In re: NC Swine Farm Nuisance Litigation

Filing 152

ORDER denying 136 Motion to Quash. Thecourt alternatively modifies the subpoena in conformity with this order. Signed by Magistrate Judge Robert B. Jones, Jr on 7/7/2016. Counsel is reminded to read the order in its entirety for important information. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
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IN RE: NC SWINE FARM
NUISANCE LITIGATION
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Master Case No. 5:15-CV-00013-BR

0 R DE R

THIS DOCUMENT RELATES TO:
ALL CASES

This matter is before the court on Defendant Murphy-Brown LLC's ("Defendant" or
"Murphy-Brown") Motion to Quash Plaintiffs' Notice of De Bene Esse Deposition of Steven Wing.
[DE-136]. Plaintiff filed a response in opposition [DE-146], and on July 5, 2016 the court held a
telephonic hearing on the motion LDE-150]. For the reasons that follow, the motion is denied but
the court will alternatively modify the subpoena.
I. BACKGROUND
This litigation is comprised of 26 cases filed in this court alleging claims for nuisance,
negligence, and punitive damages stemming from hog farming operations in eastern North Carolina.

See, e.g.,Andersonv. Murphy-Brown, LLC, No. 7:14-CV-00183-BR, Second Am. Compl. [DE-34].
After engaging in preliminary discovery with respect to certain threshold issues, see May 21, 2015
Interim Case Management Order [DE-26], the parties selected the following five cases on which to
proceed with more detailed discovery: Anderson v. Murphy-Brown LLC, No. 7:14-CV-00183-BR;

Artis v. Murphy-Brown LLC, No. 7:14-CV-00237-BR; Gillis v. Murphy-Brown LLC, No.
7:14-CV-00185-BR; McGowan v. Murphy-Brown LLC, No. 7:14-CV-00182-BR; and McKiver v.

Murphy-Brown LLC, No. 7:14-CV-00180-BR (collectively, the "Discovery Pool Cases"). [DE-96-

1]. Discovery in the Discovery Pool Cases is underway, with fact discovery to conclude on October
31, 2016, expert discovery to take place thereafter and conclude by February 10, 2017, and
dispositive motions to be filed by March 31, 2017. See Apr. 11, 2016 Interim Scheduling Order
[DE-96-1]; May 19,2016 Interim Scheduling Order [DE-111].
II. DISCUSSION

Dr. Steven Wing is an associate professor of epidemiology at UNC Chapel Hill, and one of
his primary areas of study has been the effects ofNorth Carolina confined animal feeding operations
("CAFO") on nearby communities. June 28, 2016 Wing Decl. [DE-146-5]

~~

1, 7, 9. Plaintiffs

retained Dr. Wing as an expert and filed a declaration of his opinions on December 8, 2014 in
support of Plaintiffs' motion to amend the complaint.

Gillis v. Murphy-Brown LLC, No.

7:14-CV-00185-BR, Dec. 7, 2014 Wing Decl. [DE-31-4]. In February 2015, Dr. Wing was
diagnosed with stage 4 colon cancer with liver metastases. June 28, 2016 Wing Decl. [DE-146-5]
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2. In May 2015, Plaintiffs' counsel infonned Defendant's counsel of the possible need for a de

bene esse deposition. Checkovich Decl. [DE-138]

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4. However, Dr. Wing responded positively

to treatment and in June 2015, Plaintiffs' counsel informed Defendant's counsel Dr. Wing did not
believe such a deposition was yet needed. Hughes Decl. [DE-146-6]

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12.

On November 20, 2015, Defendant served a document subpoena on Dr. Wing, which
Plaintiffs' counsel accepted on Dr. Wing's behalf. ld.; Subpoena to Produce Documents [DE-1382]. Defendant sought raw data and related materials from studies cited in thirteen articles Dr. Wing
has authored or co-authored, twelve of which were cited in Dr. Wing's previously filed declaration
and all of which are cited in his expert report. Def.'s Mem. [DE-137] at 2-3 (citing Subpoena to
Produce Documents [DE-138-2]; Wing Expert Report [DE-138-8]).
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On December 7, 2015,

