McGowan et al v. Murphy-Brown, LLC
Filing
472
ORDER denying 332 Motion to Alter or Amend Judgment or, in the Alternative, for Relief from Judgment regarding 326 Judgment; denying 334 Motion for New Trial; denying 336 Motion for Judgment as a Matter of Law. Signed by Senior Judge W. Earl Britt on 12/26/2018. (Edwards, S.)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-00182-BR
WOODELL MCGOWAN, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
MURPHY-BROWN, LLC, d/b/a
)
SMITHFIELD HOG PRODUCTION
)
DIVISION,
)
)
Defendant.
)
____________________________________)
ORDER
This matter is before the court on the parties’ post-trial motions following the entry of
final judgment on the jury verdict awarding two of the nineteen plaintiffs in this case
compensatory and punitive damages. (DE ## 332, 334, 336, 340.)
I. DEFENDANT’S MOTION TO ALTER OR AMEND
Pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure, defendant
requests that the court vacate the judgment. “A Rule 59(e) motion may only be granted in three
situations: ‘(1) to accommodate an intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.’
It is an extraordinary remedy that should be applied sparingly.” Mayfield v. Nat’l Ass’n for
Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (citations omitted). Because
defendant filed its motion within 28 days of entry of the judgment, the court considers it only
under this standard, rather than under the Rule 60(b) standard. See Robinson v. Wix Filtration
Corp., 599 F.3d 403, 412 (4th Cir. 2010) (“We have squarely held, however, that a motion filed
under both Rule 59(e) and Rule 60(b) should be analyzed only under Rule 59(e) if it was filed no
later than [28] days after entry of the adverse judgment and seeks to correct that judgment.”
(citations omitted)).
Defendant argues that the judgment should be vacated (1) based on post-trial
amendments to North Carolina’s Right to Farm Act (“RFA”) and (2) for the failure to join Joey
Carter, the individual who owns the subject farm, as a necessary and indispensable party.
Defendant filed a similar motion on the same grounds in the related case of McKiver v. MurphyBrown, LLC, No. 7:14-CV-180-BR, and for the reasons stated in the court’s 17 December 2018
order, see id. (DE # 346), the motion will be denied.
II. DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW
Based on Rule 50(b) of the Federal Rules of Civil Procedure, defendant renews its earlier
motions for judgment as a matter of law. In considering a Rule 50(b) motion, “the question is
whether a jury, viewing the evidence in the light most favorable to [the non-movant], could have
properly reached the conclusion reached by th[e] jury. If reasonable minds could differ about the
result in this case, [the court] must affirm the jury’s verdict.” Bryant v. Aiken Reg’l Med. Ctrs.
Inc., 333 F.3d 536, 543 (4th Cir. 2003) (citation and internal quotation marks omitted).
Defendant argues that it is entitled to judgment as a matter of law because (1) Joey Carter
is an indispensable party; (2) plaintiffs presented no evidence to support compensatory damages;
and (3) plaintiffs failed to present sufficient evidence to support punitive damages. As for the
first ground, defendant relies on its motion to alter or amend the judgment. As addressed above,
for the reasons stated in McKiver v. Murphy-Brown, LLC, No. 7:14-CV-180-BR (DE # 346), the
court concludes Carter is not an indispensable party.
Regarding the issue of compensatory damages, defendant relies on a pre-trial, 2017
amendment to the RFA. According to defendant, the amendment is clarifying and remedial. As
2
such, defendant maintains, the amendment applies retroactively to foreclose plaintiffs’ recovery
of annoyance damages and limits their recovery to diminished rental value, which damages
plaintiffs waived. Plaintiffs contend that the amendment is a substantive change to the law and
therefore applies prospectively to causes of action brought after the effective date of 11 May
2017. Because plaintiffs brought this action prior to that time, they contend the amendment does
not apply to limit their claimed damages.
In construing a statute with reference to an amendment it is presumed that the
legislature intended either (a) to change the substance of the original act, or (b) to
clarify the meaning of it. A clarifying amendment, unlike an altering amendment,
is one that does not change the substance of the law but instead gives further
insight into the way in which the legislature intended the law to apply from its
original enactment. As a result, in addition to applying to all cases brought after
their effective dates, such amendments apply to all cases pending before the
courts when the amendment is adopted, regardless of whether the underlying
claim arose before or after the effective date of the amendment.
Ray v. N.C. Dep’t of Transp., 727 S.E.2d 675, 681 (N.C. 2012) (citations and internal quotation
marks omitted). In contrast, if the amendment is altering, its effective date controls. Id. at 682.
