Gillis et al v. Murphy-Brown, LLC

Filing 230

MEMORANDUM OPINION AND ORDER granting in part and denying in part 99 Motion in Limine; denying 107 Motion for Reconsideration ; granting 108 Motion in Limine to the extent that plaintiffs should not offer any financial evidence unless defendant opens the door to its introduction. Counsel is reminded to read the order in its entirety. Signed by Senior Judge David A. Faber on 11/13/2018. (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 are several motions.

The court’s

rulings on those motions follow:
A.

Defendant’s motion in limine to exclude evidence of
lobbying or other political activities (ECF No.
99).

In the related cases of McKiver v. Murphy-Brown, LLC,
Civil Action No. 7:14-180-BR, McGowan v. Murphy-Brown, LLC, Civil
Action No. 7:14-182-BR, and Artis v. Murphy-Brown, LLC, Civil
Action No. 7:14-237-BR, the court granted similar motions as
newspaper editorial cartoons but denied the motions in all other
respects.

For the same reasons expressed in those earlier cases,

defendant’s motion is GRANTED as to editorial cartoons but DENIED
in all other respects.
Defendant sought exclusion of the documents based upon the
Noerr-Pennington doctrine.

“The Noerr-Pennington doctrine derives

from the Petition Clause of the First Amendment and provides that

`those who petition any department of the government for redress
are generally immune from statutory liability for their
petitioning conduct.’”

Kearney v Foley & Lardner, LLP, 590 F.3d

638, 643-44 (9th Cir. 2009) (quoting Sosa v. DIRECTV, Inc., 437
F.3d 923, 929 (9th Cir. 2006)).

Although, the doctrine emerged in

the antitrust context, the Court has “held that Noerr-Pennington
principles `apply with full force in other statutory contexts’
outside antitrust.”

Id. at 644 (quoting Sosa, 437 F.3d at 930).

Although the Noerr-Pennington doctrine has been extended
beyond the antitrust context, it has not been applied in the
manner in which defendant seeks to do here—-bar otherwise
admissible evidence in a state law private nuisance lawsuit.
Noerr-Pennington doctrine does not operate in this manner.
court explained in a similar context:
Secondarily, New GM’s Eighth Motion in
Limine also seeks to exclude evidence of its
“lobbying” of NHTSA on the theory that such
conduct is “protected under the First Amendment.”
(New GM’s Eighth Mem. 10). More specifically, New
GM contends that such conduct is off limits under
the Noerr-Pennington doctrine, which derives its
name from two antitrust decisions, Eastern
Railroad Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127 (1961), and United
Mine Workers of America v. Pennington, 381 U.S.
657 (1965), but has evolved to stand for the more
general proposition that “lobbying alone cannot
form the basis of liability,” Hamilton v. Accutek, 935 F. Supp. 1307, 1321 (E.D.N.Y. 1996). New
GM’s argument, however, fails for the same reason
its Buckman argument failed: Under the NoerrPennington doctrine, a defendant may not be held
liable based solely on conduct that is protected
by the First Amendment, but that does not mean
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The
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that such conduct is altogether inadmissible or
necessarily lacking in evidentiary value. In fact
the Pennington Court itself acknowledged that
“[i]t would of course still be within the province
of the trial judge to admit this evidence, if he
deemed it probative and not unduly prejudicial,
under the established judicial rule of evidence
that testimony of prior or subsequent
transactions, which for some reason are barred
from forming the basis for a suit, may
nevertheless be introduced if it tends reasonably
to show the purpose and character of the
particular transactions under scrutiny.”
Pennington, 381 U.S. at 670 n.3 (emphasis added)
(internal quotation marks omitted); see also
Hamilton, 935 F. Supp. at 1321 (“A core principle
of the Noerr-Pennington doctrine is that lobbying
alone cannot form the basis of liability, although
such activity may have some evidentiary value.”
(emphasis added)).
At bottom, New GM’s Buckman and NoerrPennington arguments (and its related arguments
under Rule 403 of the Federal Rules of Evidence)
are premised on a concern that a jury could base a
finding of liability on an inappropriate
ground—either a ground that is preempted by
federal law or a ground that is protected by the
First Amendment. In the final analysis, however,
the proper remedy for those concerns is care in
instructing the jury with respect to what it must
find in order to hold New GM liable and, if New GM
requests it, perhaps also curative instructions
making clear to the jury on what it may not base
its verdict. See Brady v. Wal-Mart Stores, Inc.,
531 F.3d 127, 136 (2d Cir. 2008). The proper
remedy is not exclusion of evidence that is
otherwise relevant and admissible in connection
with Plaintiff’s claims.
In re: General Motors LLC Ignition Switch Litig., 14-CV-8176, 14MD-2543 (JMF), 2015 WL 8130449, *2 (S.D.N.Y. Dec. 3, 2015).
Based on the foregoing, it is clear that the evidence
defendant seeks to exclude is not inadmissible under the Noerr-

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Pennington doctrine.

