Gillis et al v. Murphy-Brown, LLC

Filing 217

MEMORANDUM OPINION AND ORDER granting 93 Motion in Limine. Signed by Senior Judge David A. Faber on 11/7/2018. (Edwards, S.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
CASE NO: 7:14-CV-185-BR
ANNJEANETTE GILLIS, et al.,
Plaintiffs,
v.

MEMORANDUM OPINION
AND ORDER

MURPHY-BROWN, LLC d/b/a
SMITHFIELD HOG PRODUCTION
DIVISION,
Defendant.
Pending before the court is defendant’s motion in limine
to exclude evidence pertaining to Missouri litigation matters.
(ECF No. 93).

For reasons expressed more fully below, that motion

is GRANTED as described more fully herein.
Background
In 1999 and 2002, the State of Missouri filed Petitions
against Premium Standard Farms (“PSF”) related to various
environmental problems arising out of PSF’s use of anaerobic
lagoons for waste-handling on swine farms in Missouri.
Nos. 93-5 and 93-7.

See ECF

PSF settled the litigation with the State of

Missouri and entered into Consent Judgments in 1999 and 2004.
id.

See

PSF was acquired by Murphy-Brown LLC (“Murphy-Brown”) in 2007

and Murphy-Brown assumed PSF’s responsibilities under the Consent
Judgments.

In the instant motion, Murphy-Brown seeks to exclude any
evidence related to the Missouri litigation including testimony,
argument, documents, statements, or admissions.

Plaintiffs oppose

the motion, arguing that “[d]efendant claims that there is no odor
problem, and hog operations using lagoons and sprayers do not
cause odor to neighbors, that there are no new technologies that
can assist, and that any that exist are not feasible.

The

substantive terms and provisions associated with the proceedings
in Missouri and the facts regarding the company’s actions, which
are public, are relevant and probative on knowledge and notice, on
the existence of feasible upgrades, and on the subject of
credibility.”

ECF No. 190 at p. 19 in Case No. 7:14-cv-00182-BR.
Analysis

According to Federal Rule of Evidence 401, evidence is
relevant if “it has any tendency to make a fact more or less
probable than it would be without the evidence” and “the fact is
of consequence in determining the action.”

Rule 402 provides that

relevant evidence is admissible unless otherwise stated. Fed. R.
Evid. 402.
The court finds that evidence related to Missouri
litigation regarding hog farming is of questionable relevance to
this private nuisance claim arising out of hog farming operations
in North Carolina.

This is especially true of evidence that

predates Murphy-Brown’s acquisition of PSF in 2007.

2

While there

might be “nuggets” of relevant evidence buried in the documents
related to that litigation--such as alleged feasible alternative
technologies1--that evidence is overwhelmed by the irrelevant
evidence.

In sum, the court is not persuaded that the Missouri

litigation is sufficiently similar to this case such that it is
relevant and, therefore, introduction of such evidence would
unduly prolong this trial because Murphy-Brown would have to
expend significant time exposing that lack of similarity.

See,

e.g., United States v. Hill, 322 F.3d 301, 306 (4th Cir. 2003)
(affirming a trial court’s exclusion of evidence of another
transaction and lawsuit which “would have necessitated an
exhaustive case within a case”); Smith v. E-backgroundchecks.com,
Inc., Civil Action No. 1:13-cv-02658-RGV, 2015 WL 11233453, *2
(N.D. Ga. June 4, 2015) (“Even if plaintiff could demonstrate some
probative value from allegations in other lawsuits, presenting
evidence of these other cases would lead to a series of minitrials that would likely confuse and mislead the jury from the
task at hand of evaluating plaintiff’s claims in this case and
result in a waste of time and judicial resources.”).

As the court noted at the hearing on October 30, 2018,
evidence of alternative technologies can be offered without
relying on the Missouri litigation. For example, plaintiffs
could question Dr. Mike Williams, who was involved with North
Carolina’s Smithfield Agreement, about his knowledge of Next
Generation Technology implemented in Missouri without
highlighting the fact that it arose out of litigation against
PSF.
1

3

In addition, the court finds little merit in plaintiffs’
argument that evidence of the Missouri litigation is relevant to
show defendant’s notice that the Sholar Farm created a nuisance.
“[T]he issue of `notice’ cannot be used by counsel to `bootstrap’
in evidence of other lawsuits.”

Estate of Tobin ex rel. Tobin v.

Smithkline Beecham Pharm., Civil No. 00-CV-0025-Bea, 2001 WL
36102165, *1 (D. Wyo. May 18, 2001) (“Correspondingly, evidence of
other lawsuits cannot be used as a method to compel the defendant
to admit that it has or had notice or knowledge that Paxil was
allegedly dangerous.”).

First, the Missouri litigation was an

enforcement action by the State of Missouri not a private nuisance
action.

Second, Missouri is not North Carolina.