“To determine whether the amendment clarifies the prior law or alters it requires a careful
comparison of the original and amended statutes. If the statute initially fails expressly to address
a particular point but addresses it after the amendment, the amendment is more likely to be
clarifying than altering.” Id. (citations and internal quotation marks omitted). “Where, however,
the legislature alters an unambiguous statute, it is presumed that the legislature intended to
change the law.” Tucker Auto-Mation of N.C., LLC v. Russell Rutledge & Rutledge
Commercial, LLC, No. 1:15-CV-893, 2017 WL 2930926, at *8 (M.D.N.C. July 10, 2017) (citing
Childers v. Parker’s, Inc., 162 S.E.2d 481, 484 (N.C. 1968)).
Prior to 2017, the RFA did not contain a provision addressing compensatory damages.
Rather, the common law applied. Under the common law, as previously construed by this court,
3
annoyance and discomfort damages, which plaintiffs here allege, may be recovered in a private
nuisance action. See In re NC Swine Farm Nuisance Litig., No. 5:15-CV-13-BR (DE # 476, at
16-20). In 2017, the North Carolina General Assembly enacted “An Act to Clarify the Remedies
Available in Private Nuisance Actions Against Agricultural and Forestry Operations,” thereby
limiting “compensatory damages that may be awarded to a plaintiff for a private nuisance action
where the alleged nuisance emanated from an agricultural or forestry operation” to the reduction
in fair market value for a permanent nuisance and to diminution of fair rental value for a
temporary nuisance. 2017-11 N.C. Sess. Laws 1 (May 11, 2017) (codified at N.C. Gen. Stat. §
106-702(a)).
This amendment to the RFA changed the law. First, it did not codify the common law,
under which, as noted, a party could recover annoyance and discomfort damages for a private
nuisance. Cf. Ray, 727 S.E.2d at 682-83 (recognizing that the legislature’s codification of the
common law in “virtually the same manner” suggests the amendment is clarifying). Second,
although the amending act’s title characterizes the act as one “to clarify,” the legislature
nonetheless expressed its intent that the amendment apply prospectively. See 2017-11 N.C.
Sess. Laws 1 (May 11, 2017) (“This act is effective when it becomes law and applies to causes of
action commenced or brought on or after that date.”). Third, the amendment did not fill in a gap
in the law. There was no gap and nothing to clarify.
Nor is the amendment remedial. A remedial statute is one “which do[es] not create new
or take away vested rights, but only operate[s] in furtherance of the remedy or confirmation of
rights already existing,” Smith v. Mercer, 172 S.E.2d 489, 495 (N.C. 1970) (citation omitted),
and thus “is presumed to operate retroactively,” Bailey v. State, 526 S.E.2d 657, 662 (N.C. 2000)
(citation omitted). Because the amendment restricts the compensatory damages that a plaintiff
4
could recover under the common law for a private nuisance, it applies prospectively. See Rhyne
v. K-Mart Corp., 594 S.E.2d 1, 12 (2004) (“A right to sue for an injury is a right of action; it is a
thing in action, and is property.” (citation omitted)); Williams v. Atl. Coast Line R.R., 69 S.E.
402, 403 (N.C. 1910) (“[T]he word ‘property’ . . . includes the value of the injury involved in
the litigation.” (citation omitted)).
In sum, the 2017 amendment operates to alter the compensatory damages recoverable for
a private nuisance emanating from an agricultural or forestry operation, and the effective date
controls. Because plaintiffs brought this action prior to that time, the amendment does not apply
to limit the compensatory damages they may recover.
Lastly, defendant contends it is entitled to judgment as a matter of law because plaintiffs
failed to present sufficient evidence to support punitive damages. Considering the evidence
developed at trial in the light most favorable to plaintiffs, a reasonable jury could have found
defendant liable for punitive damages.
The court will deny defendant’s motion for judgment as a matter of law.
III. DEFENDANT’S MOTION FOR A NEW TRIAL
Defendant moves for a new trial under Rule 59(a) of the Federal Rules of Civil
Procedure. “In considering a motion for a new trial, a trial judge may weigh the evidence and
consider the credibility of witnesses, and if he finds the verdict is against the clear weight of the
evidence, is based on false evidence or will result in a miscarriage of justice, he must set aside
the verdict, even if supported by substantial evidence, and grant a new trial.” King v. McMillan,
594 F.3d 301, 314 (4th Cir. 2010) (citation and internal quotation marks omitted).
Defendant asks the court to revisit a number of its prior rulings, covering pretrial crossmotions for summary judgment through jury instructions. The court declines to disturb these
5
rulings. The only ground defendant raises that merits a brief discussion is the court’s denial of
defendant’s motions for a mistrial.
