King v. Cole's Poultry, LLC et al

Filing 451

ORDER granting in part and denying in part 428 Motion in Limine. Signed by District Judge Michael P. Mills on 2/9/2017. (lpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
JAMES E. KING, SR., et al.

PLAINTIFFS

v.

Civil Action No.: 1:14-cv-00088-MPM-DAS

COLE’S POULTRY, LLC, et al.

DEFENDANTS

ORDER
This cause comes before the Court on defendant Peco Foods, Inc.’s (“Peco”) Omnibus
Motion in Limine [428], in which Peco raises eighteen individual motions in limine. Plaintiffs
filed a response opposing many of the motions. Having reviewed the submissions of the parties,
in addition to relevant authorities and evidence, the Court is now prepared to rule.
Standard for Motions in Limine
“The purpose of a motion in limine is to allow the trial court to rule in advance of trial on
the admissibility and relevance of certain forecasted evidence.” Harkness v. Bauhaus U.S.A.,
Inc., 2015 WL 631512, at *1 (N.D. Miss. Feb. 13, 2015) (additional citations omitted). In this
context, “[e]vidence should not be excluded . . . unless it is clearly inadmissible on all potential
grounds.”1 Id. (quoting Fair v. Allen, 2011 WL 830291, at *1 (W.D. La. Mar. 3, 2011))
(emphasis added).
Evidentiary rulings “should often be deferred until trial so that questions of foundation,
relevancy and potential prejudice can be resolved in proper context.” Rivera v. Salazar, 2008
WL 2966006, at *1 (S.D. Tex. July 30, 2008) (citing Sperberg v. Goodyear Tire & Rubber Co.,

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See also U.S. v. Porter, 2016 WL 740393, at *3 (E.D. La. Feb. 25, 2016) (quoting Harris v.
City of Circleville, 2010 WL 816974, at *2 (S.D. Ohio Mar. 5, 2010)) (“[A] court should not
make a ruling in limine unless the moving party meets its burden of showing that the evidence in
question is clearly inadmissible.”) (emphasis added).
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519 F.2d 708, 712 (6th Cir. 1975)). Moreover, the “[d]enial of a motion in limine does not
necessarily mean that all evidence contemplated by the motion will be admitted at trial. Denial
merely means that without the context of trial, the court is unable to determine whether the
evidence in question should be excluded.” Gonzalez v. City of Three Rivers, 2013 WL 1150003,
at *1 (S.D. Tex. Feb. 8, 2013) (quoting Hawthorne Partners v. AT&T Tech., Inc., 831 F.Supp.
1398, 1400 (N.D. Ill. 1993); Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83
L.Ed.2d 443 (1984)).
This Court has previously emphasized that “[t]he purpose of motions in limine is not to
re-iterate matters which are set forth elsewhere in the Rules of Civil Procedure or Rules of
Evidence, but, rather, to identify specific issues which are likely to arise at trial, and which, due
to their complexity or potentially prejudicial nature, are best addressed in the context of a motion
in limine.” Maggette v. BL Development Corp., 2011 WL 2134578, at *4 (N.D. Miss. May 21,
2011) (emphasis in original); see also Estate of Wilson v. Mariner Health Care, Inc., 2008 WL
5255819, at*1 (N.D. Miss. Dec. 16, 2008) (“[M]otions in limine should be narrowly tailored to
address issues which will likely arise at trial and which require a pre-trial ruling due to their
complexity and/or the possibility of prejudice if raised in a contemporaneous objection.”).
Additionally, a motion “set[ting] forth a lengthy laundry list of matters, most of them of a highly
vague nature . . . constitutes an improper ‘shotgun’ motion which fails to meet this court’s
standards for motions in limine.” Estate of Wilson, 2008 WL 5255819, at *1.
Discussion
With this standard in mind, the Court turns to the case at hand. As previously stated,
within the present motion, Peco raised eighteen individual motions in limine. The Court has
considered each motion and will address them in turn.