Plaintiffs served Dr. Wing's objections to the subpoena. Wing's Obj. [DE-138-4]. Plaintiffs lodged
several objections to the subpoena, including (1) that it was premature because experts had not been
formally designated and merits discovery had not yet occurred where Dr. Wing's opinions were
expected to address merits issues, (2) that the discovery would violate the scheduling order, and (3)
that the information was neither relevant nor likely to lead to the discovery of admissible evidence.
!d. Counsel for the parties had multiple calls regarding the issues raised by the subpoena, and

Plaintiffs' counsel advised Defendant's counsel that, ultimately, the information sought was in the
control of UNC and not Dr. Wing and some of the information was subject to Certificates of
Confidentiality issued by the government agencies sponsoring the research, the National Institutes
ofHealth ("NIH") and the National Institute ofEnvironmental Health Sciences ("NIEHS"). Hughes
Decl. [DE-146-6] ~~ 12-14. Plaintiffs' counsel advised Defendant's counsel to reissue the subpoena
to UNC and provided contact information for certain attorneys Plaintiffs' counsel had communicated
with at UNC, NIH, and NIEHS. !d. On February 4, 2016, Defendant responded to Dr. Wing's
objections [DE-138-5], and on March 14,2016, Dr. Wing supplemented his objections, maintaining
the previous objections, but also stating that the information sought was in the "custody and control
ofUNC" and also that at "the appropriate time, Dr. Wing will produce materials that form the basis
ofhis expert opinion," [DE-146-4].
In March and April of20 16, Dr. Wing's condition deteriorated and he was hospitalized. June
28, 2016 Wing Decl. [DE-146-5]

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3. Dr. Wing advised Plaintiffs' counsel that he needed surgery

and was not in a condition to be deposed unless the surgery was successful in providing a window
of time where he would be stronger. !d. Plaintiffs notified defense counsel of these developments.
Pls.' Opp'n [DE-146] at 3. Dr. Wing underwent surgery and indicates he is now able to sit for a
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deposition, but describes this period of improvement as temporary because his condition is terminal
and his treatment palliative. June 28, 2016 Wing Decl. [DE-146-5]

~

4. On June 15, the parties

conferred and agreed that Plaintiffs would serve Dr. Wing's expert report and deposition notice,
Defendant would object, and the parties would seek resolution from the court. Pls.' Opp 'n [DE-146]
at 3. Plaintiffs served Dr. Wing's expert report on June 16 and noticed his de bene esse deposition
for July 7. !d.
Defendant contends that Plaintiffs cannot justify the extraordinary measure oftaking their
own expert's de bene esse deposition to cover topics Plaintiffs' counsel previously disclaimed as
irrelevant and that Defendant will be significantly prejudiced if Plaintiffs are permitted to take Dr.
Wing's trial testimony on an expedited basis prior to the conclusion of fact and expert discovery.
Def.'s Mem. [DE-137] at 4-10. Plaintiffs in response contend that they will be prejudiced and suffer
irreparable harm without Dr. Wing's unique testimony, that Defendant's arguments go to
admissibility and are premature, and that no further discovery is necessary for Defendant to
adequately cross-examine Dr. Wing. Pls.' Opp'n [DE-146] at 6-10.
First, Defendant challenges the propriety of using a de bene esse deposition for an expert
witness, as opposed to a fact witness, and suggests that many courts refuse to allow an expert's prior
testimony in lieu of live testimony. Def.'s Mem. [DE-137] at 5. However, the cases cited by
Defendant are largely distinguishable and do not provide grounds for denying Plaintiffs the
opportunity to take Dr. Wing's de bene esse deposition. For example, Defendant's primary
authority, Carter-Wallace, Inc. v. Otte, 474 F.2d 529, 534-35 (2d Cir. 1972), did not involve the
taking of a de bene esse deposition, but rather addressed the use of expert testimony from a prior trial
on the same issue. And, importantly, while noting the preference for live expert testimony, the
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Second Circuit found no error in the trial judge allowing use of the prior expert testimony because
(1) the expert would have been found to be "unavailable" due to an inability to secure the expert's