Defendant first challenges the denial of its motions (initial and renewed) for a mistrial
based on juror misconduct, specifically “unsanctioned jury research.” (Def.’s Br., DE # 335, at
20.) Defendant argues that the presumption of prejudice set forth in Remmer v. United States,
347 U.S. 227 (1955), applies, plaintiffs cannot rebut it, and a new trial is warranted.
In Remmer, the Supreme Court held that a rebuttable presumption of prejudice
arose from a third party’s unauthorized communication with a juror during the
trial. In announcing this rule, the Court stated that any private communication,
contact, or tampering, directly or indirectly, with a juror during a trial about the
matter pending before the jury is, for obvious reasons, deemed presumptively
prejudicial. However, the Court cautioned that this presumption of prejudice did
not establish a per se requirement of a new trial. The Court stated that the
presumption is not conclusive, but the burden rests heavily upon the Government
to establish, after notice to and hearing of the defendant, that such contact with the
juror was harmless to the defendant.
United States v. Lawson, 677 F.3d 629, 641 (4th Cir. 2012) (citations, alterations, footnote, and
internal quotation marks omitted). The Fourth Circuit has applied this presumption to a juror’s
unauthorized use of internet research, see id. at 644-46 (holding a juror’s unauthorized use of
Wikipedia during deliberations to learn the definition of an element of the crimes with which the
defendant was charged created a rebuttable presumption of prejudice), as well as to extrajudicial
juror communications in civil cases, see Stephens v. S. Atl. Canners, Inc., 848 F.2d 484, 487-88
(4th Cir. 1998) (applying presumption of prejudice where altered exhibits were submitted to the
jury); Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1537 & n.9 (4th Cir. 1986) (applying a
presumption of prejudice to a non-juror’s biased remarks to the entire jury). The court assumes,
without deciding, the presumption of prejudice applies here.
The issue then is whether the presumption has been rebutted. To do so, the prevailing
party must “establish[] the lack of a reasonable possibility that the jury verdict’s was influenced
6
by an improper communication.” Stephens, 848 F.2d at 488 (citation and internal quotation
marks omitted). In determining this issue, the court “consider[s] all of the competent evidence
objectively in light of common experience, and exercise[s] its reasoned discretion.” Haley, 802
F.2d at 1537 n.11.
The evidence of record in this case shows that, about halfway through the trial, a juror
informed court personnel that another juror had conducted research about matters related to the
case and relayed that information to other jurors. (6/13/18 Tr., DE # 302, at 4.) Immediately
upon learning that fact, the court notified counsel for both sides and, after receiving input and
consent from counsel, questioned the juror who initially reported the issue.1 (Id. at 4-14.) The
juror stated that in the past week one or more jurors had relayed to other jurors information
obtained from the Internet about the location of the law firm of plaintiffs’ lead counsel; the
length of the prior trial in a related case; the possible indictment of an individual who performed
work on the subject farm and who was referred to during the trial; and possible legislation that
may negatively impact future, similar cases. (Id. at 9-14.)
The court then individually questioned the other jurors and the initial juror again, all in
the presence of counsel. (Id. at 19-22, 24-50, 52-56.) The court received conflicting information
about whether any juror had conducted research on the Internet and whether any jurors had
learned from another juror outside information concerning the case. No juror admitted to
conducting outside research. Jurors who acknowledged hearing some outside information from
another juror confirmed to the court that s/he had not heard anything that would interfere with his
or her ability to remain fair and impartial.
Counsel subsequently reviewed the rough draft of the transcript of that questioning. (See 6/13/18 Tr., DE # 302, at
17-18.)
1
7
After questioning all jurors, the court sought counsel’s input about what, if anything
further, to do. (Id. at 50-52, 57-58.) Defendant moved for a mistrial, which plaintiffs opposed.
(Id. at 59-74.) The court denied the motion, placing primary weight on the jurors’ assurances
that they could remain fair and impartial. (Id. at 74-75.) The court gave counsel the opportunity
to move to disqualify a particular juror, and counsel declined. (Id. at 75-76.) From that point,
the court reminded the jury just prior to overnight recesses of its instructions at the beginning of
the case to refrain from discussing the case with others and from obtaining information about the
case from sources outside the courtroom. (See, e.g., id. at 177-79; 6/15/18 Tr., DE # 309, at 18586; 6/20/18 Tr., DE # 289, at 206; 6/21/18 Tr., DE # 290, at 198-99.) The court reiterated these
instructions in its closing instructions. (See 6/26/18 Tr., DE # 291, at 20-21.)