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First Motion:
First, Peco requests that the Court exclude any evidence regarding alleged nuisances that
occurred after July 20, 2011. On November 16, 2016, the Court entered an order denying
Plaintiffs’ motion to extend the damages period, rendering alleged nuisances that occurred after
the filing of the instant suit irrelevant. Plaintiffs assert that they “generally do not oppose this
motion. However, such evidence may be relevant at the punitive damages stage of this action.”
The Court will grant Peco’s motion as it pertains to the initial trial of this matter. If
necessary, the Court will consider the issue at the punitive damages stage.
Second Motion:
Similar to its first motion, Peco also requests that the Court exclude “evidence regarding
alleged damages or losses of use and enjoyment of Plaintiffs’ properties after July 20, 2011.”
Peco asserts that this evidence should be excluded for the same reasons set forth in its first
motion. Plaintiffs state that they do not oppose the motion but that such evidence may be
relevant at the punitive damages stage of this action.
As with the first motion, the Court will grant the present motion, and it will take up the
issue again at the punitive damages stage, if needed.
Third Motion:
Peco next argues that the Court should exclude “evidence regarding alleged physical
symptoms, health problems, medical conditions, and/or emotional distress.” In support of this
proposition, Peco states that “Plaintiffs seek compensatory damages solely for the alleged loss of
use and enjoyment of their properties. They do not allege to have incurred any physical
symptoms, health problems, medical conditions, and/or emotional distress caused by living in the
vicinity of the Cole’s and Skeels farms.”

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In opposition, Plaintiffs assert, in pertinent part:
Defendant’s motion fails to grasp the true nature of Plaintiffs’ claims. Plaintiffs
have stated, repeatedly, that they are not making true medical claims, nor will
they seek compensation for any medical bills from any healthcare professional.
This is because Plaintiffs’ claims are not based upon medical injury. They are
based fundamentally on their inability to use and enjoy their property, which may
include certain symptomatic reactions that Plaintiffs may experience as a result of
their exposure to noxious air laden with particulate matter.
The Court finds Plaintiffs’ argument to be well-taken. In the Court’s view, the physical
symptoms experienced by Plaintiffs are relevant to the extent that they tend to show their
diminished ability to use and enjoy their property. This issue strikes the Court as one that would
likely be proper to address in a jury instruction. The Court declines, however, to exclude the
evidence altogether; accordingly, the motion will be denied.
Fourth Motion:
Peco also asserts that “[t]he Court should prevent any testimony or evidence that
Plaintiffs may incur health problems or medical conditions in the future caused by living in the
vicinity of the Skeels and Cole’s farms. Moreover, the Court should exclude any testimony by
Plaintiffs that they have fears or concerns about potential health problems or medical conditions
in the future that may be caused by alleged hazardous substances, pathogens, toxins, odors, or
other emanations from the poultry farms.” To this point, Peco emphasizes that Plaintiffs cannot
recover damages based on their fear of potential future injuries under Mississippi law.
Plaintiffs assert that they have not and do not intend to seek compensation for future
medical injuries. “Rather, Plaintiffs only seek recovery for present injuries and concerns, such as
anxiety and discomfort as a result of Defendant’s frequent and unreasonable invasion of
Plaintiffs’ properties.” Further, Plaintiffs state that they “have properly limited any alleged
damages to present inconvenience, annoyance, and discomfort, including anxiety about their

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inability to plan for or use their property, and feeling trapped inside their homes by the offensive
and oppressive odors generated by Defendant.”
The Court finds that Peco’s motion should be denied, as Plaintiffs do not appear to be
pursuing the future damages which Peco asserts are impermissible. The Court will not permit
Plaintiffs to attempt to obtain recovery based on their fear for potential future injuries; however,
the Court finds that Plaintiffs’ anxiety and discomfort concerning the present and future state of
their properties is admissible. Accordingly, the motion will be denied.
Fifth Motion:
Peco requests that the Court exclude “any suggestion at trial that Peco operates in a
manner that supports animal cruelty[.]” Plaintiffs do not oppose the motion. Therefore, it will
be granted.
Sixth Motion:
Next, Peco requests that the Court “bar evidence or argument by Plaintiffs that racial
motivation played a role in the geographic locations of the Cole’s and Skeels farms.” Within its
argument concerning this motion, Peco cited the deposition transcript from Plaintiff James E.
King, Sr., wherein King testified as follows:
Q.
A.
Q.
A.