attendance at trial voluntarily, (2) the expert, who had written on the subject at issue since his
dissertation, had some unique testimony to contribute, and (3) there was no prejudice to the opposing
party who knew from the beginning of the trial that the offering party would rely on the expert's
prior testimony and "had the rare opportunity to tailor its case to the defense that would be
presented." Id. at 536-37. Further, it is significant that the discussion in Carter-Wallace was
regarding the use of prior testimony, not the taking of a de bene esse deposition. Other cases cited
by Defendant in this regard involve either the use of a deposition at trial, the taking of a de bene esse
deposition after the close of discovery, which this court's Local Civil Rule 32.1 expressly allows,
or are otherwise materially distinguishable. See, e.g., Smith v. Royal Caribbean Cruises, Ltd., 302
F.R.D. 688, 692-93 (S.D. Fla. 2014) (declining to allow de bene esse deposition after the close of
discovery); Havens v. Maritime Comms./Land Mobile LLC, No. 11-993(KSH)(CLW), 2014 WL
209403 5, at *4 (D. N.J. May 20, 2014) (unpublished) (quashing trial subpoenas to witnesses outside
the geographical boundaries set by Rule 45 and denying leave to take a de bene esse deposition of
those witnesses where discovery had long been closed and to allow the depositions would allow the
deposing party to conduct inappropriate mid-trial, third-party discovery to gather information that
could have been obtained earlier); Weiss v. First Unum Life Ins., No. 02-4249 (GEB), 2010 WL
1027610, at *1-3 (D. N.J. Mar. 16, 2010) (unpublished) (finding that a doctor's conclusory
statements and counsel's arguments did not sufficiently establish illness permitting trial deposition);
Kamara v. United States, No. 04-CIV-626(THK), 2005 WL 2298176, at *6 (S.D.N.Y. Sept. 20,
2005) (unpublished) (declining to allow the use at trial of a deposition that had already been taken
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where the offering party made no showing of unavailability of the witness and the testimony
presented a hearsay problem); Aubrey Rogers Agency, Inc. v. AIG Life Ins. Co., No. 97-529 MMS,
2000 WL 135129, at *2-3 (D. Del. Jan. 13, 2000) (unpublished) (declining to allow the use at trial
of a deposition where the offering party failed to show it made reasonable efforts to assure the
expert's attendance at trial). Here, the taking of the deposition and not its use at trial is at issue, there
appears to be no question as to the legitimacy ofDr. Wing's potential unavailability, and Local Civil
Rule 32.1 expressly allows for the taking of de bene esse depositions outside the discovery period.
The court has found no authority that would preclude the taking of a de bene esse deposition on the
basis that the deponent is an expert as opposed to a fact witness.
To the extent Defendant's arguments rest on the subject matter ofDr. Wing's testimony, the
court agrees with Plaintiffs that they provide no grounds to preclude Dr. Wing's de bene esse
deposition. The relevance ofDr. Wing's testimony is hotly disputed between the parties. Defendant
argues that because Plaintiffs have represented to the court that they will not assert any medical
claims and Dr. Wing's expert report addresses alleged human health effects ofhog farms, Dr. Wing's
opinions are irrelevant. Plaintiffs, on the other hand, argue that Dr. Wing's opinions are relevant to
the issue of community impact of Defendant's operation and that the health effects commonly
associated with living in proximity to hog farms are directly relevant to social utility and use and
enjoyment of land. Plaintiffs characterize Dr. Wing as the preeminent expert on the community
impact issue of hog CAPOs in North Carolina. The disputed relevance of Dr. Wing's expert
testimony goes to the issue of whether Dr. Wing's deposition may be used at trial, as opposed to
whether it should be taken in the first instance, and provides no basis to quash the subpoena.