Therefore, just

because PSF’s hog farming operations might have been found to
cause an odor control problem in Missouri does not necessarily
lead to the conclusion that operation of the Sholar Farm
necessarily created a nuisance for the plaintiffs in this case.
See Palmer v. Board of Regents of the University System of
Georgia, 208 F.3d 969, 973 (11th Cir. 2000) (“[W]e do not find any
merit to [plaintiff]’s argument that the district court abused its
discretion in excluding evidence of the existence of the other
lawsuits against [defendant].

The complaints that she sought to

introduce involved different decision-makers, different
departments, and different hiring processes.”).

4

Plaintiffs have also argued that the Missouri litigation
is relevant to the issue of defendant’s credibility.

For example,

in the McGowan case, plaintiffs made much of the fact that Kraig
Westerbeek, Vice President of Environmental Compliance and Support
Operations for Murphy-Brown, claimed to have “never smelled
offensive hog odor over the fence line.”
No. 7:14-cv-00182-BR.

ECF No. 190 at 7 in Case

The court assumes that Mr. Westerbeek was

talking about one of the farms in North Carolina.

Therefore, the

fact that a 2010 Consent Judgment arising out of the Missouri
litigation states that “Odor has also proven to be the most
challenging aspect of not only the Consent Judgment process, but
one of the greatest challenges for Concentrated Animal Feeding
Operations nationwide” does not necessarily call into question
Westerbeek’s credibility regarding whether he himself has smelled
“offensive hog odor” on a farm in North Carolina.

See, e.g.,

Nelson v. City of Chicago, 810 F.3d 1061, 1068 (7th Cir. 2016)
(rejecting trial court’s decision to allow evidence of plaintiff’s
prior arrests where plaintiff “never made any factual statements
that could be contradicted by evidence of his prior arrests.

To

use the example initially posited by the judge, he did not testify
that he `never had any encounter with the police before.’

Nor did

he make any remotely similar claim on the witness stand.”).
In any event, Federal Rule of Evidence 403 allows for the
exclusion of relevant evidence if the “probative value is

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substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.”

The court has

no trouble concluding that admission of the Missouri litigation
would unfairly prejudice Murphy-Brown, confuse the issues in this
case, potentially mislead the jury, and that the probative value
of that evidence is substantially outweighed for those reasons.
The danger of allowing evidence of other lawsuits is obvious--a
jury might be tempted into punishing a defendant for behavior for
which it is not on trial.

See Nelson, 810 F.3d at 1072 (holding

that admission of evidence of other lawsuits was not harmless
error where the evidence of “other lawsuits went to the heart of
the defense theory of the case”); Buonanoma v. Sierra Pacific
Power Co., No. 3:04-cv-0077-LRH-VPC, 2010 WL 3724254, *5 (D. Nev.
Sept. 16, 2010) (“Introducing evidence of other lawsuits against
[defendant] could unfairly bias the jury against SPPC for
discriminatory acts that did not take place in this case and
confuse the jury into thinking it could hold SPPC liable in this
action for alleged wrongs in other actions.”).

A court recently

highlighted the risks involved in admitting evidence of other
litigation:
[Plaintiff] seeks to use the New York litigation
as a sword in the same way that United seeks to
use the Board of Pharmacy proceedings. This the
Court will not permit. The New York litigation
ended in a settlement with no admission of
liability. . . .
The presentation of evidence
regarding that litigation, . . . would create
almost certain prejudice to United, would tend to
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confuse the jury, and would, because United would
have to be given an opportunity to respond to the
allegations, substantially broaden this litigation
resulting in the undue consumption of time on a
completely collateral matter. Evidence of the New
York litigation is therefore of questionable
relevance under Rule 401 and properly excluded
under Rule 403.
IV Solutions, Inc. v. United Healthcare Servs., Inc., No. CV 124887-GAF (MRWx), 2014 WL 5846805, *3 (C.D. Cal. Nov. 12, 2014)
At this juncture and given what the court knows about the
evidence to be presented at trial, the court agrees with defendant
that the Missouri litigation is not relevant to the issues on
trial in this case and that any probative value of that evidence
is substantially outweighed by the danger of unfair prejudice,
would confuse the issues, and mislead the jury.
motion in limine is GRANTED.2

Accordingly, the

However, if defendant opens the

door to the admissibility of the excluded evidence, plaintiffs are
permitted to ask the court to revisit this ruling.

Furthermore,

should plaintiffs believe any of the documents excluded by this
Order to be admissible for reasons not discussed herein,
plaintiffs may seek their admission on those grounds.3

Given the

Plaintiffs are prohibited from discussing, arguing
about, or introducing any testimony or documentary evidence
regarding the Missouri litigation. Defendants did not provide a
list of those documents that it feels are covered by this motion.
Therefore, the only documents specifically excluded by this Order
are documents that arose out of the Missouri litigation or are
specific to that litigation.
2

In order to minimize disruption to the jury, plaintiffs
should bring such a motion to the court’s attention outside the
3

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court’s ruling, it is unnecessary to reach defendant’s argument
under Federal Rule of Evidence 408.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to all counsel of record.
IT IS SO ORDERED this 7th day of November, 2018.
ENTER:
David A. Faber
Senior United States District Judge

presence of the jury.
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