Q.
A.
Q.
A.

Somebody was looking to sell lots there?
That’s right.
And they didn’t sell any?
They didn’t sell anything. I think Martha bought it. I think she bought it.
And I think she was having a problem building those barns, too. I don’t
know whether it was from Jackson or where. She was having a problem
getting them built. And one of her workers told a friend of mind that she
told – that he told him that Ms. Martha said she didn’t give a damn what
them niggers say, she would build what the hell she wanted built on her
property. I want to tell you just like they told me.
Who told you that?
That’s what one of her workers told a friend of mine.
One of her workers told a friend of yours who told you?
That’s right.
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Peco asserts that “contrary to Mr. King’s inadmissible double hearsay testimony
regarding what someone allegedly told Mr. King’s friend, absolutely no evidentiary basis exists
for introducing allegations of racial animus into this trial.”
In response, Plaintiffs argue that “[a]ll evidence concerning racial motivations should not
be summarily excluded before trial has occurred and before any evidence has been presented and
should be addressed on a case-by-case basis at trial. This motion in limine is too vague and
broad and should be stricken.” Plaintiffs do, however, concede that the sample testimony
provided within Peco’s motion is an example of improper testimony that should not be admitted
at trial.
The Court finds Plaintiffs’ response persuasive. Under Mississippi law, “[o]ne is subject
to liability for a private nuisance if . . . the invasion is either (a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or
reckless conduct . . .” Christmas v. Exxon Mobil Corp., 138 So.3d 123, 126 (Miss. 2014). Thus,
one way in which a plaintiff may prove his/her nuisance case is to show that the invasion was
intentional. In the Court’s view, statements regarding racial animus toward the citizens living in
the surrounding community have some probative value as to whether Peco acted intentionally.
Thus, as Plaintiffs request, the Court will not summarily exclude all evidence pertaining to this
issue at this time. The Court does, however, agree with the parties that the portion of the
deposition transcript provided by Peco is an example of inadmissible testimony. But because the
Court finds that all testimony regarding racial animus should not be excluded at this time, the
motion will be denied.

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Seventh Motion:
In its seventh motion, Peco argues that:
Plaintiffs do not allege that emissions from the Cole’s and Skeels farms
contaminate the Plaintiffs’ water sources or violate the Clean Water Act
(“CWA”). Plaintiffs have not conducted any tests or water analyses on Plaintiffs’
properties that demonstrate any abnormality in the quality of water. Nor have
Plaintiffs provided any evidence that they suffered any injury related to water
quality, or designated the proper medical expert to establish causation. Fed. R.
Evid. 702. Accordingly, the Court should bar all claims, allegations, or
discussion of alleged contamination of the Plaintiffs’ water sources or alleged
violations of the CWA.
Plaintiffs respond by stating that they “should be permitted to explain to the jury their
fears and concerns related to living near poultry kept in confinement, which in some instances,
may include concerns of water contamination or water quality.”
The Court agrees with Plaintiffs’ argument. The individual plaintiffs’ subjective fears
and concerns appear to be relevant as to their claims for loss of use and enjoyment of their
properties. Certainly, the jury is free to accept or reject the reasonableness of that testimony;
however, the Court is not willing to exclude it altogether. The Court does, though, agree with
Peco that Plaintiffs should not be permitted to suggest that Peco violated the Clean Water Act, as
that issue has not been pled nor has discovery been conducted concerning it. Therefore, the
Court will grant the motion to the extent that it seeks to bar admission of claims or allegations
regarding that act.
Eighth Motion:
Peco argues that the Court should prohibit Plaintiffs from testifying “about an increase of
flies at their properties that they believe migrate from the Cole’s and Skeels farms to the
Plaintiffs’ properties” because they are not qualified as experts on this issue.

