two separate actions on April 29, 2024.

Barnes maintains that certain procedures must be followed in a civil contempt action. 

“To our knowledge those were not followed here. Wentworth and Herr were not given an opportunity to purge contempt in order to secure their release from prison – an essential requirement of civil contempt, which makes this de facto criminal contempt – a violation of Pennsylvania law,” Barnes states in an email response to Farmshine.

Even though the 30-day sentences will have been completed as they wait for the State Supreme Court to hear their appeal, Barnes says his office will “pursue the appeal to restore proper jurisdictional basis and to force the state agencies to adhere to the Pennsylvania Constitution and the Administrative Procedures Act.”

Former Pennsylvania Department of Agriculture counsel and current staff attorney with the Penn State Center for Agricultural and Shale Law Brooke Duer, Esq. told WPMT-Fox43 that the now unsealed docket shows the “civil processes for contempt are all there and were followed.”

The April arrests stemmed from prior actions by the State Board of Veterinary Medicine, which led to a Feb. 2020 complaint filed by the Pennsylvania Veterinary Medical Association (PVMA) one month before the Covid shutdown.

The PVMA alleged that Herr and Wentworth continued practicing veterinary medicine by ultrasounding other farmers’ cows in connection with NoBull’s breeding management service. PVMA asked for contempt charges through Commonwealth Court as part of that 2020 complaint.

The Department of State initiated its investigation in early 2021, issuing a subpoena order for the names and addresses of custodian of records and all parties involved in or directing activities in the business.

Both men failed to comply with the subpoena or to challenge it, according to the now unsealed docket.

“Some of us thought this had more-or-less gone away,” said Duer in the televised interview on May 2. “So, it’s kind of surprising. All of a sudden it’s back on again?”

Duer said there is no evidence that the men responded in any way or represented themselves since 2021.

(Prior dockets show they did represent themselves in prior State Vet Board actions, Herr in 2010 while he was still milking his own dairy herd, and Wentworth in 2018 while he was employed as an AI technician by Select Sires.)

“They had not only a few opportunities to come forward and prevent this kind of an outcome, but those opportunities were multiple…,” said Duer.

According to the unsealed documents, a Commonwealth Court judge signed “Orders to Commit” on October 6, 2023, which resulted in the April 2024 arrests.

The more immediate question is: Were they given the opportunity to purge the contempt at the time of arrest and incarceration, as would appear to be the process with civil contempt, according to an ACLU – Pennsylvania guide to contempt proceedings.

The deeper questions center around the future: What will happen next in terms of a level playing field for smaller farms looking to gain the benefits of integrating ultrasound into breeding management, but are not large enough to have employees trained to do it or vet practices willing to station their vet techs at small farms to do it. 

Of the NoBull customers who have contacted this reporter, nearly 90% want this integration, while they still intend to maintain their veterinary relationships through regular herd checks.

The Veterinary Practice Act does not mention pregnancy diagnosis. 

The Department of State says veterinary medical practice is further defined by the State Vet Board through adjudications.

The PVMA says a pregnant / not pregnant ‘diagnosis’ is a food safety concern because the not-pregnant diagnosis can involve recommendations for hormone treatments, or recommendations for culling open cows for the beef market.

PVMA also maintains that pregnancy diagnosis “by any mode or method” is veterinary practice. Yet blood and milk sample testing for pregnancy by other companies has been used and celebrated in Pennsylvania since at least 2015.

Several dairy trade magazines have published articles over the past 12 years about the differences in the laws between states and the trend toward laypersons doing ultrasound as the machines are widely available, and the technology has improved. A 2007 USDA survey of (larger) dairies in the West showed that nearly one-third (31.7%) of those performing pregnancy diagnosis used someone other than a veterinarian via ultrasound for breeding purposes. That was 17 years ago.

At least one Pennsylvania dairy producer reports that a veterinary practice places vet techs as employees on larger farms for training, and they do those ultrasounds to provide timely information between herd checks at a discount.

A January 2024 Progressive Dairy article by a Genex consultant examined how integrating ultrasound with breeding management is revolutionizing reproduction on U.S. dairies that are faced with the need for swift information to make economic decisions in a highly competitive, tight-margin dairy business.

Small dairy farmers continue to contact this reporter wondering what they can do about this. “How can we help?” they ask.

Virtually all of them continue their relationships with their veterinarians for regular monthly herd checks, in addition to having NoBull do ultrasound in connection with breeding service to achieve those same efficiencies in between.