McKiver et al v. Murphy-Brown, LLC

Filing 198

ORDER denying #178 Motion in Limine for jury view. Signed by Senior Judge W. Earl Britt on 4/2/2018. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-180-BR
JOYCE MCKIVER, et al.,

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Plaintiffs,
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v.
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MURPHY-BROWN LLC,
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Defendant.
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____________________________________)

ORDER

This matter is before the court on defendant’s motion for jury view. (DE # 178.)
Plaintiffs have filed a response in opposition, (DE # 189), to which defendant has filed a reply,
(DE # 196).
Defendant requests that the jury be permitted to view plaintiffs’ properties at issue
because none of the evidence in the case can provide the jurors with an adequate representation
of the level or severity of the odor alleged and because the most effective way for the jurors to
understand the nature of the community is to visit the area. Plaintiffs argue that a jury view is
inappropriate as the odor is episodic, defendant has altered the conditions of the subject hog
operation, other evidence will sufficiently inform the jury, and delay and inconvenience would
result.
Although the United States Court of Appeals for the Fourth Circuit has not
so held, several circuits have held and the prevailing view is that, “a federal court,
exercising its inherent powers, may allow a jury in either a civil or a criminal case
to view places or objects outside the courtroom.” Clemente v. Carnicon–Puerto
Rico Management Assocs., L.C., 52 F.3d 383, 385 (1st Cir. 1995), overruled on
other grounds by United States v. Gray, 199 F.3d 547, 550 (1st Cir. 1999); see
also Kelley v. Wegman's Food Markets, Inc., 98 F. App'x 102, 104–05 (3d Cir.
2004); United States v. Triplett, 195 F.3d 990, 999 (8th Cir . 1999); United States
v. Moonda, 347 F. App'x 192, 201 (6th Cir. 2009). Further, a district court's

decision to disallow a jury view “is highly discretionary.” Triplett, 195 F.3d at
999; see also Moonda, 347 F. App’x at 201; Kelley, 98 F. App’x at 104–105.
Based on this discretion, a district court may deny a party’s request
for a jury view if the court believes it would be “time consuming, difficult
to control, and . . . [un]necessary in order for the jury to fully appreciate
the case.” Kelley, 98 F. App’ x at 105. Further, a court may deny a party’s
request for a jury view where the other evidence available is sufficient
otherwise without the view. Id. (upholding denial of a jury view where the
district court had allowed numerous photographs and reports and relevant
testimony into evidence); United States v. Passos–Paternina, 918 F.2d
979, 986 (1st Cir. 1990) (denying request for a jury view of a ship where
there was “sufficient testimonial evidence about the vessel”); United
States v. Culpepper, 834 F.2d 879, 883 (10th Cir. 1987) (upholding the
district court’s denial of a jury view where the evidence included
photographs from the day after the events in question occurred); Triplett,
195 F.3d at 999 (upholding the denial of a jury view where the trial
evidence included photographs and diagrams of the sites of the
defendant’s arrests in addition to testimony concerning the circumstances
and conditions at those locations at the relevant times); Hametner v.
Villena, 361 F.2d 445, 446 (9th Cir. 1966) (upholding denial where the
evidence included photographs and a surveyor’s diagram of the scene, and
the requested jury view, “with its attendant delay and inconvenience, was
unnecessary and unwarranted”).
Jones v. Consol. Coal Co., No. 1:13CV11, 2014 WL 1091214, at *1-2 (N.D.W. Va. Mar. 19,
2014) (alteration and omission in original); see also Gunther v. E.I. Du Pont De Nemours & Co.,
255 F.2d 710, 716 (4th Cir. 1958) (“The propriety of sending the jurors to view the property was
a question that lay within the sound discretion of the district judge[.]”).
The court finds a jury view is not justified under the circumstances. The primary reason
is the conditions at plaintiffs’ properties cannot be duplicated on any given day. At best, a jury
view would be limited in time. Plaintiffs’ odor and other complaints, of course, cover a much
longer period. Conditions when jurors visit would not necessarily be substantially similar to
what plaintiffs experienced at a given time. Furthermore, other evidence, particularly testimony
and photographs, will adequately illustrate the conditions at plaintiffs’ properties and the
surrounding area. In short, a jury view would not be helpful to the jury to decide issues in the

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case. In addition, because the plaintiffs’ properties are approximately 90 miles from Raleigh, the
place of trial, a jury view would cause undue delay and inconvenience to what is expected to be a
lengthy trial.
Defendant’s motion for jury view is DENIED.
This 2 April 2018.

__________________________________

W. Earl Britt
Senior U.S. District Judge

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