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Plaintiffs have designated an expert witness—Dr. Robert Hall—to testify about the
presence of flies on Plaintiffs’ properties and the source of those flies. However, the Court finds
that Plaintiffs themselves should be permitted to testify about the alleged increase in fly
population around the time the Cole’s and Skeels operations began, as they have personal
knowledge of those facts.
The Court can foresee an issue potentially arising if an individual plaintiff attempts to
speculate at trial as to the source of the flies. However, the Court cannot rule upon that issue
without the context of trial. The Court also notes that Peco is not without a remedy, as it will be
given the opportunity at trial to cross-examine each of Plaintiffs’ witnesses. See Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)
(“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.”). The motion will be denied.
Ninth Motion:
Peco argues that the Court should exclude any testimony regarding the condition of the
public roadways in the area surrounding Plaintiffs’ properties and the Cole’s and Skeels farms.
Specifically, Peco avers that “some Plaintiffs complained about the condition of public roadways
near their property, the deterioration of which they attribute to truck traffic from the Cole’s and
Skeels farms. Testimony regarding the condition of public roadways is irrelevant in this matter,
as Peco exercises no control over the roadways.” In addition, Peco asserts that only some of the
plaintiffs have complained of the increased traffic and its effect on the roadways and further
argues that to the extent the Court does permit testimony concerning the condition of the public
roadways, “it should bar Plaintiffs from making blanket statements regarding alleged effects of

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traffic on the roadways and limit the discussions of relevant evidence only to those Plaintiffs
who are making such claims.” Finally, Peco states that any complaints regarding the condition
or use of the public roads would only be relevant if Plaintiffs were pursuing a claim for public
nuisance rather than private nuisance.
Under Mississippi law, a plaintiff may recover damages in a private nuisance action
where the damage itself is unique to the plaintiff despite the fact that the public at large may also
be affected by the defendant’s conduct. See Leaf River Forest Prods., Inc. v. Ferguson, 662
So.2d 648, 665 (Miss. 1995). Thus, Plaintiffs assert that they “should be permitted to offer
evidence of how they have personally been aggrieved or damaged by Defendant’s treatment of
the roads near Plaintiffs’ properties.” Plaintiffs also reiterate that they “are not seeking to recoup
damages for lost property value or to repair the damage to the roadways, but seek damages based
upon the annoyance, inconvenience, discomfort, and sickness from Defendant’s treatment of
those roads.”
The Court finds Plaintiffs’ arguments persuasive and that the motion should be denied.
Plaintiffs should be permitted to testify as to the effect that Peco’s conduct had on the public
roadways in the relevant area. Although the deterioration of the public roadways harms the
public at large, Plaintiffs have allegedly been uniquely affected by Peco’s conduct, as they have
suffered annoyance, inconvenience, and discomfort in a different manner than other members of
the public.
Nevertheless, the Court does note that Peco’s motion does have some merit to the extent
that it seeks to prohibit “blanket statements regarding alleged truck traffic on the roadways[.]”
However, while the Court will not permit such speculative statements regarding the traffic on the
roadways nor will it permit parties to testify on that issue unless they possess personal

