Gillis et al v. Murphy-Brown, LLC

Filing 252

MEMORANDUM OPINION AND ORDER denying 221 Motion to Exclude Evidence Regarding Remedial Measures Implicated by Defendant's October 25, 2018 Press Release, to Strike Fourth Amended Sholar Fact Sheet, and for Sanctions. Signed by Senior Judge David A. Faber on 11/28/2018. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
CASE No. 7:14-cv-000185-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 plaintiffs’ Motion to Exclude
Evidence Regarding Remedial Measures Implicated by Defendant’s
October 25, 2018 Press Release, to Strike Fourth Amended Sholar
Fact Sheet, and For Sanctions. (ECF No. 221).

For the reasons

that follow, plaintiffs’ motion is DENIED.
First, regarding the evidence relating to the defendant’s
October 25, 2018 press release, the plaintiffs argue that the
alleged “subsequent remedial measures” taken by the defendant
are inadmissible.

Specifically, the plaintiffs argue that the

defendant did not timely disclose this evidence, and thus, these
recent developments constitute an unfair surprise.

(See id.).

The recent developments allegedly undertaken by the defendant
include: (1) changes to the trucking schedule, taken into effect
the end of July 2018; (2) installation of a refrigerated dead
box on the Sholar Farm on approximately July 9, 2018; (3)

adoption of low trajectory land application methods on the
Sholar Farm, which occurred on August 9, 2018; (4) installation
of a misting system that applies “Atmospheric Odor Control V2”
on all five barns on the Sholar Farm in October of 2018; and (5)
Smithfield Foods, Inc.’s October 25, 2018 announcement of
planned commitment to reduce greenhouse gases by 25% by 2025.
In response to the plaintiffs’ motion, the defendant argues
that the plaintiffs did in fact have notice of the recent
changes implemented on the Sholar Farm.
2).

(See ECF No. 234 at p.

Regarding the defendant’s change in the trucking schedule,

the defendant argues that if the trucks are in fact as
disruptive as the plaintiffs allege them to be, the plaintiffs
would have noticed the trucks ceasing to operate during evening
hours.

ECF No. 234 at p. 3.

Defendant offers a similar notice

argument relating to their use of refrigerated dead boxes.

In

light of the plaintiffs’ allegation that the dead boxes are
“left out in the open often in plain view,” the defendant argues
that the plaintiffs would have seen the new refrigerated dead
box.

See id.

Concerning Smithfield’s alleged initiative of

reducing greenhouse gas emissions, the defendant argues that
plaintiffs had notice of Smithfield’s emission reduction goals
through testimonial evidence at prior trials.

See id.

Finally,

defendant argues that, considering this court found that the
relevant claim period for potential damages ends at the time of
2

the verdict, the defendant should be allowed to introduce this
evidence, as these new measures were implemented even prior to
the date of the trial commencing. See id. at p. 4.
Of importance here, Rule 26(e)(1)(a) of the Federal Rules
of Civil Procedure provides that parties have a duty to
supplement written discovery responses “in a timely manner if
the party learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the
other parties during the discovery process or in writing[.]”

In

relevant part, Rule 37 of the Federal Rules of Civil Procedure
provides that, “[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party
is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.”
Thus, the language of Rule 37(c)(1) has two exceptions to
the general rule excluding evidence that a party seeks to offer
but has failed to properly disclose: (1) when the failure to
disclose is “substantially justified,” and (2) when the
nondisclosure is “harmless.”

District courts within the Fourth

Circuit have made determinations of whether the failure to
disclose evidence is “substantially justified” or “harmless”
based upon an analysis of the following factors: (1) the level
3

of surprise to the party against whom the evidence is offered;
(2) the ability of the party to cure that surprise; (3) the
extent to which allowing the evidence would disrupt the trial;
(4) the explanation for the party’s failure to identify the
evidence before trial; and (5) the importance of the evidence.
See i.e., S. States Rack and Fixture, Inc. v. Sherwin-Williams
Co., 318 F.3d 592, 596 (4th Cir. 2003) (citing Burlington Ins.
Co. v. Shipp, 215 F.3d 1317, 2000 WL 620307, at *4 (4th Cir. May
15, 2000) (per curiam) (unpublished table decision)).
Here, regarding the first and fourth factors, the court is
persuaded by the defendant’s notice argument and finds that the
plaintiffs had sufficient notice of the mitigating measures
taken by the defendant, and thus, the defendant’s recent
measures do not unfairly surprise the plaintiffs.

But see, S.

States Rack and Fixture, Inc., 318 F.3d at 595 (4th Cir. 2003)
(“the district court concluded that `Byrnes' third expert
opinion, formulated on the day trial began and not disclosed to
defense counsel until defense counsel conducted voir dire of ...
Byrnes on the third day of trial, should have been excluded.’”).
Therefore, because the court finds that the defendant’s recent
mitigating actions are not a surprise to the plaintiffs, an
analysis of the second factor is not necessary.

Third, the

court finds that allowing the evidence of the defendant’s recent
mitigating measures will not disrupt the trial.
4

Lastly, the

court is persuaded by the defendant’s argument within their
response to the plaintiffs’ motion regarding the importance of
the evidence of their recent mitigating changes.

Specifically,

the court is persuaded by the defendant’s argument that it would
be unfair to allow the plaintiffs to introduce evidence of
defendant’s alleged wrongdoings without allowing the defendant
to introduce evidence of their mitigating changes to the Sholar
Farm.

Additionally, the court finds that the evidence can be

properly admitted under Rule 402 and 403 of the Federal Rules of
Evidence, as the evidence is relevant and the probative value of
the evidence outweighs any potential for prejudice.
The court finds that any error the defendant made during
discovery as it relates to the recent mitigating measures
discussed in this Memorandum Opinion and Order is substantially
justified and is harmless.

Therefore, the court concludes that

sanctions against the defendant are not proper. Likewise, the
court is not persuaded by the defendant’s request to strike the
Fourth Amended Sholar Fact Sheet.
The plaintiffs’ Motion to Exclude Evidence Regarding
Remedial Measures Implicated by Defendant’s October 25, 2018
Press Release, to Strike Fourth Amended Sholar Fact Sheet, and
For Sanctions is DENIED.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to all counsel of record.
5

IT IS SO ORDERED this 28th of November, 2018.
ENTER:
David A. Faber
Senior United States District Judge

6