McGowan et al v. Murphy-Brown, LLC

Filing 168

ORDER denying 94 Motion in Limine to preclude fear of testimony or to limit expert fear of testimony. Signed by Senior Judge W. Earl Britt on 5/17/2018. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-182-BR
WOODELL MCGOWAN, et al.,

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Plaintiffs,
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v.
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MURPHY-BROWN, LLC d/b/a
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SMITHFIELD HOG PRODUCTION
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DIVISION,
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Defendant.
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____________________________________)

ORDER

This matter is before the court on defendant’s motion to preclude “fear of” testimony or,
alternatively, to limit expert “fear of” testimony. (DE # 94.) Plaintiffs have filed a response.
(DE # 109.)
Defendant argues that any “fear of” testimony is irrelevant because North Carolina law
does not permit the recovery for fear of future injury or harm as an element of damages for
nuisance. Additionally, defendant contends, even if such testimony is permitted, the court
should prohibit expert testimony on the subject until plaintiffs testify to having such fear,
otherwise defendant will be unfairly prejudiced, the jury will be confused, and time will be
wasted. Plaintiffs oppose defendant’s motion on a number of grounds.
As defendant recognizes, the court has previously addressed plaintiffs’ “fear of” evidence
in ruling on defendant’s motion for partial summary judgment. The court denied that motion,
holding plaintiffs could offer evidence of their fear of disease or adverse health effects in support
of discomfort and annoyance damages, which are recoverable for a nuisance under North
Carolina law. In re NC Swine Farm Nuisance Litig., No. 5:15-CV-00013-BR, 2017 WL

5178038, at *11 (E.D.N.C. Nov. 8, 2017); see also id. at *8-10. Defendant’s request that the
court exclude all evidence of fear of potential injuries would require the court to reconsider its
earlier ruling, which the court declines to do.
As for defendant’s alternative request to prohibit expert testimony about fear of future
injury until a plaintiff testifies s/he has such fear, the court rejects it as well. Other than Dr.
Steve Wing (who is deceased and whose video deposition was taken), the court does not know
precisely what any expert might say at trial about fear of adverse health effects. Moreover, the
expert testimony to which defendant cites does not justify requiring plaintiffs to first testify at
trial about any fear of future injury s/he might have before an expert may testify about that fear.
Defendant cites to Dr. Wing’s testimony regarding the scientific basis of concerns of
neighbors of swine facilities about staph and water contamination. (See Def.’s Mem., DE # 95,
at 2 (“[D]uring his trial deposition, Dr. Wing testified that it would be ‘reasonable’ for neighbors
of swine farms to be ‘concerned’ about future health issues.” (citing Wing Dep., DE # 95-3, at
4).) However, plaintiffs have not designated (or counter-designated for completeness) that
portion of Dr. Wing’s testimony to be used at trial. (See Proposed Pretrial Order, DE # 102, at
162-70.) Obviously, because the jury will not hear that particular testimony, prejudice to
defendant, confusion, and wasted time will not result.
Defendant also cites to the testimony of Dr. Shane Rogers and Dr. James Merchant. Dr.
Rogers testified at the trial in a related case, McKiver v. Murphy-Brown, LLC, No. 7:14-CV180-BR. On cross-examination in response to a question about damage to the water at
individual’s homes, Dr. Rogers stated, “I don’t remember if it’s in this case or another—there
was one report I had read that there was concern that perhaps some nutrients had gotten into the
water, into the groundwater at one of the sites.” (4/5/18 Rough Tr., DE # 95-2, at 2.) Defendant

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characterizes this testimony as “allud[ing] to ‘concerns’ that local residents would have
regarding groundwater contamination caused by swine farms.” (Def.’s Mem., DE # 95, at 2
(citation omitted).) Dr. Merchant did not testify at the McKiver trial. Defendant points to his
deposition testimony. Dr. Merchant, referring to his expert report, states, “There is, I think, the
basis in the literature and certainly based upon their own personal experience reasons for them
[i.e., plaintiffs] to be concerned or even fearful that these exposures may adversely affect their
health into the future.” (Merchant Dep., DE # 83-2, at 43; see also id. at 42.)
If Drs. Rogers and Merchant were to testify similarly at the instant trial, and the plaintiffs
did not subsequently testify s/he had such concerns or fears, prejudice to defendant, jury
confusion, and wasted time will not result. Each expert qualified or limited his opinion on the
subject. (See 4/15/18 Rough Tr., DE # 95-2, at 2 (“I don’t remember if it’s in this case or
another—there was one report I had read that there was concern . . . .) (emphasis added);
Merchant Report, DE # 83-1, at 51 (“a reasonable scientifically-supported basis exists for the
health-related fears and concerns that have been testified to by various of the Plaintiffs in this
case”) (“to the extent Plaintiffs are concerned or fearful of breathing the foul odors from the hog
operations . . . , they have a scientifically justified reason for concern”) (emphases added).) The
court presumes jurors will understand that testimony, along with plaintiffs’ testimony and the
court’s instructions on the law, and thus would not find defendant “liable for injuries that the
[plaintiffs] are not claiming,” (Def.’s Mem., DE # 95, at 6).
For the foregoing reasons, defendant’s motion to preclude “fear of” testimony or to limit

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expert “fear of” testimony is DENIED.
This 17 May 2018.

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W. Earl Britt
Senior U.S. District Judge

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