Considering all these circumstances, the court concludes there is not a reasonable
possibility that the jury verdict’s was influenced by improper communications. Importantly, the
outside information that certain jurors recalled as having been relayed did not bear directly on
any issue in the case. Furthermore, those few jurors who recalled hearing outside information
were able to recount few details, meaning they did not consider the information particularly
significant, and they assured the court that they could remain fair and impartial. The timing of
when the court became aware of the juror misconduct also weighs in favor of concluding the
verdict was not improperly influenced. The court learned of the misconduct well in advance of
jury deliberations and thus was able to cure any potential prejudice by its repeated instructions
prior to overnight recesses, see Lawson, 677 F.3d at 646 n.21 (recognizing that there may be
“situations in which misconduct is discovered before a verdict is reached, and the district court
appropriately acts to alleviate the potential for prejudice”), which instructions the court presumes
the jury followed, see Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 501 (4th Cir. 2001)
8
(“‘[W]hile it may not always be simple for the members of a jury to obey’ a curative instruction,
there is an ‘almost invariable assumption of the law that jurors follow their instructions. . . .’”
(quoting Richardson v. Marsh, 481 U.S. 200, 206-07 (1987)). In sum, the court is satisfied that
the jurors acted fairly and impartially in reaching their verdict, irrespective of what some of the
jurors may have heard from another juror.
Defendant also challenges the denial of its motion for mistrial based on certain
statements plaintiffs’ counsel made during closing and rebuttal arguments. “A new trial is
required on the basis of attorney misconduct only when a miscarriage of justice would otherwise
result.” Prichard v. Kurucz, 22 F. App’x 122, 125 (4th Cir. 2001) (citing Gearin v. Wal–Mart
Stores, Inc., 53 F.3d 216, 219 (8th Cir. 1995) (per curiam)). Defendant argues that plaintiffs’
counsel improperly referenced executive compensation as a measure of compensatory damages
several times in his arguments, irreparably prejudicing it.
At the end of his closing argument, plaintiffs’ counsel stated, “[W]hen you talk about
compensation as opposed to punitive damages, . . . there’s evidence of the way that Smithfield
compensates themselves.” (6/25/18 Tr., DE # 335-27, at 58:17-20.) After the court overruled
defendant’s objection to that statement, he pointed out the total compensation paid to four
executives and argued that in considering compensation, the jury should consider that executive
compensation. (Id. at 58:24-59:2.)
Later, during plaintiffs’ rebuttal, the court sustained defendant’s contemporaneous
objection to counsel’s reference to executive compensation in the context of compensatory
damages and immediately counsel then changed his argument to address punitive damages. (Id.
at 140:3-141:19.) Shortly thereafter, counsel started to reference again executive compensation.
Defendant objected and the court instructed counsel to make clear the damages about which he
9
was talking. (Id. at 141:25-142:4.) Counsel responded, “When we’re talking about punitive
damages and what the defendant can afford . . . . Look at their corporate report.” (Id. at 142:57.)
After arguments concluded, yet before the court instructed the jury, defendant filed its
motion for mistrial based on counsel’s purportedly improper arguments regarding executive
compensation. (DE # 260.) Alternatively, defendant requested that the court give a curative
instruction. (Id.) The court denied the motion for mistrial but allowed defendant’s alternative
request, (6/26/18 Tr., DE # 291, at 2), and included in the jury instructions the very instruction
defendant requested: “You have heard evidence regarding the compensation of various
employees of the defendant and other companies. You may not consider this evidence in
determining the amount of compensatory damages, if any, to award to any individual plaintiff,”
(id. at 13).
The court presumes the jury followed this instruction. See Nichols, 251 F.3d at 501.
Considering collectively plaintiffs’ counsel’s arguments about executive compensation,
particularly in light of the court’s limiting instruction about executive compensation with its
specific reference to compensatory damages, and the amount of compensatory damages the jury
awarded, the court concludes that a miscarriage of justice would not result absent a new trial.
The court declines to order a new trial on any ground asserted.
IV. PLAINTIFFS’ MOTION TO AMEND
Plaintiffs move to amend the judgment under Rule 59(e) of the Federal Rules of Civil
Procedure.2 Specifically, they request that the court set aside its reduction of the jury’s punitive
In the motion itself, plaintiffs cite only to Rule 60(b). In their memorandum in support, however, they cite to Rules
59(e) and 60(b). Because plaintiffs filed their motion within 28 days of the entry of the judgment, the court
considers it only under the Rule 59(e) standard, see Robinson, 599 F.3d at 412, set forth above.
2
10
damages awards on the ground that North Carolina’s statutory punitive damages cap is
unconstitutional as applied. The court has previously considered the arguments plaintiffs raise
and stands by its earlier decision reducing the punitive damages awards in this case. (DE # 323.)
V. CONCLUSION
For the foregoing reasons, defendant’s motions to alter or amend the judgment, for
judgment as a matter of law, and for a new trial are DENIED. Plaintiff’s motion to amend the
judgment is DENIED.
This 26 December 2018.
__________________________________
W. Earl Britt
Senior U.S. District Judge
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?