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knowledge, the Court cannot make such a ruling until it arises in the context of trial.
Accordingly, the motion must be denied.
Tenth Motion:
In its tenth motion, Peco states that many individual plaintiffs testified in their
depositions that they have witnessed poultry litter being applied to farmland in the vicinity of
Plaintiffs’ properties. However, Peco argues that “none of the plaintiffs who testified about
poultry litter being applied to farmland in the area . . . can identify that the alleged litter came
from the Cole’s or Skeels farms or that Peco had any involvement whatsoever in the application
of the litter.” Thus, Peco requests that the Court prohibit any evidence concerning the “alleged
application of poultry litter to land in the vicinity of Plaintiffs’ properties.”
In response, Plaintiffs argue that the spreading of chicken litter and waste from Peco’s
poultry operations effectively spreads odors to the surrounding areas, making the conduct
relevant to this case.
The Court finds that the motion should be denied. The conduct which Peco wishes to
exclude strikes the Court as highly relevant to this action. It appears that Peco wants this Court
to exclude the evidence based on the fact that none of the individual plaintiffs actually observed
the litter being taken from the Cole’s and Skeels farms before being spread in the surrounding
area. This position is not well-taken. Peco can certainly inquire about this issue on crossexamination; however, the Court is not willing to wholly exclude that evidence. The motion will
be denied.
Eleventh Motion:
Peco asserts that “[t]he Court should prevent Plaintiffs’ counsel from making statements
or comments about other nuisance actions or that juries in prior cases involving claims of

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nuisance against poultry and other livestock companies and growers have awarded damages to
other plaintiffs.” Plaintiffs have stated that they do not oppose this motion. Accordingly, it will
be granted.
Twelfth Motion:
Peco’s entire argument as to this motion states:
The Court should exclude any evidence, such as documents or testimony, related
to or concerning subsequent remedial measures taken by Peco, Skeels, or Cole’s.
See Fed. R. Evid. 403. Moreover, any introduction of such information would
create a substantial danger of misleading the jury and unduly prejudicing Peco,
and would certainly be more prejudicial than probative. Id.
In response, Plaintiffs assert that they “cannot meaningfully address this motion because
Defendant fails to offer any evidence that it believes Plaintiffs may present of subsequent
remedial measures taken in this case that would be improper.”
As stated above, “[t]he purpose of motions in limine is not to re-iterate matters which are
set forth elsewhere in the Rules of Civil Procedure or Rules of Evidence, but, rather, to identify
specific issues which are likely to arise at trial, and which, due to their complexity or potentially
prejudicial nature, are best addressed in the context of a motion in limine.” Maggette, 2011 WL
2134578, at *4. Peco’s motion does not satisfy this standard, as it failed to identify any specific
issue that is likely to arise at trial. In fact, it appears that Peco simply wishes for the Court to
reiterate that it will apply Rule 407 of the Federal Rules of Evidence, which prohibits the
admission of evidence regarding subsequent remedial measures to show negligence or culpable
conduct. Peco can rest assured that the Court will apply Rule 407—and all other Rules of
Evidence—at trial. However, Peco did not provide sufficient information in its motion for the
Court to grant its request, as the Court is unclear which specific evidence Peco wishes to exclude.
The motion will be denied.

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Thirteenth Motion:
Peco argues that “[t]he Court should preclude Plaintiffs’ counsel from referencing
themselves or their law firms as ‘environmental lawyers’ or any other reference that suggests
they constitute enforcers of the law or identifies them with the better part of human nature.”
Plaintiffs do not oppose this motion. It will be granted.
Fourteenth Motion:
Peco asks the Court “to preclude Plaintiffs or Plaintiffs’ counsel from making any
comment to the effect that the jury should put themselves in the shoes of the Plaintiffs. Such
comments violate the ‘Golden Rule,’ which prohibits this type of instruction to the jury.”
Plaintiffs have stated that they do not oppose Peco’s request. Accordingly, the motion will be
granted.
Fifteenth Motion:
Peco argues that the Court should “preclude Plaintiffs’ counsel from mentioning,
inquiring, or suggesting that the jury should consider Peco’s net worth, financial status, or size
(including number of employees and divisions) unless and until the Court should find that such
matters are relevant and their probative value outweighs the prejudicial effect.”
Plaintiffs oppose the motion. Specifically, they assert that in order to submit their
temporary nuisance claim to the jury, they must present evidence that the nuisance complained
of is capable of abatement and that they must be able to explain various options that were
available to abate the nuisance and the cost for doing so. Accordingly, Plaintiffs state that they
should be permitted to present that Peco could have abated the nuisance, “given its available
assets and resources[.]”

