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McGowan v. Murphy-Brown, LLC

United States District Court, E.D. North Carolina, Southern Division

May 28, 2018

WOODELL MCGOWAN, et al., Plaintiffs,
v.
MURPHY-BROWN, LLC d/b/a SMITHFIELD HOG PRODUCTION DIVISION, Defendant.

          ORDER

          W. Earl Britt Senior U.S. District Judge.

         This matter is before the court on the following motions in limine: Plaintiffs' Motion to Exclude Evidence or Arguments Regarding Hiring an Attorney (DE # 129); Plaintiffs' Motion to Exclude Medical Records (DE # 131); Plaintiffs' Motion to Exclude Evidence of Dismissed and Abandoned Claims and Parties (DE # 133); Plaintiffs' Motion to Exclude Expert Testimony from Defendant's Lay Witnesses (DE # 135); Defendant's Motion to Exclude Evidence of Alternative Technologies Used at Swine Farms in Other States (DE # 140); Defendant's Motion to Exclude Worker Health Related Evidence (DE # 144); Defendant's Motion to Exclude Misleading Financial Evidence (DE # 148); Defendant's Motion to Exclude Evidence of Lobbying and Other Political Activity (DE # 154); and Defendant's Motion to Exclude References to and Evidence of Chinese Ownership, Exports of Pork to China and Other Asian Nations, and Racial Issues (DE # 164).

         1. Plaintiffs move to exclude evidence or arguments regarding hiring an attorney pursuant to Federal Rules of Evidence 401 and 403. (DE # 129.) Defendant has filed a response in opposition to the motion. (DE # 197.) In the related case of McKiver v. Murphy-Brown LLC, No. 7:14-CV-180-BR, plaintiffs filed a virtually identical motion, which the court allowed. However, in doing so, the court suggested such testimony could possibly be relevant under certain circumstances and added the caveat that if during the trial defendant's counsel believed testimony on these issues would be appropriate and should not be excluded, i.e., fitting within the parameters of what the court suggested would be allowable, counsel could approach the bench and the court would hear argument. McKiver, (DE # 297, at 148:4-20). Defendant argues this case requires a different result, because here plaintiffs' retention of counsel is relevant to their “fear of” claims, complaints of odor, and the nature and extent of alleged injuries. The court disagrees, and, for the reasons stated in the McKiver case, the motion is ALLOWED with the caveat that defendant's counsel may request a bench conference at trial consistent with the court's prior ruling.

         2. Plaintiffs move to exclude medical records pursuant to Federal Rules of Evidence 401, 402, and 403. (DE # 131.) Defendant has filed a response in opposition to the motion. (DE # 182.) The court considered this issue on plaintiffs' virtually identical motion in the McKiver case, and allowed in part and denied in part the motion, reasoning as follows:

Whether the plaintiff or the witness had any of the conditions you're talking about is relevant and you certainly may ask the witness about that. And if the witness states an answer that is different from what the witness told the doctor or was treated for by the doctor, you may use the medical records for that purpose to show that. You may not just broadly introduce the medical records other than that type use.

McKiver, (DE # 297, at 137:17-240. Defendant argues that the deposition testimony of plaintiffs in this case, e.g., Vonnie Williams' testimony that the farm made her allergies worse and Elvis Williams' testimony that he believed the odor from the farm could be harmful to his long-term health, render their medical records directly relevant. The court disagrees and finds that its ruling in the McKiver case is appropriate here. Plaintiffs' motion is ALLOWED IN PART and DENIED IN PART, such that defendant may not broadly introduce plaintiffs' medical records, but may use them to impeach a witness whose testimony is contradicted by evidence contained in the medical records.

         3. Plaintiffs move to exclude evidence of dismissed and abandoned claims and parties. (DE # 133.) Defendant has filed a response in opposition to the motion. (DE # 193.) In the McKiver case, plaintiffs filed a similar motion, which the court allowed in part and denied in part. McKiver, (DE # 194, at 2). In doing so, the court ruled that while some evidence (not at issue in this case) was relevant to causation and would be allowed, “the defendant was precluded from introducing evidence of growers named as defendants in prior proceedings and plaintiffs' dismissed or abandoned claims.” Id. Defendant argues that at trial the McKiver plaintiffs repeatedly offered testimony regarding their desire for “change, ” and plaintiffs' counsel argued to the jury as to why the McKiver plaintiffs did not seek injunctive relief or sue the grower, but that pursuant to the court's ruling, defendant was unable to cross-examine the McKiver plaintiffs on these issues. To the contrary, defendant did address in the McKiver trial what it characterizes as plaintiffs' persistent theme of change. For example, in his opening statement, defendant's counsel stated, “So what is a nuisance case? It's not seeking injunctive relief. They could come to court and say, we have science to say you have to cover a lagoon, we have science to say you have to shut down the farm. They're not asking that. They're asking for financial compensation.” McKiver, (DE # 285, at 117:19-23). After one plaintiff testified about her complaints regarding the farm and her hope for change, on recross-examination defendant's counsel challenged her testimony by asking, “any of these issues that you've talked to the jury about now are nothing that you ever complained of to the county or to any of those same people, even to Mr. Kinlaw, at any point prior to getting involved in this lawsuit; is that right?” McKiver, (DE # 290, at 45:22-46:1). And, in closing, defendant's counsel argued, “[i]n a nuisance case - most nuisance cases ask for injunctive relief. Ask the Court to determine there is a problem and to fix it. Tell them to cover the lagoon, tell them to move the road. You'll see they're not asking for that. . . . [they] are asking for money. Pure and simple. That's what this is about.” McKiver, (DE # 296, at 66:1-7). The court finds, consistent with its ruling in McKiver, that evidence of dismissed and abandoned claims and parties is not relevant in this case and, further, presents a substantial risk of causing jury confusion. Plaintiffs' motion is ALLOWED.

         4. Plaintiffs move to exclude expert testimony from defendant's lay witnesses. (DE # 135.) Defendant filed a response in opposition to the motion. (DE # 195.) Defendant argues that (1) much of the testimony Plaintiffs seek to limit is fact, not opinion, testimony; (2) the witnesses may offer opinion testimony regarding scientific or technical subjects on which they have particularized knowledge by virtue of their positions or which were discussed in their 30(b)(6) depositions; (3) if the court finds that the witnesses need to be designated as experts in order to testify regarding any of the subjects discussed in plaintiffs' motion, defendant should be given leave to designate them accordingly; and (4) the court should deny plaintiffs' request to exclude various proffered exhibits defendant may seek to introduce under Federal Rules of Evidence 803(18). The Federal Rules of Evidence limit the opinion testimony of lay witnesses.

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Fed. R. Evid. 701. Plaintiffs filed a substantially similar motion in the McKiver case, which the court allowed, ruling that “no lay witness is going to give an expert opinion” and “if anybody has got any objection to the testimony of a witness, because you contend that the witness is not qualified to give that statement, you may make it at the time.” McKiver, (DE # 297, at 145:18- 25). The court finds no basis to deviate from that ruling in this case and allows the motion in that regard, but reserves ruling on (1) the issue of whether defendant may designate Kraig Westerbeek and Terry Coffey as experts and (2) the admissibility of exhibits not included in defendant's experts' reliance materials.

         5. Defendant moves to exclude evidence of alternative technologies used at swine farms in other states because it lacks foundation and any minimal probative value is outweighed by the risks of unfair prejudice, confusing the issues, and misleading the jury. (DE # 140.) Plaintiffs filed a response in opposition to the motion. (DE # 185.) In the McKiver case, the court considered this issue, heard argument from the parties, and denied defendant's motion. McKiver, ...


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