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Finally, Defendant argues Plaintiffs are attempting to subvert the court's scheduling order
by expediting the testimony of an expert witness and contends that, as a result, it will be immensely
prejudiced by being unable to adequately prepare to cross-examine Dr. Wing at the de bene esse
deposition. Def.'s Mem. [DE-137] at 4-5, 7-10. At the hearing, Defendant further explained that
questioning for purposes of an expert discovery deposition is different than questioning for purposes
of cross-examination at trial and that it could, in fact, prejudice Defendant with the jury were the jury
to hear Defendant ask certain questions appropriate for purposes of an expert deposition. Plaintiff
responds that Defendant has known of Dr. Wing's potential unavailability for trial, yet failed to serve
a subpoena for documents on UNC or to file a motion to compel based on Wing's objections, and
the raw data underlying Dr. Wing's studies that Defendant seeks is not necessary to depose Dr. Wing
because his opinions relate to historical work on hog confinements and not case-specific work. Pls.'
Opp'n [DE-146] at 8-9. At the hearing, Plaintiffs disputed the notion that fact discovery must be
completed prior to the taking of Dr. Wing's de bene esse deposition due to the nature ofhis opinions.
Defendant first contends it will be prejudiced because fact discovery is still ongoing and it
will be hindered in its ability to question Dr. Wing regarding his opinions in light of the facts of the
case. Both parties agree that Dr. Wing's opinions are not Plaintiff-specific, but rather address
general harms to communities surrounding hog farms, lessening any prejudice to Defendant due to
fact discovery not being complete. Furthermore, although Defendant contends it would not be very
helpful in this regard, the court notes that the parties have exchanged preliminary discovery,
including fact sheets regarding the individual Plaintiffs, some written discovery in the Discovery
Pool Cases, and Defendant has taken some depositions of individual Plaintiffs. This further
minimizes the potential prejudice to Defendant.
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Defendant next contends it will be prejudiced because it does not have the raw data and
underlying documents supporting Dr. Wing's studies that form the basis of his opinions, which it
sought from Dr. Wing by subpoena. However, at the hearing Defendant's counsel indicated that
after Defendant learned from Plaintiffs' counsel that Dr. Wing believed those documents to be in the
custody and control of UNC, Defendant provided a subpoena for documents to UNC counsel, but
failed to follow-up as to the status of the request, apparently due to Defendant's belief that Plaintiffs'
stated intention not to pursue medical claims would moot the issue. Defendant's counsel also
indicated at the hearing that he contacted UNC after Dr. Wing's deposition subpoena was served to
inquire regarding the status of the documents, but received no definitive answer. Defendant filed
no motion to compel either Dr. Wing or UNC to produce the raw data and other supporting
documents, and any prejudice to Defendant in this regard is, at least in part, of its own making.
Additionally, Plaintiffs' counsel asserted at the hearing that Defendant has the literature forming the
basis of Dr. Wing's opinions and Defendant did not dispute that representation.
Finally, Defendant contends that it will be prejudiced by not having the opportunity to
conduct an expert deposition of Dr. Wing prior to cross-examining him for purposes of trial
testimony. Defendant expresses a legitimate concern regarding the potential prejudice that could
stem from being forced to conduct a trial cross-examination ofPlaintiffs' expert without the benefit
of having first conducted an expert deposition, given the different purposes served by these types of
depositions. Plaintiffs correctly point out that the Federal Rules make no distinction between
discovery and trial preservation depositions. See Fed. R. Civ. P. 30, 32. However, "[t]he Fourth
Circuit, this court, and other courts continue to recognize the distinct role of a de bene esse
deposition to preserve trial testimony and to distinguish it from a deposition taken for the purpose
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of discovery." The Neighbors Law Firm, P.C. v. Highland Capital Mgmt., L.P.,No. 5:09-CV-352-F,
2011 WL 649925, at *2 (E.D.N.C. Feb. 10, 2011) (unpublished) (citing Tatman v. Collins, 938 F.2d
509, 510 (4th Cir. 1991) (recognizing the distinct purpose of de bene esse depositions to preserve
testimony for use attrial); Lucasv. Pactiv Corp., No. 5:08CV79, 2009 WL 5197838, at *4 (W.D.Va.
Dec. 22, 2009) (unpublished) (denying defendant's motion to quash de bene esse depositions and
rejecting defendant's argument that the depositions should have been taken during the discovery
period); Bouygues Telecom, SA. v. Tekelec, Inc., 238 F.R.D. 413, 414 (E.D.N.C. 2006) (noting
distinction between discovery and de bene esse depositions); Local Civil Rule 32.1 (E.D.N.C.)
("Depositions de bene esse may be taken outside of the period of discovery.")). "The obvious
purpose of discovery is to determine the opinions and positions of the opposition's witnesses and
prepare for cross-examination." Griffin v. Foley, 542 F.3d 209, 221 (7th Cir. 2008). Additionally,
in the Tatman case where the Fourth Circuit recognized the lack of distinction between discovery
and de bene esse depositions, the court was concerned with whether a deposition taken during the
discovery period could be used at trial under Rule 32, not whether a de bene esse deposition could
be taken under the terms of the scheduling order. Bouygues Telecom, SA., 238 F.R.D. at 414.
Notwithstanding, the court finds that the potential prejudice to Defendant can be minimized
sufficiently short of prohibiting Dr. Wing's deposition, by allowing Defendant to explore Dr.
Wing's expert opinions through a discovery deposition ofDr. Wing prior to Plaintiffs' de bene esse
deposition. See Griffin, 542 F.3d at 221 ("The obvious purpose of discovery is to determine the
opinions and positions of the opposition's witnesses and prepare for cross-examination. Had there
not been some gap in time between the discovery depositions and the cross-examination of the
[plaintiffs'] experts, [defendant's] attorneys would not have been able to effectively prepare for

