Gillis et al v. Murphy-Brown, LLC

Filing 246

ORDER granting in part and denying in part 242 Motion to Clarify Objections to Deposition Designations of Kraig Westerbeek and Exclude His Videotaped Testimony. Signed by Senior Judge David A. Faber on 11/19/2018. (Herrmann, L.)

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 to clarify
its objections to the deposition designations of Kraig Westerbeek
and exclude his videotaped testimony.

(ECF No. 242).

have filed a response in opposition to that motion.
244).

Plaintiffs

(ECF No.

The court also has before it the objections to Mr.

Westerbeek’s deposition testimony contained in the Amended
Pretrial Order.

(ECF No. 198).

Plaintiffs object that the new objections are untimely.1
Plaintiffs also argue that Westerbeek’s testimony goes to the
reasonableness of Murphy-Brown’s actions and that, therefore, it

The court notes that many of the new objections are
not really “new” at all. Murphy-Brown merely offers additional
reasons, based upon various court rulings, to exclude deposition
testimony that it has already sought to exclude for the reasons
expressed in the Amended Pretrial Order.
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is relevant in determining whether Murphy-Brown’s actions have
created a private nuisance.

Specifically, plaintiffs argue:

Moreover, Westerbeek systematically denied
and disputed the contents of every study, yet
could point to no studies to the contrary. In a
Rule 30(b)(6) corporate deposition, this was the
official position under oath of the world’s
largest hog producer – that the peer-review
process was meaningless and the study findings
were always wrong. And, the company took this
position without making any effort to perform its
own studies to refute those that were published.
This testimony goes to the issue of
reasonableness. The fact that the company kept
copies of the studies historically, as they were
being published, is a material fact and for the
jury to consider. Likewise, the fact that the
company disputes all of them, and yet points to no
publications to the contrary nor has funded any
research on its own, is relevant vis-à-vis the
reasonableness of its conduct.
ECF No. 244 at p.3.
By Memorandum Opinion and Order entered on November 6,
2018, the court granted defendant’s motion in limine to exclude
evidence of insufficiently similar studies, articles, and other
acts.

See ECF No. 213.

In so doing, the court highlighted the

following:
•

“none of the studies or documents involve[d] the
Sholar Farm or Murphy-Brown’s activities in
connection with that farm, or even farms that house
the same number of swine, with the same waste
management, barn design, land application
technologies, and mortality system as the Sholar
Farm.”

•

“none of the documents involve the same plaintiffs
or individuals that are similarly situated
geographically.”

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•

“none of the articles were written within the last
10 years.”

Id. at p.3.
Most of the studies and articles about which Westerbeek is
questioned in his deposition are the same studies and articles
that defendant sought to exclude in its motion.
115-5.

See ECF No. No.

Therefore, based upon the court’s Order of November 6,

2018, these studies and/or articles are excluded and it would be
improper to introduce them through Westerbeek’s deposition
testimony.

Furthermore, any probative value of that evidence is

substantially outweighed by the danger of unfair prejudice to
Murphy-Brown.

Nothing contained in Westerbeek’s deposition

testimony does anything to alleviate the concerns that led the
court to exclude the evidence in the first place.2
The court also granted defendant’s motions in limine to
exclude evidence related to Chinese ownership and worker-related
health evidence.

See ECF Nos. 225 and 223.

That evidence remains

irrelevant to the issues in this trial and to the extent that
Westerbeek’s deposition testimony touches on these subjects, the
court has sustained defendant’s objections.

The court is cognizant of plaintiffs’ position that
defendant opened the door for the admission of these scientific
studies in its opening statement. See ECF No. 244 at n.5.
Should plaintiffs believe that defendant does so during trial,
they may bring it to the court’s attention and the court may
allow them to present the excluded deposition testimony during
rebuttal.
2

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Finally, the court finds that much of Westerbeek’s
deposition testimony should be excluded because it is not relevant
to this case because respondeat superior liability and punitive
damages are not at issue.
Based upon the foregoing, the motion to clarify is GRANTED
in part and DENIED in part.

Accordingly, the parties are

permitted to play the following excerpts from Mr. Westerbeek’s
testimony and any objections to these designations are OVERRULED.
7:2-13

35:8-14

250:14-251:1

9:2-6

40:20-41:17

252:22-253:24

14:6-25

196:16-22

263:2-264:9

17:3-11

227:24-231:1

290:13-19

20:8-12 start

239:7-19

with “Now”
20:21-25

292:15-293:6
240:4-241:20 start
with “if”

21:4-7

243:8-15 start with
“I’m”

21:15-20

244:24-245:25

25:14-16

247:1-10

As for any designations that are not listed, the
objections to their admissibility are SUSTAINED.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to all counsel of record.

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IT IS SO ORDERED this 19th day of November, 2018.
ENTER:
David A. Faber
Senior United States District Judge

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