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While the Court notes that Plaintiffs’ failed to cite any authority that they must show the
nuisance is capable of abatement, the Court nevertheless finds that evidence of Peco’s financial
status has some relevance in this case. As previously mentioned, under Mississippi law, “[o]ne
is subject to liability for a private nuisance if . . . the invasion is either (a) intentional and
unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability
for negligent or reckless conduct . . .” Christmas, 138 So.3d at 126. Further, the Mississippi
Supreme Court has also held that “[t]he law of private nuisances is a law of degree, and usually
turns on a question of fact, whether the use is unreasonable or not, under all the circumstances.”
Reed v. Cook Const. Co., Inc., 336 So.2d 724, 725 (Miss. 1976) (quoting Reber v. Ill. Cent. R.R.
Co., 138 So. 574 (Miss. 1932)); see also T.K. Stanley, Inc. v. Cason, 614 So.2d 942, 953 (Miss.
1992) (“[E]very case must be decided on its own facts, giving due consideration to the
reasonableness of the use of the defendant’s property and the nature of the interference with the
plaintiff’s property.”).
The Court finds that although Plaintiffs need not specifically show that the nuisance was
capable of abatement in order to submit the issue to the jury, Peco’s financial ability to
potentially abate the nuisance has some probative value as to the reasonableness of Peco’s
conduct. Thus, the Court finds that Plaintiffs should be permitted to show that Peco possessed
the financial resources to abate the nuisance. However, the Court does agree with Peco that the
evidence should not be admitted for any other purpose, as it is not relevant to any other issue.
Therefore, the Court will permit Plaintiffs to introduce evidence to show that Peco had the
financial capability to abate the alleged nuisance, but it will not allow the admission of the
evidence for any other purpose. In fact, the Court finds that a jury instruction to this point may
be appropriate.

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Sixteenth Motion:
Peco requests that the Court preclude Plaintiffs from comparing or discussing the relative
wealth of Plaintiffs and Peco during the liability phase of the trial. Plaintiffs do not oppose the
motion. It will be granted.
Seventeenth Motion:
Peco asserts in its seventeenth motion that:
The Court should prevent Plaintiffs’ counsel from discussing or referencing the
parties’ respective burdens of proof or any other legal issues during voir dire
examination. Discussion of legal issues, including burdens of proof, should be
reserved for closing argument.
Plaintiffs respond that they “should be permitted to inquire during voir dire examination
about a potential juror’s understanding of the law and his/her ability and willingness to follow
the law.”
The Court finds no reason that Plaintiffs should not be permitted to ensure through voir
dire that prospective jurors have the ability and willingness to follow the applicable law. In fact,
this strikes the Court as an important and desirable notion preferable in all trials. The motion
will be denied.
Eighteenth Motion:
Peco requests that the Court bar Plaintiffs from proffering evidence or statements made in
settlement negotiations. Rule 408 of the Federal Rules of Evidence specifically prohibits this
type of evidence from being admitted into evidence. See FED. R. EVID. 408(a). As previously
stated, “[t]he purpose of motions in limine is not to re-iterate matters which are set forth
elsewhere in the Rules of Civil Procedure or Rules of Evidence, but, rather, to identify specific
issues which are likely to arise at trial, and which, due to their complexity or potentially
prejudicial nature, are best addressed in the context of a motion in limine.” Maggette, 2011 WL
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2134578, at *4 (emphasis in original). Thus, the Court finds that it was unnecessary for Peco to
file a motion in limine regarding this issue, as it is specifically prohibited by the Federal Rules of
Evidence. Nevertheless, the Court will grant the request.
Conclusion
In accordance with the foregoing analysis, Peco’s Omnibus Motion in Limine [428] is
GRANTED IN PART and DENIED IN PART.
SO ORDERED, this the 9th day of February, 2017.

/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

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