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cross-examination."); Polozie v. United States, 835 F. Supp. 68, 72 (D. Conn. 1993) (noting
distinction between an attorney's questioning of an expert for discovery purposes versus crossexamination at trial; "Attorneys presumably know what the purpose of a trial deposition is, and they
will be mindful of the fact that they will not have another chance to develop fully the testimony of
the witness. In cases involving expert testimony this is particularly the case, and the Court must bear
in mind that after taking a discovery deposition the attorney fully expects to examine the expert

witness again at trial.") (emphasis added).
At the hearing, Plaintiffs' counsel indicated that the de bene esse deposition would not go
forward on July 7 due to Dr. Wing's chemotherapy schedule but that Dr. Wing would be available
August 1-3, for four hours at a time, to sit for a deposition. The court will allow Defendant to
conduct an expert discovery deposition of Dr. Wing at that time. Griffin, 542 F.3d at 221 (finding
"reasonable and within his discretion" the magistrate judge's order allowing party to depose
opposing party's expert for discovery purposes followed at a later date by a deposition to be used for
trial purposes). This will allow Defendant additional time to obtain any necessary documents and
to conduct additional fact discovery. If Defendant chooses to depose Dr. Wing, it shall provide the
appropriate notice to Plaintiffs and Dr. Wing by no later than July 14, 2016. Accordingly, although
the court declines to quash the subpoena to Dr. Wing, the court modifies the subpoena pursuant to
Rule 45(d)(3)(A) to allow time for Defendant to take Dr. Wing's expert deposition prior to Plaintiffs
taking Dr. Wing's de bene esse deposition. In the event Defendant declines to take Dr. Wing's
expert deposition during the period of August 1-3, Plaintiffs may conduct the de bene esse
deposition at that time. Alternatively, if Defendant conducts Dr. Wing's expert deposition during
the period of August 1-3, Plaintiffs may take Dr. Wing's de bene esse deposition no earlier than
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August 17, 2016, to allow Defendant time to prepare its cross-examination in light of Dr. Wing's
expert deposition, and Plaintiffs shall provide the appropriate notice of the de bene esse deposition
date to Defendant no later than July 21, 2016.
In sum, the court finds that the circumstances of Dr. Wing's health provide good cause to
allow the taking of his de bene esse deposition on an expedited basis. The court also finds that any
potential prejudice to Defendant from the expedited deposition is minimized by allowing Defendant
to explore Dr. Wing's opinions through an expert deposition prior to the de bene esse deposition and
that proceeding in this manner represents a reasonable balancing of the parties' legitimate competing
interests. Nothing in this order precludes Defendant from raising in a motion in limine objections
regarding the use at trial of Dr. Wing's de bene esse deposition, including in which particular cases
his deposition may be used. See Patterson v. W Carolina Univ., No. 2:12CV3, 2013 WL 1629132,
at *1 (W.D.N.C. Apr. 16, 2013) (unpublished) (allowing the taking of a de bene esse deposition, but
reserving the issue of whether or not the defendant can introduce the deposition at trial for the
District Court to address at trial).
III. CONCLUSION

For the reasons set forth above, Defendant's motion to quash [DE-136] is denied, and the
court alternatively modifies the subpoena in conformity with the above.
SO ORDERED, the _1_ day of July 2016.

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