Having reviewed much of that evidence,

however, the court cannot see the relevance of a number of the
documents that plaintiffs may seek to introduce at trial.
Therefore, the motion in limine is denied without prejudice and
defendant may seek the exclusion of those documents on grounds
other than the Noerr-Pennington doctrine.
B.

Defendant’s motion for reconsideration of ruling on
plaintiffs’ motion for partial summary judgment
with regard to defendant’s “Right to Farm Act
Defense” (ECF No. 107).

In the related cases of McKiver v. Murphy-Brown, LLC,
Civil Action No. 7:14-180-BR, McGowan v. Murphy-Brown, LLC, Civil
Action No. 7:14-182-BR, and Artis v. Murphy-Brown, LLC, Civil
Action No. 7:14-237-BR, the court denied similar motions.

For the

same reasons expressed in those earlier cases, defendant’s motion
is DENIED.
C.

Defendant’s motion in limine to exclude misleading
financial evidence (ECF No. 108).

Defendant seeks to exclude the presentation of any
evidence regarding its financial condition during the compensatory
damages phase of this trial.

Defendant also seeks to exclude

financial evidence of any entity other than Sholar Farm, including
its corporate parent and grandparent.
By Order entered October 24, 2018, the court granted
defendant’s motion to bifurcate the issues of liability for and

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the amount of compensatory damages from the issues of liability
for and amount of punitive damages.
Compensatory damages serve a purpose different
from that of punitive damages. The objective of
compensatory damages is to restore the plaintiff
to his original condition or to make the plaintiff
whole. See Bowen v. Fidelity Bank, 209 N.C. 140,
144, 183 S.E. 266, 268 (1936) (“[C]ompensatory
damages are allowed as indemnity to the person who
suffers loss in satisfaction and recompense for
the loss sustained. The purpose of the law is to
place the party as near as may be in the condition
which he would have occupied had he not suffered
the injury complained of.”).
Watson v. Dixon, 532 S.E.2d 175, 177-78 (N.C. 2000).

Therefore,

“[o]rdinarily, a party’s financial ability to respond in damages.
. . is totally irrelvant to issue of liability; and the admission
of evidence tending to establish such ability is held to be
prejudicial, except in cases warranting an award of punitive
damages.”

Harvel’s, Inc. v. Eggleston, 150 S.E.2d 786, 790

(1966); see also Di Frega v. Pugliese, 596 S.E.2d 456, 461 (N.C.
App. 2004) (holding that trial court did not err in excluding
evidence of defendants’ financial status where evidence in case
showed that punitive damages were not warranted).
Plaintiffs argue that evidence of defendant’s financial
status is relevant to their case-in-chief for a number of reasons,
including defendant’s ability to pay for feasible alternatives.
However, the court believes that the prejudicial nature of this
type of evidence substantially outweighs its probative value
unless and until defendant contends that it does not have the
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financial ability to pay for a feasible alternative.

Therefore,

with respect to the compensatory damages trial, the motion in
limine is GRANTED to the extent that plaintiffs should not offer
any financial evidence unless defendant opens the door to its
introduction.

Should defendant do so, counsel should ask the

court to revisit this ruling.

Furthermore, should financial

evidence become admissible, the relevant financial evidence for
the first trial is that pertaining to defendant, Murphy-Brown,
LLC, unless plaintiffs can show that defendant has prohibited them
from developing that evidence solely as to Murphy-Brown.

See,

e.g., Daughtery v. Ocwen Loan Servicing, LLC, No. 16-2243, 701 F.
App’x 246, 258 (4th Cir. Jul. 26, 2017) (permitting introduction
of parent company’s 10-K, which contained a consolidated balance
sheet of parent company and its subsidiaries, as evidence of
defendant’s financial worth where defendant was responsible for
lack of best evidence of its financial worth).
The Clerk is directed to send copies of this Memorandum
Opinion and Order to all counsel of record.
IT IS SO ORDERED this 13th day of November, 2018.
ENTER:
David A. Faber
Senior United States District Judge

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